R RWE Npower Renewables Ltd v Milton Keynes Borough Council Ecotricity (Next Generation) Ltd (Interested party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeJohn Howell QC
Judgment Date15 April 2013
Neutral Citation[2013] EWHC 751 (Admin)
Date15 April 2013
Docket NumberCase No: CQ/10866/2012

[2013] EWHC 751 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

John Howell PC

Sitting as a Deputy High Court Judge

Case No: CQ/10866/2012

Between:
The Queen on the application of RWE Npower Renewables Limited
Claimant
and
Milton Keynes Borough Council
Defendant

and

Ecotricity (Next Generation) Limited
Interested party

Mr Gordon Nardell QC and Mr James Burton (instructed by Eversheds LLP) for the Claimant

Mr Richard Harwood QC (instructed by Richard Buxton) for the Defendant

Hearing dates: 28 February 2013

John Howell QC

Introduction

1

Wind turbines generate passionate argument as well as energy. For some they are an indispensable means of obtaining energy from a renewable source to meet this country's requirements in a sustainable way. For others they provide only an intermittent supply of energy at too great a cost. Some object to what they perceive to be, or fear will be, the incongruous intrusion of wind farms in the landscape; others anticipate that such development will be, or find that it is, attractive or at least an acceptable additional element in the countryside. The local impact which large wind turbines have on residential amenity may also be perceived differently: some find them, or fear that they will be, visually overbearing or intrusively noisy; others may not. Such differences of opinion inevitably generate disputes about whether or not planning permission should be granted for their construction.

2

This claim for judicial review seeks to impugn the "Wind Turbines Supplementary Planning Document and Emerging Policy" ("the Wind SPD") that was adopted by Milton Keynes Borough Council on July 24 th 2012. The SPD contains an "Emerging Policy" that planning permission will be granted for proposals to develop wind turbine renewable energy sources unless, inter alia, any turbine generator over 25m in height is not separated from residential premises by at least a certain minimum distance which varies according to its height. Planning permission will still be granted even if the relevant minimum distance is not observed if the owners and occupiers of all the residential premises within it agree to the wind turbine's construction. The "Emerging Policy" does not provide, however, that planning permission will be refused if such conditions are not met. The "Emerging Policy" also prescribes certain minimum distances to be observed between a turbine generator and bridleways, public footpaths and high pressure fuel lines. If the "Emerging Policy" in the Wind SPD is valid, it would rank as a material consideration in determining any application for planning permission for a wind turbine in the Borough.

3

This claim for judicial review is brought by RWE Npower Renewables Limited. That company develops and operates wind energy schemes. It has two proposals for wind farms in the Borough. It is concerned about the application of the separation distances in the "Emerging Policy" to its current proposals. But it is also concerned about the wider significance of the emergence of policies, such as this, which identify minimum separation distances from other places for wind turbines regardless of their actual impact in any particular case on them. It considers that, if the "Emerging Policy" is valid, other local planning authorities in England may adopt similar policies that will, in practice, put any proposal at risk of rejection on arbitrary grounds and nullify national guidance which encourages the development of renewable energy. In the Claimant's opinion there was no objective justification for the minimum separation distances proposed in the "Emerging Policy" and the "evidence base" relied on by the Council in support of its policy is highly contentious. But, as Mr Gordon Nardell QC, who appeared on behalf of the Claimant, made plain, those are not matters which the Claimant was inviting this court to consider.

4

The Claimant seeks to impugn the Wind SPD on the basis that it could not have been, and was not, lawfully adopted by the Council on four main grounds.

i) The Wind SPD was adopted as a "supplementary planning document". The Claimant contends that the Council had no power to do so. The Wind SPD had to be treated, so the Claimant submits, as a "development plan document". Such a document could only have been adopted by the Council if it had survived a more rigorous examination than that to which a "supplementary planning document" has to be exposed before it may be adopted. The Wind SPD was not subjected to that more rigorous examination.

ii) Secondly, if the Wind SPD might otherwise have been adopted lawfully as a "supplementary planning document", the Claimant nonetheless contends that it could not lawfully have been adopted by the Council given that, so the Claimant submits, the "Emerging Policy" in it conflicts with the adopted development plan for Milton Keynes.

