R Christopher James Holder (Claimant/Appellant) v Gedling Borough Council (Defendant/First Respondent) Mr and Mrs John Charles-Jones (Interested Party/Second Respondent)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Sullivan
Judgment Date04 December 2013
Neutral Citation[2013] EWCA Civ 1719
Date04 December 2013
Docket NumberCase No: A2/2013/1835

[2013] EWCA Civ 1719

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION

(MR JUSTICE PARKER)

Royal Courts of Justice

Strand

London, WC2A 2LL

Before:

Lord Justice Sullivan

Case No: A2/2013/1835

The Queen on the Application of Christopher James Holder
Claimant/Appellant
and
Gedling Borough Council
Defendant/First Respondent

and

Mr and Mrs John Charles-Jones
Interested Party/Second Respondent

Mr Richard Harwood QC (instructed by Richard Buxton) appeared on behalf of the Claimant

Lord Justice Sullivan
1

This is a renewed application for permission to appeal against the order dated 12 June 2013 of Parker J dismissing the applicant's claim for judicial review of a planning permission granted by the respondent on 3 November 2011 for the erection of a wind turbine with a hub height of 50 metres and 66 metres height to tip at Woodborough Park, Foxwood Lane, Woodborough.

2

This case provides a textbook illustration of the need for the planning fast-track system that has now been instituted in the Administrative Court.

3

The planning permission granted on 3 November 2011 was defective because it did not fully incorporate certain conditions which had been recommended by the planning officer and which the planning committee had wished to see imposed. So a replacement planning permission, bearing the same date and attempting to rectify the original error, was issued on or about 21 December 2011.

4

Judicial review proceedings were commenced promptly. A pre-action protocol letter had been sent on behalf of WACAT (Woodborough and Calverton Against Turbines), an organisation of which the claimant is a member. That letter was sent on 15 December.

5

However, the application for permission to apply for judicial review was not determined on the papers until 25 May 2012 when it was refused. The renewed application was not considered until 4 September 2012, when it was again refused. On 17 December 2012, Lewison LJ granted permission to apply for judicial review and remitted the matter to the Administrative Court, where it was eventually heard by Parker J on 14 May 2013. He gave judgment on 12 June 2013. The judgment is reported at [2013] EWHC 1611 (Admin).

6

The judge quashed the second replacement planning permission which the respondent had had no power to issue, but he rejected the challenges to the first planning permission. The applicant's application for permission to appeal against the judge's rejection of their challenges to the first planning permission was refused on the papers by Beatson LJ on 20 August 2013. I am considering the applicant's renewed application for permission to appeal on 4 December, just over two years after the planning permission under challenge was granted.

7

The interested party's written submissions and a witness statement say that the turbine is actually under construction and is expected to be in operation by January 2014. It is possible, therefore, that any relief that the court might be minded to grant will be rendered nugatory as a result of the delay in obtaining permission to apply for judicial review. It is surprising that it took so long to obtain permission to apply for judicial review, because on the face of it this was a case where it was at least arguable that whenever something could have gone wrong at the various stages of the procedure, it had gone wrong.

8

Thus, on the face of it, the respondent's screening opinion in which it decided that there was no need for an environmental impact assessment was simply based on the threshold for wind turbines set out in circular 02/99. The site is in the Green Belt and the planning officer's report stated that various matters, including precedent, were not material considerations. The first planning permission failed to incorporate conditions which the committee thought were necessary, and, having determined that application, the respondent then proceeded to grant a second planning permission when it had no power to do so.

9

Against that unhappy procedural background, I consider this renewed application for permission to appeal. Taking the three grounds in reverse order, the respondent explained how its screening decision was reached in a written statement of Ms Jackson, the officer who had actually made the decision. In paragraph 75 of his judgment, the judge said that he was troubled by the sequence of events that he had set out, but he accepted what was said in Ms Jackson's witness statement.

10

I do not see any real prospect of the applicant being able to persuade the Court of Appeal that the judge was not entitled to adopt that course. I quite understand that on one reading of the witness statement, Ms Jackson was saying that effectively the process of consultation on the planning application could substitute for the EIA process because it would flush out the necessary environmental information. However, the judge concluded (and in my judgment he was entitled to do so) that Ms Jackson had properly concluded that the proposal was not likely to have a significant environmental impact and she was simply saying that in addition it was the fact that environmental material would be elicited via the consultation process on the planning application. As...

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