Lensbury Ltd and Another v Richmond-Upon-Thames London Borough Council Teddington & Ham Hydro Co-Operative Ltd and Another (Interested Parties)

JurisdictionEngland & Wales
JudgeMr Justice Supperstone
Judgment Date29 April 2016
Neutral Citation[2016] EWHC 980 (Admin)
Docket NumberCase No: (2) CO/5222/2015 & (1) CO/5231/2015
CourtQueen's Bench Division (Administrative Court)
Date29 April 2016

[2016] EWHC 980 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Supperstone

Case No: (2) CO/5222/2015 & (1) CO/5231/2015

The Queen on the Application of

Between:
(1) Lensbury Ltd
(2) Pinenorth Properties Ltd
Claimants
and
Richmond-Upon-Thames London Borough Council
Defendant

and

(1) Teddington & Ham Hydro Co-Operative Ltd
(2) The Environment Agency
Interested Parties

Christopher Lockhart-Mummery QC (instructed by Howes Percival LLP) for the First Claimant Richard Turney (instructed by Dentons UKMEA LLP) for the Second Claimant

Daniel Kolinsky QC (instructed by South London Legal Partnership) for the Defendant

The Interested Parties were not represented

Hearing dates: 13 and 14 April 2016

Mr Justice Supperstone

Introduction

1

There are two challenges to the grant of planning permission by the Defendant Council ("the Council") to Teddington and Ham Hydro Co-operative Ltd ("the Applicant") on 17 September 2015 for a 3-turbine electricity generation facility at Teddington Weir, Teddington Lock, Teddington. The planning permission is for the following development:

"Demolition of section of weir; installation of 3 reverse engineered archimedean screw turbines to generate hydroelectricity. New Fish and Eel passes, sluice gate, cable routes to substation. Adapt maintenance access to that section of weir; plant room to be constructed on walkway."

2

Lensbury Ltd ("Lensbury") is the leasehold owner of land and buildings on the north, eastern and south-western sides of Broom Road, Teddington, London, upon which it operates The Lensbury which provides leisure club, conference, hotel and events facilities. The garden and parkland of The Lensbury run from the main building complex towards the River Thames.

3

The Lensbury and the site of the proposed development fall within the Teddington Lock Conservation Area, within designated Metropolitan Open Land, within the Thames Policy Area, and within the setting of a number of statutory listed buildings.

4

Pinenorth Properties Ltd ("Pinenorth") has an interest in the land at Broom Road, Teddington Studios ("Teddington Studios"), which is located to the south-west of the existing weir and the application site. Teddington Studios was granted planning permission on 9 December 2014 for the construction of 213 residential flats, 6 three-storey houses and the re-development of Weir Cottage for residential purposes. Pinenorth intends to re-develop Teddington Studios in accordance with the planning permission.

5

Permission was granted in both claims by Lang J, who ordered that they be heard together.

Factual Background

6

On 29 November 2011 Ham Hydro Community Interest Company ("Ham Hydro") submitted an application to the Council for planning permission for a similar development for a 3-turbine scheme as permitted by the planning permission under challenge in these proceedings. Prior to that application, Ham Hydro made a request dated 16 February 2011 for a Screening Opinion under regulation 5 of the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, which were then in force. That request led to a screening opinion dated 23 February 2011. The opinion recorded that the proposal concerned 4 turbines designed to generate 0.532MW. As it involved production which exceeded the threshold of 0.5MW it was a Schedule 2 development. However the Council considered that the proposed development would not have significant effects on the environment and that an Environmental Statement was not therefore required.

7

The previous planning application was withdrawn on 9 September 2014.

8

The current application was submitted on 2 September 2014. It came before the Council's Planning Committee ("the Committee") on 15 April 2015. The report to Committee ("the First Report") included the following 'Summary of Application':

"The proposal has been considered in the light of the Development Plan, comments from statutory consultees and third parties. It has been concluded that, subject to conditions to protect environmental (including biodiversity) and local concerns, including wider heritage assets and noise and disturbance, there is not sufficient or significant harm to interests of acknowledged importance caused by the development that justifies withholding planning permission.

The proposal has not been found to cause an increase in flood risk irrespective of whether or not proposed strategic flood risk schemes go ahead.