iii) Thirdly, the Claimant contends in any event that, when preparing the Wind SPD, the Council failed to have regard to national policies and advice applicable to wind turbine development which is contained in guidance issued by the Secretary of State as it was required to do.

iv) Finally, even if the Wind SPD might have been lawfully adopted as a "supplementary planning document" notwithstanding these other objections, the Claimant contends that in all the circumstances the Council was obliged to have exercised its discretion to treat it instead as a "development plan document", rather than as a "supplementary planning document", or failed to have regard to the Secretary of State's guidance which indicated that it should have done.

5

I emphasise at the outset, therefore, that this case is not about the merits or demerits of the development of wind turbines. Nor is it about whether in this case the Council has discharged the requirement that a "supplementary planning document" must contain a reasoned justification for the policies it contains. Indeed Mr Nardell disclaimed any challenge to the rationality of the reasoned justification for the "Emerging Policy" contained in the Wind SPD and did not contend that it was a policy no reasonable authority could have adopted in the circumstances. This claim for judicial review is thus concerned only with the legality, not with the merits, of the Wind SPD.

6

In this judgment I shall deal with matters in the following order:

THE LEGAL BACKGROUND

Paras

The legal background

(i) the development plan and "local development documents"

[8]–[l5]

(ii) the manner in which "local development documents" are prepared and may be adopted or approved

[16]–[20]

(iii) which documents are "development plan documents" and which are "supplementary planning documents"

[21]–[28]

(iv) obtaining coherent guidance from "local development documents"

[29]–[35]

Policies for wind turbines in the adopted local plan and the "Emerging Policy" in the Wind SPD

[3 6]–[47]

Whether the Wind SPD was a "development plan document", a "supplementary planning document" or some other type of "local development document"

(i) submissions

[48]–[49]

(ii) the general function of a "supplementary planning document" and its definition in the 2012 Regulations

[50]–[61]

(iii) the requirements for a document to be a "supplementary planning document"

[62]–[64]

(iv) whether the Wind SPD was a document of a description falling within regulation 5(l)(a)(i) of the 2012 Regulations

[65]–[70]

(v) whether the Wind SPD contains a development management policy falling within regulation 5(l)(a)(iv) of the 2012 Regulations

[71]–[77]

(vi) whether the Wind SPD is a document of a description falling within regulation 5(1)(a)(iii) of the 2012 Regulations

[78]–[82]

(vii) conclusion

[82]

The alleged conflict with the adopted development plan

(i) submissions

[84]–[95]

(ii) this Court's function

[96]–[106]

(iii) the proper construction of Policy D5 in the adopted development plan

[107]-122]

(iv) whether the "Emerging Policy" was in conflict with the adopted development plan

[123]–[151]

Whether the Council failed to have regard to national policies and advice contained in guidance issued by the Secretary of State

(i) introduction

[152]–[153]

(ii) submissions

[154]–[159]

(iii) consideration

[160]–[189]

Whether the Council was obliged to exercise a discretion to treat the Wind SPD as a "development plan document" and whether it failed to take into account the Secretary of State's guidance in not doing so

(i) submissions

[190]–[192]

(ii) whether a local planning authority has a discretion to treat a "local development document" as a "development plan document" when it is not required to do so

[193]–[197]

(iii) whether any discretion the Council had to treat the Wind SPD as a "development plan document" was unlawfully exercised

[198]–[202]

A summary of my conclusions

[203]–[218]

Annex: relevant guidance issued by the Secretary of State

7

As will already be apparent from my summary, the Claimant's case depends in part on understanding what documents are, or may be treated as being, "development plan documents" or "supplementary planning documents" and what requirements such documents have to satisfy before they can be adopted by a local planning authority. To obtain such an understanding requires an exploration of some of more obscure parts of the labyrinthine scheme governing planning in England. I propose initially simply to outline the main relevant features of this scheme by way of background to facilitate that understanding, exploring some of the more obscure aspects only when dealing with the contentions of the parties on the issues which this claim for judicial review raises.

(i) the development plan...

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4 cases
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