Battle conditions

A wind farm case in the Court of Appeal has updated the law on how planning conditions should be interpreted, writes Gordon Nardell QC.

The Court of Appeal has given judgment in Hulme v Secretary of State for Communities and Local Government [2011] EWCA Civ 638, the latest round in the long battle over the proposed 9-turbine windfarm at Den Brook, Devon – featured in BBC2’s Windfarm Wars series. In the process it has updated the law on interpretation of planning conditions.

Renewable energy developer RES had obtained planning permission on appeal in 2008. Local resident Mike Hulme lost a High Court s.288 challenge based on (among other things) non-disclosure of the data on which RES had based its inquiry noise evidence. (Hulme v. SSCLG [2008] EWHC 637 (Admin)). But that decision was reversed, by consent, in the Court of Appeal. Following a re-run inquiry, a different inspector again granted permission and Mr Hulme brought a further s.288 challenge alleging some 12 defects. One complaint concerned the wording of conditions designed to deal with the phenomenon of Amplitude Modulation (AM), a characteristic of turbine noise, also known as “blade swish”. The inspector found that the possibility of AM could not be ruled out, and that if present it could cause sleep disturbance. So, for precautionary reasons, he imposed two conditions.

Condition 20 defined the characteristics of “greater than expected AM”. Condition 21 was in Grampian terms, prohibiting the development from generating electricity until the local authority had approved a complaint-driven scheme requiring measurement of noise emissions, its stated purpose being “to evaluate compliance with condition 20”.

Mr. Hulme argued that the conditions were defective because (a) they did not, in terms, require compliance with condition 20 nor provide any other remedy in the event AM were found to be present; and (b) the wording of the condition 21 enabled the scheme to terminate before the end of the 25-year life of the development.

Frances Patterson QC, sitting as a High Court judge, dismissed this and Mr. Hulme’s other complaints ([2010]EWHC 2386 (Admin)). The Court of Appeal granted permission to appeal on this sole ground.

Mr. Hulme contended that the only way the conditions could be made effective was to insert an implied requirement to comply with the terms of condition 20 for the life of the development. But that would fall foul of the Court of Appeal’s well-known earlier decision in Trustees of Walton Charities v. Walton & Weybridge DC [1970] 21 PMCR 411, in which Widgery LJ remarked:

“I have never heard of an implied condition in a planning permission and I believe no such creature exists. Planning permission… is not simply a matter of contract between the parties.

"There is no place…within the law relating to planning permission for an implied condition. Conditions should be expressed, they should be clear, they should be in the document containing the permission.”

In similar vein Mr. Hulme relied on Sevenoaks District Council v First Secretary of State [2004] EWHC 771, in which Sullivan LJ refused to read a condition requiring prior approval of details as impliedly requiring the approved details to be implemented.

So, argued Mr. Hulme, the conditions could not, in law, achieve their intended purpose; that purpose went to the heart of the permission, hence the whole decision should be quashed.

Elias LJ held that the decision letter made it obvious that the inspector intended the development to comply throughout its life with the AM limits defined in condition 20. Therefore conditions 20 and 21 had to be read as imposing a requirement to comply. That did not offend the Walton case because: “The implied term relied on in Walton depended on reading into the planning permission an obligation which was said to arise from extrinsic circumstances. Here, in my judgment, the obligation not to contravene the standards set out in condition 20 arises as a necessary implication from the language of the express conditions when read in the context of the decision letter. Indeed, I think it is more accurate to describe it as a matter of construction rather than implication. But even if it can be described as an implied condition, it is very different in nature from that envisaged in the Trustees of Walton case.“

Elias LJ recognised the result was “not easy to reconcile” with Sevenoaks. But that case had not involved conditions contained in a decision letter (they were condition imposed on a LPA grant of permission), and in any event Sevenoaks “ought not to dictate the outcome in this case”. [2011] EWCA Civ 638, [37].

Patten LJ commented that despite Walton there was a “limited analogy” with principles of construction of contracts: as Lord Hoffmann said in A-G Belize v Belize Telecom [2009] 1 WLR 1988, the implication of a term to give effect to the parties’ intention “is not an addition to the instrument. It only spells out what the instrument means”. [42], [43]

So RES kept their planning permission. Indeed one subtext of the judgment is the court’s obvious reluctance to see an otherwise impeccable inspector’s decision quashed, resulting in a third inquiry on the same appeal. But the more important subtext is this. It would be bizarre for the principles governing construction of planning permissions to remain as they were in 1970 while principles of interpretation elsewhere in the law have marched on. That is true not just of private documents such as contracts but also public instruments including legislation. Influenced by EU law and more recently the Human Rights Act, the courts are more willing than ever to read words down, in and out in order to ensure – so far as possible – that an instrument achieves its objectives or complies with overarching legal norms. True, a planning permission is a public document to which a degree of certainty should attach; but it is hard to see why this category of document alone should attract a more conservative approach to interpretation than the courts now take even towards primary legislation. In other words Hulme signals a move to a bolder judicial attitude when it comes to interpreting conditions whose purpose is clear but whose language leaves room for doubt.

This suggests, despite Elias LJ’s ambivalence about Sevenoaks, that conditions contained in LPA permissions rather than inspector’s decisions should in principle benefit from the same creative approach. The difference is really one of evidence: whereas the inspector’s intentions will be spelled out in the decision letter containing the conditions, in the case of a LPA permission the decision notice is likely to contain only brief and formulaic reasons, so it may be necessary to read the conditions together with the officers’ report. That is itself a public document, and it hard to see why there should be a legal certainty objection to judicial efforts to make conditions do the job everyone intended them to do. However, prevention is better than cure. The courts will not always be able to ride to the rescue of ambiguous conditions. Despite Hulme, decision-makers should take care that conditions attached to planning and other consents are well thought-out, clear and precise.

Gordon Nardell QC, who appeared for RES, is a barrister at 39 Essex Street.