Category Archives: Sustainable Energy

Tail piece to planning condition may subvert democratic and statutory planning processes

In a planning condition attached to a planning permission, a “tailpiece” to that condition may on it’s face enable development to take place which could be very different in scale and impact from that applied for, assessed or permitted.

It thereby purports to enable a development to be carried out in a way that bypasses any statutory planning process.

In R (Midcounties Co-operative Ltd) v. Wyre Forest DC [2009] outline planning permission was granted for a new class A1 supermarket. The description of development in the planning permission did not specify the floor space permitted, but the application incorporated the specifications of floor space.

Condition 6 of the planning permission granted provided that the food store approved should not exceed the specified maximum “unless otherwise agreed in writing with the Local Planning Authority.” The High Court held that the tailpiece to condition 6 was unlawful as it undermined the effect of specifying floor space limits. Worse still the condition could not be severed from the planning permission. The floor space limits were of central importance.

In Hubert v Carmarthenshire County Council [2015] condition 21 to the grant of planning permission was that the wind turbine approved should be 40 metres to the centre of the hub and 67 metres to blade tip, unless given the written approval of the local planning authority.

The High Court ruled that the Midcounties principle applied here, the tailpiece to the condition was bad. The officer’s report had recognised the importance of the turbine’s dimensions, but condition 21 as drafted allowed all the safeguards to be sidestepped.

Given the centrality of condition 21 to the subject matter of the permission and the significance of the turbine’s dimensions to it’s environmental effects. The words of the tailpiece would permit variations in height so that the scale and impact of the turbine would be different from that covered by the planning permission actually granted.

The breadth of the words used in the condition meant that it could not be interpreted as being restricted to minor variations.

The condition allowed variations, up or down, and without any restriction either way, from the dimensions the Council had assessed and specified.

Indeed, the permission itself admitted that the conditions imposed could permit something different from that applied for because it expressly said that the development being permitted was that defined in the application materials “unless amended by any attached condition”.

It would be quite wrong for the planning permission to be the subject of public debate and democratic decision-making in the Council, only then to be capable of being side-stepped by use of the tailpiece. The tailpiece was therefore unlawful and had to be severed from condition 21.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Local development plan did not exclude Planning Committee’s right to find benefits outweighed detriments

Plant, R (On the Application Of) v Pembrokeshire County Council & Anor [2014] concerned planning for a wind farm close to an iron age fort.

The Planning Committee found that the development proposal was contrary to Policies GN1 (landscape) and GN38 (historic environment) of the Local Development Plan (“LDP”) but concluded that the development was “environmentally acceptable” and thus in compliance with Policies GN4 (renewable energy) and SP1 (sustainable development).

The claimant submitted that a development which contravenes any environmental policy within Policies GN1 to GN4 and GN33 to GN38 could not, legally, be “environmentally acceptable”, and hence could not be in compliance with Policy GN4 or Policy SP1 or, indeed, with the LDP.

So any adverse effect of a proposed development on landscape character – or on any landscape of historical, cultural or archaeological importance, including setting, meant that development could not be in accordance with the LDP.

The claimant said it was a policy that was unlikely to be overridden by any other material considerations including benefits that might accrue from the project – however small the adverse impact of the landscape or however great the benefits-even where those might have been environmental benefits.

The High Court said Policy SP1 was concerned with “sustainable development”. It required only that proposals demonstrate how positive impacts would be got and negative effects minimised, so that an informed decision could be made on sustainability.

Anyway, a development did not become “unsustainable” simply because, in one respect, it had an adverse economic, social or environmental impact; or because it was contrary to one of the GN policies.

Whether a development is sustainable needs an assessment of whether overall the development achieves a positive economic, social and environmental impact; i.e. whether, on the basis of all the material factors, the proposed development is appropriate and acceptable in planning terms.

Nothing in the LDP entrenched the landscape character in the way in the claimant suggested. It would have been contrary to the overarching aim of the LDP.

Policy GN4, required the support of development which enabled the supply of renewable energy through environmentally acceptable solutions. That required judgment as to whether, based on all material considerations weighted as the planning authority considered appropriate, the development applied for was environmentally acceptable overall.

The policy could not exclude a development because a single aspect had some adverse environmental impact.

Here with other material considerations, the adverse environmental impact caused by the proximity of the scheduled ancient monuments, had to be balanced against the positive environmental impact of contributing to renewable energy resources.

It had been concluded by the report to the Committee that the adverse impact of the former was outweighed by the latter. In other words, that, overall, the development was environmentally beneficial. That was a planning judgment Committee had clearly, been entitled to make.

This blog is posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.