Holder, R (on the application of) v Gedling Borough Council & Ors [2018] EWCA Civ 214

Case No C1/2016/4728[2018] EWCA Civ 214
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2016] EWHC 3095 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
THE HON. MR JUSTICE GREEN
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/02/2018
Before
THE RT HON THE LORD BURNETT OF MALDON,LORD CHIEF JUSTICE OF ENGLAND AND WALESTHE RT HON LORD JUSTICE SALESTHE RT HON LORD JUSTICE FLAUX
Between
The QueenAppellanton the application of:AppellantHolderAppellantGedling Borough CouncilRespondentMr and Mrs John Charles JonesInterested Parties
Richard Harwood QC (instructed by Harrison Grant Solicitors) for AppellantRichard Kimblin QC (instructed by Gedling Borough Council) for RespondentHearing Hearing date: 1 February 2018
JudgmentThe Lord Burnett of Maldon:
[1]This is the judgment of the court.[2]On 18 June 2015 a written ministerial statement (“the Statement”) was made by the Secretary of State for Communities and Local Government which set out new considerations touching applications for planning permission for wind turbines. The issue in this appeal is whether in granting planning permission for a wind turbine Gedling Borough Council misinterpreted the Statement.[3]The appellant challenges the grant of planning permission for construction of a 67.6 metre high wind turbine on a farm close to the village of Woodborough in Nottinghamshire. The turbine has a hub height of 50.09 metres and a blade length of 16.7 metres. The farm is in a rural area which is part of the Green Belt. The wind turbine is intended to provide power for the farm.[4]Planning permission for the wind turbine was granted by the planning committee of the respondent Council on 20 April 2016. The grant of permission was in accordance with the recommendation of the Council’s planning officer in a careful and detailed report on the application for permission. The officer’s report advised that the planning committee could conclude that there were “very special circumstances” to justify the grant of permission for the development in the Green Belt, in accordance with the test laid down in paras. 87-88 of the National Planning Policy Framework (“NPPF”). It also advised that the planning committee could conclude that the development complied with guidance on proposed wind energy developments in the written ministerial statement.[5]The appellant is a member of a local group of objectors, Woodborough and Calverton Against Turbines (“WACAT”). He commenced these judicial review proceedings to challenge the grant of permission on seven grounds. Green J dismissed the challenge on all grounds. The appellant has been granted permission to appeal to this court in relation to only one of those grounds, which concerns the Statement. The appellant contends that the officer in his report misinterpreted the Statement and hence gave incorrect advice that the planning committee was entitled to conclude that the development complied with its guidance. This was the seventh ground of challenge below, dealt with by the judge between paras. [60]-[71]: [2016] EWHC 3095 (Admin).

