R (on the application of Joicey) v Northumberland County Council

JurisdictionEngland & Wales
JudgeMr Justice Cranston
Judgment Date07 November 2014
Neutral Citation[2014] EWHC 3657 (Admin)
Docket NumberCase No: CO/347/2014
CourtQueen's Bench Division (Administrative Court)
Date07 November 2014
Between:
The Queen (on the application of Joicey
Claimant
and
Northumberland County Council
Defendant

and

R & J Barber Farms Ltd
Interested Party

[2014] EWHC 3657 (Admin)

Before:

Mr Justice Cranston

Case No: CO/347/2014

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

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

Sasha White QC (instructed by Northumberland County Council) for the Defendant

John Barber appeared in person for the Interested Party

Hearing dates: 21–22 October 2014

Mr Justice Cranston

I INTRODUCTION

1

This judicial review raises an issue about the consequences when information which by law is to be accessible to members of the public is not available in a timely fashion to enable them to participate effectively in democratic decision-making. I decide that a claimant in this position is entitled to have the decision quashed unless the decision-maker can demonstrate that it would inevitably have come to the same conclusion even if the information had been available. The issue arises in the context of an application to quash the grant of planning permission for the erection of a wind turbine at Brackenside Farm, Berwick-upon-Tweed, Northumberland. Another issue which arises in the course of the case is the interpretation of the concept of financial involvement, where in planning guidance financial involvement in a wind turbine can lead to a greater exposure to the noise it will generate if permission is granted to erect it.

II BACKGROUND

The parties

2

R & J Barber Farms Ltd ("the applicant") is the company of John Barber and his family, which owns and farms Brackenside Farm in Northumberland ("Brackenside"). They applied for planning permission to erect a wind turbine on the farm. Brackenside is approximately 4km west of the village of Lowick and 11.5km south of Berwick-upon-Tweed. Of the properties on the farm, one is occupied by Mr John Barber and his wife, another by his son and his wife. There are three cottages occupied on shorthold tenancies. A sixth property is occupied by a retired farm worker and the seventh is rented out as a holiday let. The applicant says that when the wind turbine is operational, all the properties will be connected to the grid and receive electricity at the preferential export rate.

3

The claimant, Andrew Joicey, is a landowner and farmer who lives at New Etal, Cornhill-on-Tweed in Northumberland. He is critical of the way that renewable energy is subsidised which leads (in his view) to a less than optimal selection of sites for wind turbines. He campaigns on the issue. His friend, Dr John Ferguson, a retired chartered engineer and clergyman, lives in the neighbourhood.

4

The defendant, Northumberland County Council ("the Council"), is the planning authority for the area and granted permission for the Brackenside turbine. Cllr Paul Kelly chairs the Council's Planning, Environment and Rights of Way Committee ("the planning committee"). Karen Ledger is the head of Development Services in the Council and Joe Nugent is a senior planning officer. At the relevant time Geoffrey Newcombe was the Council's environmental protection officer in the Public Protection department. Mr Newcombe explains in his witness statement that as an internal consultee of the Council to the planning service, his role would be to check if noise pollution consultants were competent and correct assessment references were cited, such as the Institute of Acoustics Good Practice Guide. In other words, it was a limited role.

The history of the application

5

In early 2006 there was an application to erect 9 wind turbines on a wind farm at Barmoor, which is just south of Brackenside. Three of the nine proposed turbines were to be on the applicant's land but the developer agreed to withdraw these from the proposal. Following a public inquiry in 2009, the Secretary of State approved the six turbines at Barmoor ("the Barmoor wind farm") while rejecting two other proposed wind farms elsewhere in Northumberland. The planning permission for the Barmoor wind farm sets daytime and night-time noise limits for different properties. Those noise limits vary according to the existing background noise levels at each location, measured and recorded at a range of wind speeds, and sometimes between the same grouping of buildings according to whether the occupiers are financially involved in the wind farm. The Barmoor wind farm is now in the process of being built.

