Category Archives: Wind Farms

Community donation immaterial consideration invalidating planning permission

The High Court case of Wright, R (on the application of) v Forest of Dean District Council & Anor [2016] concerned whether or not a local community donation, based on turnover generated by a wind turbine, amounted to a material consideration which it was lawful for the council to take into account when granting planning permission for the wind turbine.

The Environmental Report accompanying the planning application had offered benefits including:

“Annual community donations will also be made based typically on 4% of turnover (estimated at an average of around £15k to £20k each year for 25 years of operation – up to £500k to help address current and future community needs)…..”

The main ground of challenge to the permission was that this was not a material consideration that the council could lawfully have taken into account.

The court agreed:

“Simply being a contribution for community benefit related to a local strategy for health, social or cultural wellbeing does not make that contribution in and of itself material to a planning determination. It must pass the Newbury test and be for a planning purpose and be fairly and reasonably related to the development proposed. It is difficult to see how the provision of waterproof clothing for a play group or lunches for senior citizens has any proper bearing on the issues relevant to the regulation of land use and control of development which are at stake when considering whether or not to grant planning permission for a wind turbine. The opportunity to make provision for them from the turnover of the scheme is not a planning purpose and is not fairly and reasonably related to the development.”

The council was not entitled to take into account the offer of the local community donation as a material consideration in their planning decision. As a consequence the decision was unlawful.

The court “was not prepared to accept that there would have been no substantial difference to the outcome of the members’ decision-making process had they appreciated that they could not take account of the community donation in determining whether consent should be granted.”

The council’s decision should be quashed.

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

Insufficient reasons given to forego Environmental Impact Assessment

In developments for which pre planning Environmental Impact Assessments (“EIAs”) are not necessarily mandatory, ‘Screening’ is a procedure used to determine whether a proposed project is likely to have significant effects on the environment such as to require an EIA (“EIA” development”).

In England regulation 4 (7) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 provides that where a local planning authority adopts a screening opinion:

“…that opinion … shall be accompanied by a written statement giving clearly and precisely the full reasons for that conclusion.”

In Wales the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 continue to apply until 16 May 2017. The obligation to give reasons under regulation 4(6) of the 1999 Regulations only applies where the local planning authority adopts a screening opinion to the effect that “the development is EIA development.”

So currently in Wales, the Regulations require reasons to be given if the planning authority decides that the proposed development is EIA development, but those Regulations do not require reasons to be given if it is decided that the proposal is not EIA development.

However, whatever the position under UK Law, there is a duty to give reasons for a screening opinion that no EIA is required as a matter of EU law. That results from the decision of the European Court of Justice in (Case C-75/08) R (Mellor) v Secretary of State for Communities and Local Government [2010] which was a decision on Directive 85/337.

In the Court of Appeal Welsh wind farm Case of Jedwell v DH & Anor [2015] planning permission was challenged because the Council’s screening opinion gave no apparent consideration to whether an EIA would be required based on the development’s cumulative impact with other existing and proposed developments. The Council’s screening opinion did not inform the reader as to how the Council reached their screening opinion that no EIA was required.

The court agreed that what the Council said in the screening decision was simply the statement of a conclusion. It contained no reasoning. A reader of the opinion would not ascertain why it had arrived at it. It was inadequately reasoned.

The Council should have demonstrated that it had “actually determined” whether an EIA assessment was needed in accordance with the law.

For that it needed to demonstrate that it had applied its own mind to the relevant questions.

The Council’s reliance on the views of consultees was misplaced especially as most of the consulting took place after the screening opinion was adopted.

Did the planning officer consider that there was no cumulative impact?

Did she consider that there was some cumulative impact but that it was unlikely to be significant?

Was a neighbouring proposed scheme considered, or was it ignored or played down on the basis that no application had been made for that scheme yet?

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

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.

Planning Appeal: mistake of fact gave rise to mistakes of law

The case of Ecotricity Next Generation Ltd v Secretary of State for Communities and Local Government & Anor [2015] was an application made under s.288 of the Town and Country Planning Act 1990 to quash the decision of the Inspector to refuse an appeal to grant planning permission for a wind energy development including the erection of one wind turbine.

In East Northamptonshire DC v Secretary of State for Communities and Local Government [2014] , the Court of Appeal gave guidance on the approach under Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990:

“Parliament’s intention in enacting s.66(1) was that decision makers should give ‘considerable importance and weight to the desirability of preserving the setting of listed buildings when carrying out the balancing exercise’.”

A failure properly to understand and apply a relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration and will, therefore, be an error of law, open to challenge in the courts.