The legislative and policy context

[6]Limiting carbon emissions in an effort to arrest global warming and climate change is a major policy objective of the government. EU law and national law, in the form of the Climate Change Act 2008, impose challenging national targets to reduce carbon emissions and seek to encourage a shift to utilising renewable sources of energy.[7]That policy objective is also carried into section 10 of the NPPF, headed “Meeting the challenge of climate change, flooding and coastal change”. Section 10 includes the following policy guidance: “93. Planning plays a key role in helping shape places to secure radical reductions in greenhouse gas emissions, minimising vulnerability and providing resilience to the impacts of climate change, and supporting the delivery of renewable and low carbon energy and associated infrastructure. This is central to the economic, social and environmental dimensions of sustainable development.94. Local planning authorities should adopt proactive strategies to mitigate and adapt to climate change,[1] taking full account of flood risk, coastal change and water supply and demand considerations.95. To support the move to a low carbon future, local planning authorities should: ● plan for new development in locations and ways which reduce greenhouse gas emissions; ● actively support energy efficiency improvements to existing buildings; and ● when setting any local requirement for a building’s sustainability, do so in a way consistent with the Government’s zero carbon buildings policy and adopt nationally described standards.96. In determining planning applications, local planning authorities should expect new development to: ● comply with adopted Local Plan policies on local requirements for decentralised energy supply unless it can be demonstrated by the applicant, having regard to the type of development involved and its design, that this is not feasible or viable; and ● take account of landform, layout, building orientation, massing and landscaping to minimise energy consumption.97. To help increase the use and supply of renewable and low carbon energy, local planning authorities should recognise the responsibility on all communities to contribute to energy generation from renewable or low carbon sources. They should: ● have a positive strategy to promote energy from renewable and low carbon sources; ● design their policies to maximise renewable and low carbon energy development while ensuring that adverse impacts are addressed satisfactorily, including cumulative landscape and visual impacts; ● consider identifying suitable areas for renewable and low carbon energy sources, and supporting infrastructure, where this would help secure the development of such sources;[2] ● support community-led initiatives for renewable and low carbon energy, including developments outside such areas being taken forward through neighbourhood planning; and ● identify opportunities where development can draw its energy supply from decentralised, renewable or low carbon energy supply systems and for co-locating potential heat customers and suppliers.98. When determining planning applications, local planning authorities should: ● not require applicants for energy development to demonstrate the overall need for renewable or low carbon energy and also recognise that even small-scale projects provide a valuable contribution to cutting greenhouse gas emissions; and ● approve the applicationif its impacts are (or can be made) acceptable. Once suitable areas for renewable and low carbon energy have been identified in plans, local planning authorities should also expect subsequent applications for commercial scale projects outside these areas to demonstrate that the proposed location meets the criteria used in identifying suitable areas. [1]. In line with the objectives and provisions of the Climate Change Act 2008] [2]. In assessing the likely impacts of potential wind energy development when identifying suitable areas, and in determining planning applications for such development, planning authorities should follow the approach set out in the National Policy Statement for Renewable Energy Infrastructure (read with the relevant sections of the Overarching National Policy Statement for Energy Infrastructure, including that on aviation impacts). …] …” ● actively support energy efficiency improvements to existing buildings; and [1]. In line with the objectives and provisions of the Climate Change Act 2008] [2]. In assessing the likely impacts of potential wind energy development when identifying suitable areas, and in determining planning applications for such development, planning authorities should follow the approach set out in the National Policy Statement for Renewable Energy Infrastructure (read with the relevant sections of the Overarching National Policy Statement for Energy Infrastructure, including that on aviation impacts). …]

● actively support energy efficiency improvements to existing buildings; and

[8]The Statement reads as follows:
"I am today setting out new considerations to be applied to proposed wind energy development so that local people have the final say on wind farm applications, fulfilling the commitment made in the Conservative election manifesto. Subject to the transitional provision set out below, these considerations will take effect from 18 June and should be taken into account in planning decisions. I am also making a limited number of consequential changes to planning guidance. When determining planning applications for wind energy development involving one or more wind turbines, local planning authorities should only grant planning permission if: • the development site is in an area identified as suitable for wind energy development in a Local or Neighbourhood Plan; and • following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing. In applying these new considerations, suitable areas for wind energy development will need to have been allocated clearly in a Local or Neighbourhood Plan. Maps showing the wind resource as favourable to wind turbines, or similar, will not be sufficient. Whether a proposal has the backing of the affected local community is a planning judgement for the local planning authority. Where a valid planning application for a wind energy development has already been submitted to a local planning authority and the development plan does not identify suitable sites, the following transitional provision applies. In such instances, local planning authorities can find the proposal acceptable if, following consultation, they are satisfied it has addressed the planning impacts identified by affected local communities and therefore has their backing."
[9]The present case concerns a planning application which was lodged before the Statement was promulgated, so it is the transitional provision in the final paragraph which is applicable.[10]The Statement is a material consideration for the purposes of section 38(6) of the Planning and Compulsory Purchase Act 2004, which is capable of outweighing policy in the development plan for the area. However, in this case the planning officer and the planning committee concluded that the development was in accordance with the guidance in the Statement because the planning impacts were sufficiently addressed to sustain the conclusion that the proposal had local backing. The issue is whether their interpretation of the Statement is correct or whether, as the appellant submits, a planning impact can only be “addressed” if it is eliminated or resolved.

