03 December 2015

Wind Turbines - Court of Appeal overturns High Court decision

Andrew Holt Senior Partner

A ruling by the Court of Appeal, released on 3 December 2015, overturns a High Court decision about planning permission granted for a wind turbine. The ruling follows a lengthy legal challenge, from anti-turbine objectors, who initially brought a challenge to the High Court on the grounds that the planning inspector had failed to act properly.

A group of anti-turbine objectors brought a legal challenge against a decision made by a planning inspector to allow the erection of a wind turbine. The challenge was brought under powers granted by s288(1) Town and Country Planning Act 1990.

High Court decision

There were 4 grounds to the initial challenge which was heard before the High Court. Two of these grounds the Judge held failed at this stage and so will not be discussed. The other two grounds of challenge were:

1. That the Inspector had failed to properly apply s66(1) Planning (Listed Buildings and Conservation Areas) Act 1990

2. The reasons provided by the Inspector in his decision letter were inadequate.

The relevant section (s66(1)) provides that special regard should be had to preserving listed buildings and any features of interest they contain. In this case, the inspector believed there to be less than substantial harm to any listed buildings in the area.

The key aspect of the decision rested on the fact that the reasoning provided by the Inspector did not make reference to s66(1) or what weight was given to the desire to protect listed buildings. In this regard the High Court judge felt bound by the decision of the Court of Appeal in East Northamptonshire District Council and others v Secretary of State for Communities and Local Government and another [2014] EWCA Civ 137 (“the East Northamptonshire case”).

In the East Northamptonshire case, at paragraph 29, it was stated that it was “a fatal flaw in the decision” of the Inspector that he did not make reference to “the need, if he found that there would be harm to the setting of the many listed buildings, to give considerable weight to the desirability of preserving the setting of those buildings”.

The High Court Judge treated this as authority that the Inspector must have, in his decision, demonstrated his reasoning and showed what weight had been given to s66(1). The Judge considered the case of Save Britain’s Heritage v Number 1 Poultry Limited [1991] 1 WLR 153, HL. The approach of the House of Lords, in this case, suggested a different approach to this situation but the Judge in the High Court did not believe he could detract from the decision in the East Northamptonshire case.

Whilst not referring to s66(1) directly, the Inspector had referred to the relevant parts of the National Planning Policy Framework (NPPF) in his decision. The judge considered that this may show he had given adequate weight to the protection of listed buildings required under s66(1) but it was not enough in of itself to do so.

In light of the above the decision in the High Court was to quash the original decision of the Inspector. The Judge admitted that he did so reluctantly as he could see why the original decision had been made. On that basis, he provided leave to appeal to the Court of Appeal.

Court of Appeal decision

The Court of Appeal, having reviewed the relevant law and planning policies, agreed that the Judge in the High Court had been correct to decide that considerable weight should have been given to the protection of listed buildings in the Inspectors decision.

This led the Court of Appeal to examine the relevant decisions in the East Northamptonshire case and Save Britain’s Heritage. They considered the latter to be good authority on the standard of reasons to be given when planning permission may affect listed buildings. In Save Britain’s Heritage, the House of Lords held that “The alleged deficiency [of the reasoning] will only afford a ground for quashing the decision if the court is satisfied that the interests of the applicant have been substantially prejudiced by it. This reinforces the view ... that the adequacy of reasons is not to be judged by reference to some abstract standard”. This approach was subsequently followed by the House of Lords in South Bucks District Council v Porter (No. 2) [2004] UKHL 33.

In light of these decisions in the House of Lords, and when the Judgement is read as a whole, the Court of Appeal did not believe the Judges in the East Northamptonshire case had meant to set a precedent as followed by the High Court in this case. There were significant differences in the reports, as the one in East Northamptonshire positively inferred that not enough weight had been given to listed buildings, when in the present case there could be no such inference made.

The approach in Save Britain’s Heritage was therefore applied by the Court of Appeal in this case. They held that having applied the relevant parts of the NPPF, it cannot be said that there is substantial doubt as to whether the Inspector had erred in his application of the law. In fact the opposite inference was drawn by the Court, holding that he had complied with s66(1).

The appeal was therefore granted and the decision of the High Court overturned. The original decision of the Inspector therefore now stands.

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