R (on the application of Joicey) v Northumberland County Council  EWHC 3657
The uniquely polarising aspect of wind turbine developments is that on the one hand there is an urgency to reduce greenhouse gases; on the other, objectors point to more immediate impacts on landscape and residential amenity. Whatever the outcome of such applications, there are European, international and domestic obligations for public participation in decision making (see for instance the UNECE Aarhus Convention and Directive 2003/35/EC for public participation in the environment).
However, the Aarhus Convention has limited application except through its implementation in European and domestic legislation (e.g the Environmental Impact Assessment - EIA Directive or Directive 2003/4/EC on public access to environmental information transposed into the Environmental Information Regulations 2004). On a domestic level, the Local Government (Access to Information) Act 1985 incorporates the “right to know” provisions into part VA of the Local Government Act 1972. Specifically, sections 100A, 100B, respectively, allow the admission of the public to press council meetings and access to the agenda and documents used at meetings.
100B, for instance requires, subject to exceptions, that documents must be open to inspection “at least 5 clear days” before meetings. Section 100E applies the relevant sections 100A to 100D to meetings of council committees and sub-committees. Additionally, section 18(1) of the Planning and Compulsory Purchase Act 2004 provides that a local planning authority must prepare a statement of community involvement which sets out the authority's policy as to the community involvement in the exercise of its functions. Publication policy will normally be included in such a statement.
Joicey v Northumberland
In R (on the application of Joicey) v Northumberland County Council  EWHC 3657 Justice Cranston considered the decision by Northumberland council to grant the applicant - Mr Barber - planning permission for a 47m to tip wind turbine on his land at Brackenside. The claimant in the judicial review was another farmer who had objected to the development. By the time court proceedings were issued there had already been two quashing orders of previous applications for planning permission at Brackenside due to a number of mistakes made in the planning process.
On this occasion, the legal grounds for the challenge centred on the availability of information relating to the application, noise assessment and, crucially, the interpretation of “financial involvement” when considering acceptable noise levels for nearby residents. The key aspect of the judgment came down to whether the dilatory publication of important planning documents is serious enough to warrant a quashing order.
The noise report
There had been concerns raised by objectors relating to noise nuisance - particularly given the existence of a planning permission for 6 new turbines nearby - and the consequential possibility of cumulative impact. A noise report was therefore produced by WSP Environmental Ltd in August 2013.
The report stated that it took into account the noise which would be generated when the nearby neighbouring turbine development was in operation. Predictive modelling was undertaken to assess potential noise levels at the properties closest to the Brackenside turbine. Brackenside Farm was owned by the applicant but the land included cottages occupied by tenants. The report assumed that all the occupiers at Brackenside had a financial involvement in the turbine development. If so, this would mean that the threshold guidance for acceptable noise levels is higher. The report concluded that there would be no significant cumulative noise impact – and so the noise would not need to be considered a determining factor in granting planning permission. Although the WSP report was created some time earlier than the final committee meeting, the report was not published on the council website or made available to the public at the council offices until 4 November 2013 – one day before the committee meeting.
The officer’s recommendation
The officer's report, weighing the benefits of CO2 emission reduction and national policies on renewable energy against potential environmental impacts, recommended approval of the Brackenside application, subject to conditions. The planning officer indicated that concerns had been raised regarding potential noise. The report added that the applicant had provided a noise assessment which concluded that the turbine could be operated in line with standard guidance on noise - ETSU-R-97 - for the nearest residential properties.
The predicted noise levels from the operational wind farm would be below the limits required by the guidance. Therefore, the report stated, it was considered that the development would not result in unacceptable impacts noise levels and, therefore, residential amenity. However, after the 75 page report was seen by some campaigners, they had requested that the Defendant postpone the committee meeting in order for the report to be considered more carefully. However, no such deferral was ordered and the committee met on 5 November 2013.
The committee meeting
At the committee meeting, the claimant spoke for his allotted 5 minutes, briefly raising the issue of the report and claiming that it was “fundamentally flawed” – and in particular, that the existing noise limits for the nearby 6 new turbines would leave no “headroom” for further turbine noise.
The committee then went on to resolve to approve the application. After the resolution, the Claimant wrote to the environmental protection manager, complaining that the report had not been made available in time and that there had been insufficient opportunity to study it before the meeting. If he had been given such time to prepare, he would have questioned, inter alia, the assumption made in the report that all residents at Brackenside had a financial involvement (and so attracting a higher threshold for noise levels).
To get around this the Council sent a letter to objectors inviting comments on the potential noise conditions which, theoretically, would take into account cumulative impacts. The Council then issued the Notice of Planning Permission on Friday 13 December 2013 and the claimant subsequently issued his application for judicial review.
The Claimant’s main argument was that there had been a series of failures by the council with regard to its duties under the Local Government Act 1972: to produce a list of background papers for the officer's report; to make available the noise assessment report; to make the report available or publish it on the Council's website allowing a reasonable time for its consideration as required by the Council's Statement of Community Involvement; and to give a fair opportunity for comment on the report at the planning committee meeting.