Factual background

[11]The farm is situated in rural Green Belt land. There are a total of 73 listed buildings, 4 conservation areas and 3 scheduled monuments within the 5 km zone of a “Theoretical Visualisation Study Area” by reference to which the Council assessed the planning application.[12]A previous grant of planning permission in 2011 for a different wind turbine development was quashed by the courts in 2014. In relation to that development proposal, the Council received 1125 letters of representation objecting to the proposal as originally submitted and 100 letters in support.[13]The owners of the farm then put in the application for permission for the present proposed development, on the basis of revised plans. 67 letters of objection to the revised development were received by the Council in response to a local consultation exercise, with 176 letters in support of it. WACAT made representations objecting to the scheme which raised a number of issues, including noise and vibration, shadow flicker, impact on the Green Belt, impact on the historic environment and impact on the landscape and visual amenity in the area.[14]The officer’s report reviewed the consultation responses and relevant policies. In section 5 it set out an assessment of the planning considerations. This included, at para. 5.8, setting out the relevant part of the Statement and advising that it should be accorded substantial weight:
"I would recommend that the decision maker should attach substantial weight to the Ministerial Statement and whether the planning impacts have been addressed as this represents the most recent expression of government planning policy for onshore wind… my interpretation of the wording of the Ministerial Statement is that if the concerns raised by residents had been addressed to the point where the impact of the development is acceptable then permission can be granted. The statement goes on to confirm that whether the impacts are acceptable and therefore has the backing of the local community as a 'planning judgment for the local planning authority'. In applying the transitional provision to this application the representations received by the local community had been considered."
[15]Section 6 of the officer’s report reviewed in detail the arguments based on renewable energy in respect of the development. Section 7 dealt at some length with the issues in relation to Green Belt policy, concluding that there were very special circumstances which indicated that this development in the Green Belt would be acceptable. That conclusion is not in issue before us. Section 8 dealt with public benefits and the presumption in the NPPF in favour of sustainable development. Section 9 dealt with the local landscape and visual amenity. It noted that the site for the proposed turbine had been carefully selected to minimise its prominence and visibility and that the applicant had undertaken a landscape and ecological management plan to enhance native hedgerows together with tree planting on the site to mitigate localised visual impact. It was also noted that in their comments the County Landscape Team concluded that the proposal was acceptable, on landscape grounds. Section 10 dealt with issues relating to cultural heritage. Section 11 dealt with nature conservation issues and section 12 with the impact on local residents. Section 16 dealt further with the “very special circumstances” test for development in the Green Belt and the overall planning balance.[16]Section 17 set out the officer’s conclusions in support of his recommendation that planning permission should be granted. In para. 17.1, he referred to para. 98 of the NPPF (set out above) and concluded in light of the discussion in the earlier sections of the report that it had been demonstrated, on balance, that “the planning impacts have been addressed, are outweighed by the public benefits that result from the scheme, and therefore the impacts of the proposal have been made acceptable.” At para. 17.2, the officer wrote:
"In considering the impacts of the proposed development, the planning issues raised by the local community have been considered [in the previous sections of the report]. It is considered that on balance the proposals are acceptable and that any harm material to the determination of this proposal is outweighed by the benefits the turbine will bring. In respect of the Ministerial Statement released on 18th June 2015, if the concerns raised by residents have been addressed to the point where the impact is made acceptable, then permission can be granted. The statement goes on to confirm that whether the impacts are addressed and therefore has the backing of the local community is 'a planning judgment for the local planning authority'. In my opinion all the planning matters raised by those objecting to the scheme have been acceptably addressed and outweighed by the overall benefits of the proposal."