6

In 2011 the applicant applied to the Council for planning permission for the erection on Brackenside "of a single wind turbine of 37 metres to hub with a total height tip of 47.1 metres, and an output of approximately 334,000 kWh per annum". The rationale of the planning application was to reduce the farm's carbon footprint and exposure to energy prices. The planning application conceded that there was some impact on the surrounding landscape and visual amenity of the area but asserted that this was limited.

7

On 2 February 2012 the Council's north area planning committee granted planning permission. The claimant challenged the permission on six grounds in judicial review proceedings. The Council and the applicant submitted to judgment on the basis that the noise condition imposed was defective; the distance of the proposed turbine from the nearest turbine of the approved Barmoor wind farm to the south had been misstated; Environmental Impact Assessment screening had not been carried out; and there was a failure to advertise and to notify English Heritage, since the application affected the setting of listed buildings (notably to the east the grade II* listed Barmoor Castle).

8

On 1 November 2012 the Council's north area planning committee resolved again to approve the application and planning permission was issued a fortnight later. The claimant challenged by way of judicial review, this time on five grounds. The council and the applicant again agreed to a court approved consent order on the basis that (1) the noise condition, which was identical to that in the first permission, was defective (it only assessed noise from the proposed turbine in isolation, not in cumulation with the approved Barmoor wind farm, and the condition relating to noise was unenforceable, since it relied on control of the Barmoor development); and (2) English Heritage should have been consulted.

The application in 2013 and the noise assessment report

9

The applicant pursued the application for a wind turbine at Brackenside. To deal with the English Heritage point its agent prepared a Heritage Statement. On 23 April 2013 English Heritage stated that in its opinion the proposed turbine would not cause harm to the setting of heritage assets in the area, particularly Barmoor Castle.

10

Coincidentally that day Dr Ferguson sent the Council a list of objections to the Brackenside turbine. Amongst other points he refuted as unrealistic the output figure claimed of 334,000 kWh per annum. That was on the basis that the turbine was capable of producing 38 percent of its maximum output, whereas in 2010 the national average for commercial turbines was only 21 percent. Dr Ferguson said that this was central to the benefit/harm balance.

11

To address the concerns about noise, the applicant engaged WSP Environmental Ltd of London. They prepared an "Environmental Noise Assessment" report dated 20 August 2013 ("the WSP noise assessment"). The report stated that it took into account the noise which would be generated when Barmoor wind farm to the south was in operation. Noise limits had been set for the turbines in that wind farm in relation to neighbouring properties, with higher limits for those which had a financial involvement (in accordance with ETSU-R-97). Since Barmoor wind farm was yet to be constructed, WSP prepared a model to predict noise for the Brackenside site and surrounding area. As a worst case scenario, WSP assumed that Vestas turbines would be used, which were noisier than Siemens turbines. Calculations were made at different wind speeds and different times of the day. Predictions were then made to identify noise levels at the properties closest to the Brackenside turbine, as a result of the Barmoor turbines operating within their set limits. Further calculations were undertaken with the Brackenside turbine operating both alone and with the Barmoor turbines for both daytime and nighttime. In the assessment Brackenside Farm was assumed to have a financial involvement in the turbine as were the Barmoor properties. The report concluded that there would be no significant cumulative noise impact. Thus noise need not be considered a determining factor in granting planning permission.

12

The Council received the WSP noise assessment from the applicant's agents on 21 August 2013. There are emails suggesting that a corrected version of the assessment was sent the following day but the version which was ultimately made available to the Council planning committee and the public is dated 20 August 2013. Mr Nugent's evidence is that he printed a copy of the report and placed it on the planning file. No copy was uploaded to the Council's publicly accessible website until much later.

The officer's report

13

The officer's report recommending approval of the Brackenside application, subject to conditions, was made available on 23 October 2013. On Friday 25 October 2013 the Council notified objectors and others by second class letter that there would be a meeting of the planning committee to consider it on 5 November 2013. Most likely the letter would not have...

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