Holder, R (on the application of) v Gedling Borough Council, Court of Appeal - Administrative Court, June 12, 2013, [2013] EWHC 1611 (Admin)

Resolution Date:June 12, 2013
Issuing Organization:Administrative Court
Actores:Holder, R (on the application of) v Gedling Borough Council
 
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Neutral Citation Number: [2013] EWHC 1611 (Admin)

Case No: CO/793/2012

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Birmingham Civil Justice Centre

33 Bull Street

Birmingham B4 6DS

Date: 12/06/2013

Before :

MR JUSTICE KENNETH PARKER

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Between :

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Richard Harwood QC (instructed by Richard Buxton) for the Claimant

Richard Kimblin and Hashi Mohamed (instructed by Gedling Borough Council) for the Defendant

Hearing date: 14 May 2013

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Draft 12 June 2013 10:34 Page 22

Mr Justice Kenneth Parker :

Introduction

  1. Christopher Holder, the Claimant, challenges the decision of Gedling Borough Council, the Defendant, to grant planning permission to Mr and Mrs Charles-Jones, the Interested Party, for a wind turbine. The Claimant objected to the application and is a member of Woodborough and Calverton Against Turbines (``WACAT'').

  2. Planning permission 2011/0523 was granted by the Council on 3 November 2011 for the erection of a wind turbine (with a hub height of 50 metres and 66 metres to tip) at Woodborough Park, Foxwood Lane, Woodborough.

  3. Permission to apply for judicial review was granted by the Court of Appeal (Lewison LJ) following refusals in the High Court. The application to the Court of Appeal was on three grounds: material considerations; errors in the decision notice and resolution; and Environmental Impact Assessment.

    Factual Background

  4. Woodborough Park is a farm near the village of Woodborough in Nottinghamshire. The land is open countryside and is within the Nottingham Green Belt.

  5. Planning permission for the erection of two 11kW wind turbines was granted on 19 August 2010 (reference 2010/0244). These turbines were to have 18 metre high masts with 13 metre diameter rotors. On 6 June 2011 the Council granted planning permission for the erection of two ground mounted photovoltaic panel arrays (totalling 9.9kW) as appropriate development in the Green Belt.

  6. On 22 July 2010 Segen applied for an Environmental Impact Assessment screening opinion in respect of the current proposal. The request enclosed `Pre-application information' which identified the type of turbine and the proposed location. Under `possible environmental impacts' brief comments were made on bats, birds, shadow flicker, noise and the historic environment. It was said that substantial justification would be provided for the proposal in the Green Belt and early consultation would take place ``to inform the Environmental Assessment which will accompany the forthcoming planning application''.

  7. The Council adopted a screening opinion on 30 September 2010 in these terms:

    ``The proposed development involves the installation of one turbine with a hub height of 50 metres and a maximum ground to tip height of 66 metres, in this case therefore the proposal is considered to be ``Schedule 2 Development'' of the 1999 Regulations. In these circumstances paragraph 33 of circular 02/99 (Environmental Impact Assessment) requires Local Planning Authorities to consider the impacts of the effects of the development in terms of the ``selection criteria'' set out in Schedule 3 of the Regulations. The selection criteria require consideration of the characteristics of the development, the location of the development and the characteristics of the potential impact.

    Paragraph A15 of circular 02/99 states that an EIA is more likely to be required for commercial developments of five or more turbines or more than 5mw of new generating capacity. I therefore consider that as the proposed development is for one turbine with a generating capacity of 330kw an EIA would not be required in this instance.

    Whilst, therefore, the Borough Council consider that an EIA would not be required to be submitted, should a formal planning application be submitted, consideration would need to be given to the appropriateness of the development in this location and whether or not there are special circumstances to justify the development. In addition to this consideration would need to be given to the potential impact of the development on the character of the area, the impact on the visual amenity of the area, the potential noise impact of the proposal on the area, impact on the area as a result of possible flicker from the turbine and the impact on wildlife.