The ground of appeal: discussion

[17]Mr Harwood QC, for the appellant, contends that the planning officer, and hence the planning committee which accepted and acted on his report, misinterpreted the final paragraph of the Statement, set out above, which deals with transitional cases. His submission to the judge (set out at [65]) and again to us is that, on the proper interpretation of that paragraph of the Statement:
"Planning impacts which are raised by the local affected community are only addressed if they are found not to be harmful, whether on the original scheme or by mitigation. They are not addressed if they exist as harms, but are said to be outweighed by benefits."
[18]Mr Harwood says that the words in the Statement, “local planning authorities can find the proposal acceptable if … they are satisfied it has addressed the planning impacts identified by affected local communities and therefore has their backing”, should be read as meaning that an authority has to be satisfied that the proposal has resolved (i.e. eliminated) all the negative planning impacts identified by any member of the relevant local community. In this case, members of the local community, in particular WACAT, referred to negative planning impacts. They included certain impacts on visual amenity and cultural heritage, which had not been resolved (indeed, could not be resolved, in the sense of eliminated). Therefore the Council could not be satisfied that the proposal had the backing of the local community and could not find that it was acceptable, for the purposes of the Statement.[19]In our judgment, these submissions regarding the proper interpretation of the final paragraph of the Statement cannot be accepted. The judge was right to reject them.[20]The proper interpretation of planning policy, including the Statement, is a matter for the court. Mr Harwood’s submissions are contrary to the natural meaning of the language used in the relevant part of the Statement, especially when it is read in the context of the Statement as a whole and in the wider legislative and policy context set out above.[21]The Statement does not provide a test for what is to count as the relevant local community in relation to any particular development. That will depend on the facts of the case and the planning judgment of the local planning authority. There is no suggestion in this case that the Council has reached an impermissible view of who constitutes the local community in relation to this proposed development.[22]In our view, the natural meaning of the relevant phrase in the last sentence of the Statement is that a local planning authority can find the proposal acceptable if it has sufficiently addressed the planning impacts identified through consultation with the relevant local community to the extent that it can properly conclude, in the exercise of its planning judgment, that the balance of opinion in the local community is likely to be in favour of the proposal. (Although the proper interpretation of the Statement is for the court, we note in passing that this is similar to the interpretation given to the Statement by John Woolcock, the Inspector appointed by the Secretary of State in relation to a planning application for a wind farm at Scout Moor near Rochdale. It is found in his report dated 3 April 2017 at para. 480, in reasoning accepted by the Secretary of State in his decision letter dated 6 July 2017, at paras. 28-29).[23]The more stringent interpretation of the final paragraph of the Statement urged on us by Mr Harwood is not tenable. As noted above, it would effectively involve reading the word “addressed” to mean “resolved” or “eliminated”. The usual position when considering an application for planning permission is that a range of potential benefits has to be weighed against a range of incommensurable potential detriments. It is rarely the case that it can be said that every potential detriment has been eliminated, as opposed to being mitigated and outweighed by countervailing benefits.[24]Therefore, in the planning context the natural meaning of “addressed” is “sufficiently addressed”; that is to say, sufficiently addressed by taking into account mitigating factors and countervailing benefits. If the drafters of the Statement had intended the stronger meaning urged by Mr Harwood, there is little doubt they would have used appropriate stronger language to make that clear.[25]Further, Mr Harwood’s proposed interpretation of the Statement impermissibly removes the word “addressed” from the immediate context of the sentence in which it appears. According to the Statement, a planning authority can find a proposal acceptable if they are satisfied that it has addressed the planning impacts identified by the affected local community and therefore has their backing.[26]A local community will comprise people who are likely to have a range of views in relation to a proposal along a spectrum, perhaps ranging from strong opposition on grounds that can never be assuaged to strong support, with many people somewhere in the middle with views that are capable of being affected by steps taken to mitigate or reduce the impact of a particular proposal on the local area. Some may have made representations to the planning authority in response to the consultation exercise contemplated by the Statement, either in favour of the proposal or against it; but it will often be the case that many members of the local community will not have done so. The planning authority therefore has to make a judgment, taking account of the representations received and assessing the weight and significance of any objections raised, as to where the balance of opinion is likely to lie within the local community as a whole, including its members who have not made representations. Where, for example, issues are raised by some objectors regarding impact on visual amenity – as will almost invariably be the case – the planning authority may take account of the numbers raising that issue (and the numbers not raising it) in the representations received. They may also make an assessment of the seriousness of the visual impact and whether sufficient steps of mitigation or local screening may have been taken so as to minimise the impact to a degree where it can be satisfied that the balance of view within the local community as a whole is to regard the proposed development as acceptable and worthy of their backing.