Wind power – alternative energy – development in Green Belt

Christopher James Holder v Geddling Borough Council [2014] EWCA Civ 599

Environmental concerns often come to logger heads in the consideration of wind turbine applications – particularly where the perceived benefits to cutting greenhouse emissions contrast with the concerns over impacts on the local environment. 

Holder v Geddling

The Claimant in this case – Mr Holder – was an objector to a planning application for a 66 metre-high wind turbine on farmland in the Nottingham Greenbelt. The planning application had met with strong local opposition including from the local action group - Woodborough and Calverton Against Turbines (WACAT).

The landowners – Mr and Mrs Charles-Jones – who had initially received planning permission for two small turbines several years before – were granted planning permission for the turbine from the local planning authority – Gedling Borough Council in November 2011. By the time the case was heard in the Court of Appeal, the wind turbine had been erected.

The claimant’s case had been unsuccessful in the High Court and the case was then appealed to the Court of Appeal. 

Inappropriate Development in the Green Belt

Section 70 (2) of the Town and Country Planning Act 1990 requires a local planning authority “to have regard to the provisions of the development plan, so far as material for the application, and to any other material considerations.” 

The local planning authority’s planning officer who had recommended the application be granted by the planning committee accepted in his report that the development was “inappropriate development” for the purposes of relevant planning policy (Planning Policy Guidance Note 2 Green Belts - now superseded by the National Planning Policy Framework – NPPF) which set out a “presumption” against inappropriate development in the Green belt, “except in very special circumstances”. For permission to be granted, it had to be demonstrated that the harm was “clearly outweighed by other considerations”.  

Although the planning officer concluded that the development would not “unduly materially impact on the openness of character of the site and wider locality” there would be a “major visual impact” on bridleway users. But he reassured the planning committee in his report that the very special circumstances to allow development applied. 

The officer referred to the materiality of the wider environmental and economic benefits of renewable energy proposals and the policy that “very special circumstances may include the wider environmental benefits associated with increased production of energy from renewable sources.”

He then went on to say in interpreting and applying the policy, an assessment of the likely amount of energy to be generated by the present proposal in relation to the harm caused was not required, but “should be based around the wider economic and environmental benefits that renewable energy generation brings”.

The wider economic benefits included farm diversification; the environmental benefits related to the reduction in carbon emissions.  

Non-material planning issues

He set out in his report a list of “non-material planning issues” which included the possibility that granting planning permission may set a precedent for other wind turbine development nearby; that the turbine would not generate a significant amount of electricity and would be inefficient; that the proposal would only benefit the applicant financially; that the turbine should be sited outside the greenbelt on degraded landscape and that there were other alternative methods of producing renewable energy. 

By the time the case arrived at the Court of Appeal, the central issues related to the ambit of the  “material considerations” (for the purposes of the Town and Country Planning Act 1990) – and whether, if the claim were successful, a quashing order should be granted – as the wind turbine had now been erected. 

Precedent

The planning officer had advised the planning committee that the possibility that granting planning permission for this development would set a precedent was a “non-material consideration”. 

Lord Justice Maurice Kay, commented, “whilst, of course no two planning applications are exactly  the same, a grant of planning permission in the present case would undoubtedly be advanced as a precedent in relation to a similar application in the same area and, unless other matters such as a greater visual impact rendered it indistinguishable, it would have real precedent value. It is significant that the features said to constitute “very special circumstances” are essentially generic features which could be claimed in relation to comparable sites. In my judgment, in a case where the bar is set as high as “very special circumstances”, the advice that precedent was incapable of achieving material consideration status was simply wrong. This, in itself, vitiated the ultimate decision.” (para 15)
 

Alternatives

The planning officer also advised the committee that proposals that the turbine should be located elsewhere than in the greenbelt, and that other forms of energy production should also be taken into account - were non-material considerations.

However, the planning applicants had already been granted planning permission for two small turbines and officers at the council had raised concerns that the existing permission should therefore be considered as an alternative. Lord Justice Maurice Kay held that such factors should be material considerations. 

 

Efficiency

The officer had also suggested that considerations of whether the proposed turbine would produce a significant amount of energy were non-material. 

The defendant council argued in its submissions that the applicable policies were designed to encourage renewable energy production and that the actual production level of the turbine was irrelevant and the market would discourage inefficient installations

Lord Justice Maurice Kay commented, “it cannot be the case that a very large but unproductive and inefficient installation ranks equally with a small but extremely efficient one when it comes to evaluating “very special circumstances.” Size, efficiency and ability to meet need are all considerations relevant to the issue of “very special circumstances”. (para 22)

Discretionary remedy: was it fair to grant a quashing order?

Lord Justice Maurice Kay held that the failure to consider the material considerations which were listed as non-material by the planning officer were not trivial and it could not be argued that the committee would have reached the same decision if the factors had been considered (see Simplex GE (Holdings) Ltd. V Secretary of State for the Government [1988] PLR 25]). 

He went on to say that although it was “regrettable” that there had been such delay in the court process, the developers had purchased the turbine and erected it when they knew that the claimant was seeking permission to appeal, and “were not compelled to proceed as they did”. He continued, “planning permission is not simply a private matter. It is a decision of public authority in discharge of statutory obligations the purpose of which is to serve the public interest.” However, he added, “I would not expect the council to take enforcement proceedings in advance of reconsideration by the planning committee, but if their reconsideration were to be adverse to Mr and Mrs Charles-Jones, they would only have themselves to blame for their precipitate action.” (para 31)

Comment

There is clearly a tension between policies on renewables and impact on greenbelt. But the judgement shows that when considering the “very special circumstances” of an application for a wind turbine – or indeed another renewable energy development such as hydropower on a river, solar panels and so on –  the level of energy production should be considered in the balancing exercise and it is not simply a matter of arguing wider benefits.

In the present case, where there had been a development on green belt land, the relevant planning policy – now found in the NPPF – requires that there is a presumption against granting planning permission. However, it could be argued that this case might have wider precedent value for developments in or near to areas or sites that have been designated (e.g  Areas of Outstanding Natural Beauty). Many local plans, for instance, contain presumptions against development which interplay with exceptional circumstances and benefits – for instance with renewable energy projects. In such situations, the balancing exercise in considering the applications needs to take into account not only the wider issues of renewables and renewables policy but the specific output and characteristics of renewables developments, weighed against the potential harm to the area or site. 

The judgment is also a reminder that pressing ahead with a development in the face of an un-concluded legal action can be risky. However, as Lord Justice Maurice Kay observed, the new Planning Court should fast-track such cases. Speedier processing of cases may put an end to the delay which might encourage “precipitate” action by developers.

This article was written by Justin Neal, one of our environmental law experts. It was originally published in Environmental Law Monthly in July 2014 and is reproduced here with their permission.


 

 

 

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