    I can advise you, in respect to the above, that the site is located within the Green Belt and the landscape in this area is classified as Dumbles Rolling Farmland a sub type of Nottinghamshire farmlands and within the Nottingham Landscape Character Assessment as Woodborough Sloping Farmland. There are a number of residential properties surrounding the site, Woodborough Park Farm, Wood Farm and the residential properties on Georges Lane. I would also point out that a bridle path runs along the ridge line in this area linking Georges Lane with Foxwood Lane. The deciduous woodland, Fox Wood, to the east of the site is a site of important nature conservation and a Scheduled Ancient Monument.''

  8. The planning application was submitted on 11 May 2011. The proposal was intended to replace the planning permission for the two smaller turbines. It was accompanied by various documents including an `Environmental Appraisal' which was not described as an Environmental Statement under the EIA Regulations.

  9. Local residents formed ``Woodborough and Calverton Against Turbines'' to object to the application. They instructed a planning consultant and she sent a detailed letter of objection which referred to various matters including the ability to achieve economic benefits by the twin turbine and solar panel planning permissions. The letter proposed draft reasons for refusal on Green Belt, landscape and visual impact, heritage and amenity of recreational user grounds. It also identified other negative impacts including to noctule bats. WACAT also submitted reports from landscape consultants and from noise consultants which were critical of the proposals.

  10. The planning application was reported to the Council's Planning Committee on 2 November 2011. Under ``relevant planning history'' the report referred to the planning permission for two turbines and the EIA screening decision.

  11. The report summarised various consultation responses including:

    ``Urban Design & Conservation Consultant - Objects to the proposed development due to the lack of planning policy on the siting of wind turbines and considers the proposal to be an intrusion into the rural setting around the Conservation Areas. Concerned that should this turbine proposal be approved, it would be difficult to refuse others in similar locations and result in a cumulative impact.

    Nottinghamshire County Council (Communities) - No planning objection subject to the applicant addressing the impact to bats and cumulative impact, as well as the Borough Council being satisfied that very special circumstances have been demonstrated.

    Rights of Way Officer - Objects to the proposal and refers to the British Horse Society advice of a 200m buffer zone between wind turbines and bridle paths.''

  12. 1125 objections had been received from the public and these were briefly summarised, some under the heading of ``Material Planning Issues''. The report then listed various representations under ``Non-material Planning Issues'' including:

    ``Non-material Planning Issues

    · The granting of permission for this application would set a precedent for further turbine development nearby.

    · The proposed turbine would not generate a significant amount of energy and would be inefficient.

    · The proposal would only benefit the applicant financially.

    · The turbine should be sited elsewhere outside of the Green Belt on already degraded landscapes.

    ...

    · There are other alternative methods of producing renewable energy instead of the proposed turbine.''

  13. The planning officers accepted that the proposal was inappropriate development in the Green Belt. It would not have an ``unduly material impact on the openness of character of the site and wider locality'' but would have a ``major visual impact'' on bridleway users. The County Council was reported as recommending that there be an ecological management plan to ``partially mitigate against the impact of the introduction of an industrial feature into a rural landscape''. On noise, the report said that the application site was in a rural ``low noise environment'' and that ``with the imposition of a suitably worded condition, including absolute noise limits, the site and neighbouring properties would be safeguarded from any material noise impact''.

  14. In respect of visual and noise impacts on the footpath/bridleway the report said:

    ``Impact on Footpath/Bridle path.

    As discussed previously, I consider the proposal would result in a visual impact on the recreational users of the Spindle Lane footpath due to the proximity of the proposed turbine to the footpath.

    ...

    Whilst accepting that the proposed turbine would be highly visible to the recreational users of the footpath, I consider that with the attachment of conditions relating to an ecology and landscape plan which would facilitate the introduction of further hedgerow planting to partly mitigate against the visual impact as well as conditions stipulating maximum noise limits, I am of the opinion that the proposal would not result in such a great impact as to impede or deter recreational users of the footpath.''

  15. In respect of very special circumstances in the Green Belt the report referred to general guidance in Planning Policy Statement 22 on the materiality of the wider environmental and economic benefits of renewable energy proposals and the advice in paragraph 13 of the PPS that ``very special circumstances may include the wider environmental benefits associated with increased production of energy from...

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