[27]Assessment of the balance of view within the local community as a whole, including those who do not make representations but who can be presumed to be reasonable members of the public, means that the planning authority will inevitably have to consider whether planning impacts mentioned by some members of the local community have been sufficiently addressed by the proposal. The authority will consider measures, including careful siting and mitigation of impact by screening, and make a judgment about whether they can be satisfied that the balance of view within the local community as a whole is positive. The balance of view in the local community as a whole may well be positive, even though some planning impacts have not been wholly eliminated (but only sufficiently dealt with) and even though some members of the local community may never be persuaded to view the proposed development in a favourable light.[28]The nature of the assessment to be made by the local planning authority is a strong indication in favour of the interpretation of the last paragraph of the Statement we have set out above and against the interpretation proposed by Mr Harwood. Put another way, the Statement does not elevate those members of the local community who have views which are the most vehemently opposed to a proposal into the arbiters of the view of the local community as a whole.[29]Our interpretation of the last paragraph of the Statement is also strongly supported by consideration of the wider context of the Statement.[30]In the opening paragraph of the Statement, the Secretary of State says that it is intended to give local people “the final say” on wind farm applications. In the second paragraph he refers to a limited number of consequential changes to planning guidance, but the main provisions of national policy set out in section 10 of the NPPF are left unaltered. Both these points are significant.[31]Although the Statement is intended to be additional policy guidance which may well affect planning decisions, it is plainly not intended to be completely at odds with national policy in relation to renewable energy nor with policies in local plans made in conformity with paras. 94 to 96 of the NPPF to promote the use of renewable energy. The appellant does not suggest that it completely supersedes or in some way trumps all other planning guidance. Yet if the Statement were interpreted as proposed by the appellant, then whenever an objector in the local community referred to a negative planning impact from a proposal which could not be completely eliminated (such as is likely to be the position with impact on visual amenity in almost every case involving proposed wind turbine developments in the countryside) the local planning authority would be forced to weigh the Statement against other very weighty factors in national and local policy in favour of the proposal. The likely result would be that in many cases the Statement, as so interpreted, would be outweighed and would be overridden. That would mean that the apparent assurance given by the Secretary of State in the Statement would frequently turn out to be hollow. The Secretary of State cannot have intended that the Statement should have a meaning which would have this result.[32]Conversely, if the Statement is given the interpretation for which he appellant contends, in many more cases than on our interpretation it will come into conflict with national policy and local policy in favour of renewable energy. In some of that wider range of cases local planning authorities may apply the Statement and treat national policy and local policy as overridden. This would have the effect of undermining national and local policies to a significantly greater degree that the Secretary of State can have intended. It is clear from the second paragraph of the Statement and the absence of any change to section 10 of the NPPF that the Secretary of State intended that the Statement would have a much more modest impact on existing national and local policies than this. The interpretation we favour locates the statement in its proper place in the range of applicable policies.[33]Further, the language of the transitional provision in the last paragraph of the Statement is in marked contrast to that in the second bullet point, setting out the Secretary of State’s substantive new policy governing future planning applications. For such planning applications, the onus is on an applicant for planning permission, or a local planning authority which proposes to grant permission, to “demonstrate” that the planning impacts identified by affected local communities “have been fully addressed …”; rather than, when the transitional provision applies, the local authority merely having to be “satisfied [the proposal] has addressed the planning impacts”, with the consequence that it has the backing of the local community. This difference in drafting again indicates that the word “addressed” in the transitional provision simply means “sufficiently addressed”, not “eliminated” or “resolved”. The stronger language used in the second bullet point indicates that in relation to planning applications made after the Statement was made, the local planning authority has to be satisfied to a higher level of confidence, as compared with the approach in transitional cases, that its assessment that there is a balance of view in the local community as a whole which is favourable towards the proposal is justified. There remains a judgement to be made which recognises that some objections are not capable of being eliminated altogether.

Conclusion

[34]On behalf of the appellant, Mr Harwood accepts that if his proposed interpretation of the Statement is wrong, as we have held it is, then the appeal must fail. He accepts that the Council was lawfully entitled to make the assessment, in the exercise of its planning judgment on the evidence available to it, that the balance of view in the local community as a whole was favourable to this wind turbine proposal. In the result the appeal will be dismissed.

Cited in 1 later judgment