RECOMMENDATION: PERMISSION."

9

The minutes of the Committee meeting record:

"… Members considered a range of matters during their deliberations including the location and ecology of the application site. The committee was not minded to approve the application based on the officer's report and recommendation. The appearance of the proposed installation was considered and this was deemed to be an insufficient reason for refusing the application. Concerns about future flooding were also considered and dismissed as a reason for refusal by the committee, particularly as the Environment Agency had stated that the proposed hydroelectric installation would not increase the flood risk in the area.

The committee considered whether there was enough information being provided about the proposed noise mitigation scheme. It was noted that this application affected a sensitive area where there was already a relatively noisy industrial installation (weir). This, in the committee's opinion, made judging whether the proposed turbines would add to the noise in the area, when measured at various distances and positions, more difficult. It was ultimately decided that there was not enough information to approve or reject the application on noise grounds at this stage.

RESOLVED that further consideration of this item be deferred to a future meeting of the committee for the following reason:

'The committee did not feel that enough information was presented in the proposed noise mitigation scheme, as alluded to in proposed condition NSO2'."

10

The application returned to the Committee on 16 September 2015. A report prepared for this Committee meeting ("the Second Report") included a 'Summary of Application' in the following terms:

"The original report is set out in appendix 'A'.

The application was considered by the planning committee at its meeting on the 15 th April where it was RESOLVED that consideration of this item be deferred to a future meeting of the committee for the following reason:

'The committee did not feel that enough information was presented in the proposed noise mitigation scheme, as alluded to in the proposed condition NSO2.'

Further information has been submitted for consideration. This is considered to reinforce the original recommendation.

There has been no other material change in circumstances or substantive new issue raised since the meeting of 15 th April.

RECOMMENDATION: PERMISSION."

11

The minutes of the Committee meeting record:

"…The committee discussed the acceptability of the application in terms of noise, as other matters had been decided upon during the meeting held on 15 April 2015, with there being no new planning issues of any significance having subsequently arisen. It was generally considered that noise could not be used as a reason for refusal as it could not be sustained on appeal of the committee's decision. The committee felt that the proposed conditions safeguarded residents and other nearby establishments, although a concern was raised over how feasible it would be for the applicant to comply with them. It was also felt by many of the members who attended the site visits to Teddington and Romney that, in practice, the level of additional noise caused by such turbines was negligible and not audible a short distance away from the installation.

RESOLVED that the application be approved, subject to the conditions and informatives in the officer's report."

Grounds of Challenge

12

There are five grounds of challenge to the Council's decision.

13

Mr Christopher Lockhart-Mummery QC, on behalf of Lensbury, advances three grounds of challenge:

i) The Council failed to comply with the duty under s.38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") ( Ground 1).

ii) The Council failed properly to consider the impacts of the proposed development on heritage assets ( Ground 2).

iii) The Council failed to screen the planning application under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 ("the 2011 Regulations") ( Ground 3).

14

Mr Richard Turney, on behalf of Pinenorth, in his written submissions advances three grounds of challenge:

i) The grant of planning permission was unlawful in that it was granted in breach of the requirements of the 2011 Regulations. The Council failed to screen the application to decide whether or not the proposal was for EIA development.

This is the same ground as Mr Lockhart-Mummery's third ground.

ii) The determination of the application was procedurally unfair and the Council failed to have regard to material considerations because it limited its consideration to matters relating to noise ( Ground 4).

iii) Condition NSO1 imposed on the grant of planning permission in relation to noise is unlawful and members were misled as to its effect ( Ground 5).

In addition Mr Turney associated himself with the submissions made by Mr Lockhart-Mummery on Grounds 1 and 2.

15

I shall deal with each ground of challenge in turn.

Ground 1: failure to comply with s.38(6) of the Planning and Compulsory Purchase Act 2004

The Legal Framework

The 2004 Act, s.38(6)

16

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1 cases
  • R Lensbury Ltd v Richmond-Upon-Thames London Borough Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 11 August 2016
    ...4 th August 2016 Approved Judgment Lord Justice Sales 1 This is an appeal from the order of Supperstone J (reflecting his judgment [2016] EWHC 980 (Admin)) in proceedings brought by the Appellant seeking judicial review of the grant of planning permission by the Respondent ("the Council") ......

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