In the Ecotricity Next Generation Ltd case the local church was a Grade 1 listed building. The Inspector mistakely found that the church tower would be seen in the same views as the turbine and so “the turbine would be apparent in the setting of this heritage asset.”

Whether or not “the church tower would be seen in the same views as the turbine” was not a matter of planning judgment within the exclusive domain of the decision maker.

A decision maker is under a duty to properly inform himself of the information relevant to his decision.

A mistake on an established fact which was uncontentious and objectively verifiable giving rise to unfairness is a separate head of challenge on a point of law if it can be shown that the mistake had played a material, though not necessarily decisive, part in the tribunal’s reasoning.

The Inspector’s finding that “the church tower would be seen in the same views as the turbine”, was “a mistake as to an established fact which was uncontentious and objectively verifiable” and played a material part in the Inspector’s reasoning.

The error gave rise to unfairness to the Claimant and amounted to an error of law.

Or it could be said that the Inspector fell into error by failing to properly inform herself of evidence indicating only one location at which there could be a view of the church tower, behind the proposed turbine – and then only distant.

Having regard to section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, there was at least the possibility that the overall balance would have been different if the Inspector had proceeded to determine the appeal on the correct factual basis. Accordingly the High Court quashed the Inspector’s decision to refuse the appeal.

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

Planners’ usual duty “to have regard to” required only specific consideration

East Northamptonshire District Council v Secretary of State for the Communities and Local Government [2014] concerned granting planning permission for development that affected a listed building or its setting. Here the planning inspector had the duty, under section 66 (1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the PLBCAA”), to “have special regard to” the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possessed. It was ruled there that the planning inspector had not complied with it.

In Howell v Secretary of State for the Communities and Local Government [2014] the claimant tried to quash a planning inspector’s grant of planning permission for a single wind turbine on farmland fringed by the Norfolk Broads.

Relying on the above case the claimant said the inspector had failed to comply with section 17A of the Norfolk and Suffolk Broads Act 1988 (“the NSBA”) which required the Secretary of State, and his representative the inspector, to “have regard to” the purposes of conserving and enhancing the natural beauty, wildlife and cultural heritage of the Broads in exercising or performing any functions relating to, or affecting land in the Broads.

The court distinguished the East Northamptonshire case.

There the words “have special regard to” in section 66(1) of the PLBCAA meant that considerable importance and weight had to be given to the desirability of preserving a heritage asset and its setting, when balancing the development proposals against other material considerations. It created a presumption against granting planning permission.

But in this case section 17A of the NSBA applied, and it imposed on the local planning authority or the inspector, a lesser duty to “have regard to”.

This meant only that the issue had to be specifically considered. I.e. not that it had to be given more weight than other issues.

So the court rejected the claimant’s application to quash the inspector’s decision.

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

DB Contractor’s absolute performance obligation not qualified by other reasonable care duties

Absolute obligations are obligations requiring full performance and only full performance will fulfil that obligation.

Professionals are generally expected to perform their obligations with reasonable skill and care – a lesser standard to comply with the terms of professional indemnity insurance (PII) policies.

Defects caused by an employer’s specification are not a contractor’s responsibility unless the contractor guarantees the construction to be fit for a specific purpose or otherwise expressly undertakes responsibility for those defects.

In MT Høgjaard A/S v E.ON Climate and Renewables UK Robin Rigg East Limited and others [2014] the employers, E.ON Climate and Renewables UK Robin Rigg East Limited (“E.On”), required MT Høgjaard A/S (“MTH”) to provide the design, fabrication and installation of the foundations for wind turbine generators for an offshore Scottish wind farm.

MTH’s basic contract obligation to E.On was to provide its services with the “due care and diligence expected of appropriately qualified and experienced designers, engineers and constructors.”

When MTH undertook the design, MTH did not know that an international standard for the design of offshore wind turbines and grouted connections contained an error.

One of the performance requirements in MTH’s contract with E.On was that “the design of the foundations shall ensure a lifetime of 20 years in every aspect without planned replacement…”

The foundations were defective and the remedial work cost EUR 26.25 million.

Was MTH liable to E.On for those defects?

Although MTH had itself relied on an incorrect standard for the foundations’ designs, MTH had, in the contract, warranted to E.On that the foundations would have a service life of 20 years. Due to that fitness for purpose guarantee it gave, it was still contractually obliged to provide a design that met that guarantee despite there being an error made by someone else. This was not in any way qualified by the co-existence of reasonable skill and care obligations elsewhere in the same contract.

The court pointed out that construction contracts usually contain both reasonable skill and care and absolute obligations and here the different standards were not in conflict.

This blog has been posted out of general interest. It does not remove 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.