Christopher James Holder v Gedling Borough Council (1st Respondent) Mr John Nigel & Mrs Catherine Mary Charles-Jones (Interested Parties/2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Patten,Sir Stanley Burnton,And |
| Judgment Date | 08 May 2014 |
| Neutral Citation | [2014] EWCA Civ 599 |
| Docket Number | Case No: C1/2013/1835 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 May 2014 |
[2014] EWCA Civ 599
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
MR JUSTICE KENNETH PARKER
CO/793/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Lord Justice Patten
and
Sir Stanley Burnton
Case No: C1/2013/1835
Richard Harwood QC (instructed by Richard Buxton Environmental & Public Law) for the Appellant
Richard Kimblin and Hashi Mohamed (instructed by Solicitor to Gedling Borough Council) for the First Respondent
Victoria Hutton (instructed by Wilkin Chapman LLP) for the Second Respondents.
Hearing dates : 9 April 2014
This appeal concerns planning permission for the erection within the Nottingham Green Belt of a wind turbine with a maximum ground to tip height of 66 metres. Gedling Borough Council (the Council) granted permission on 3 November 2011. The site is on farmland at Woodborough Park, Forwood Lane, Woodborough. Planning Policy Guidance Note (PPG2) provides:
"3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such developments should not be approved, except in very special circumstances…"
In the present case, permission was granted in the face of substantial objection. The Planning Committee approved the application by ten votes to seven.
Mr Holder is a member of Woodborough and Calverton Against Turbines (WACAT). He made an application for judicial review of the planning permission but the application was dismissed by Kenneth Parker J (the Judge) on 12 June 2013: [2013] EWHC 1611 (Admin). Permission to appeal to this court was granted by Sullivan LJ at an oral renewal hearing on 4 December 2013: [2013] EWCA Civ 1719. He pertinently observed that the delays in this case had been lamentable; they had been procedural and systemic rather than a result of personal culpability on the part of the litigants. It is to be hoped that the new fast-track procedure for planning cases in the Administrative Court will make such delays a thing of the past. It is an additional feature of this case that, notwithstanding the spectre of litigation uncertainty, the land owners, Mr and Mrs Charles-Jones, have acquired and erected the contentious wind turbine since the judgment in the Administrative Court, notwithstanding the proceedings in this Court.
Factual background
I gratefully take the following account from the judgment below:
"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...
To continue reading
Request your trial
-
R (on the application of Joicey) v Northumberland County Council
...that the decision is invalid because of its absence. Recently in R (on the application of Holder) v Gedding District Council [2014] EWCA Civ 599 Maurice Kay LJ considered the Glidewell test and the test derived from Simplex GE Holdings Ltd v Secretary of State for Environment (1988) 3 PLR 2......
-
Howell v Secretary of State for Communities and Local Government (1st Defendant) Waveney Borough Council (2nd Defendant) Stamford Renewables Ltd (3rd Defendant)
...a basis for making it a mandatory consideration to which regard must be had. 64 Mr Harwood cited R (Holder) v Gedling Borough Council [2014] EWCA Civ 599, but that was a different case where the site for the proposed turbine was in the Green Belt, and thus the decision-maker had to consider......
-
R (on the application of Graham Williams) v Powys County Council Colin Bagley (Interested Party)
...– prejudice "considerably more acute", said Mr Corbet Burcher, than in R. (on the application of Holder) v Gedling Borough Council [2014] EWCA Civ 599. 72 I do not accept those submissions. It seems to me that in this case the interests of a lawfully taken decision must prevail, as normally......
-
R Thornton Hall Hotel Ltd v Wirral Metropolitan Borough Council
...( Holder v. Gedling Borough Council [2013] EWHC 1611 (Admin), per Parker J at [54] (reversed on other grounds but not on this point, [2014] EWCA Civ 599). 32 On the other hand, a planning permission issued in error and without proper authority is invalid and may be declared so or quashed: ......