After commenting that he “took a dim view” of the council officer’s backdating of the report on the website when it was eventually published, Cranston J added,
Publication of a Statement of Community Involvement is a statutory obligation. In my judgment that paragraph [regarding publication on the website] in the Council's statement is a promise, going beyond the statutory obligations in the 1972 Act, giving rise to a legitimate expectation that there will be publication in accordance with its terms: see R (on the application of Majed) v Camden LBC  EWCA Civ 1029;  J.P.L. 621, -; R (on the application of Kelly) v Hounslow LBC  EWHC 1256 (Admin). It is a continuing promise, for otherwise the public's right to know what is being proposed regarding a planning application would be frustrated.
Of the Defendant’s argument that the claimant had the WSP noise assessment for 36 hours before the meeting and that he was able to speak about the report at the meeting, Cranston J said,
If this is an argument that the Council complied with its legal obligations to publish, it is not one I accept. Right to know provisions relevant to the taking of a decision such as those in the 1972 Act and the Council's Statement of Community Involvement require timely publication. Information must be published by the public authority in good time for members of the public to be able to digest it and make intelligent representations: cf. R v North and East Devon Health Authority Ex p. Coughlan  Q.B. 213, ; R (on the application of Moseley) (in substitution of Stirling Deceased) v Haringey LBC  UKSC 56, . The very purpose of a legal obligation conferring a right to know is to put members of the public in a position where they can make sensible contributions to democratic decision-making. In practice whether the publication of the information is timely will turn on factors such as its character (easily digested/technical), the audience (sophisticated/ ordinary members of the public) and its bearing on the decision (tangential/central).
However, the Defendant argued that the planning committee's decision was inevitable (for instance, the committee decision in favour of the turbine was based on an overwhelming majority) and that if the matter returned to the committee again the grant of permission would be a foregone conclusion.
The Defendant prayed in aid the test in Bolton MBC v Secretary of State for the Environment (1990) 61 P. & C.R. 343 at 353, (that if there is uncertainty as to whether consideration of a matter would have meant a real possibility of a difference to the decision, there is no basis for concluding that the decision is invalid because of its absence). However, Cranston commented on such cases and more recent discussion that they “are relevant material consideration cases”, but
. . the present case involves a breach of statutory duty to disclose information. However, the remedial test Maurice Kay LJ stated in Holder, taken from Simplex, is in line with the principle laid down by May LJ in R (Smith) v North Eastern Derbyshire Care Trust  EWCA Civ 1291;  1 WLR 3315, where there was a failure in the statutory duty to consult those affected by a change in medical services. Citing Simplex and other authorities, May LJ held that the probability that the decision after consultation would have been the same is not enough. The decision-maker must show that the decision would inevitably have been the same with proper consultation, if the claimant is to be denied relief. In my view this is the appropriate test in the analogous situation of a breach of right to know legislation: the claimant will be entitled to relief unless the decision-maker can demonstrate that the decision it took would inevitably have been the same had it complied with its statutory obligation to disclose information in a timely fashion.
Applying this test here, Cranston J concluded,
In the circumstances of this case the Council have not persuaded me that the decision would inevitably have been the same had the noise assessment report been available as it should have been. First, noise had been a key point which the Council had unlawfully determined twice previously. More time to prepare written representations, to accompany his oral presentation, might have enabled the claimant to persuade the planning committee to exercise caution in light of this background.
. . . . . .
Finally, there is the decision-maker in this case. It was a committee of politicians where the vote was not whipped. It is a very bold person who will hazard that in such circumstances a particular result is inevitable.
On the Defendant’s attempt to remedy the statutory breach by consulting on the conditions, he added, “this was no substitute for an opportunity to make representations as to whether planning permission should be granted in the first place. . . The committee had spoken, and although it could be reconvened, the inevitable institutional momentum would be to maintain the decision. .”
“Financial Involvement” and the quashing order
Cranston J also went onto consider several other grounds. Of these, he agreed with the Claimant that there had been a misapplication of the "financial involvement" aspect of noise assessment.
Under ETSU a higher noise limit is allowed for a turbine where properties affected have a financial involvement in it. But not all the occupiers at Brackenside had a financial involvement and the council failed to address this conflict with planning policy.
Cranston pointed out that under ETSU either residents or occupiers must be financially involved for the higher threshold to apply. “Clearly owners and tenants would be occupiers.”
Comment – “Materiality”
Cranston gave short shrift to the arguments from the Defendant that even if there had been a failure to provide access to the report in a timely manner and, consequently, a statutory breach, the provision of the report would have made little difference to the outcome.
In other words, the defect or wrong in the process leading to the decision was material: that it made a difference to the outcome. Such a test has consequences in deciding whether a decision is unlawful and also, finally, whether it merits a quashing order.
The decision underlines the sanctity of the democratic process and the importance of public participation in planning and environmental cases. However it is also a reminder of what may be lost to campaigners if the government is successful in pushing through its intended changes to the “materiality” test through the Criminal Justice and Courts Bill – which would effectively restrict access to justice for those challenging decisions by making the test much tougher (see Environmental Law Monthly April 2014 page 1).
The Criminal Justice and Courts Bill will reform the law on judicial review. The report stage of the bill was scheduled for 20 October 2014.
The Government's factsheet on the reform of judicial review (June 2014) under the Bill is available here.
This article was written by Justin Neal, one of our environmental law experts. It was originally published in Environmental Law Monthly in November 2014 and is reproduced here with their permission.