The Queen (on the Application of Benjamin Cameron Howell) v Waveney District Council
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 07 December 2018 |
| Neutral Citation | [2018] EWHC 3388 (Admin) |
| Docket Number | Case No: CO/1769/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 December 2018 |
[2018] EWHC 3388 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Ross Cranston
(sitting as a judge of the High Court)
Case No: CO/1769/2018
Richard Harwood QC (instructed by Harrison Grant) for the Claimant
Jack Parker (instructed by Waveney District Council) for the Defendant
Jeremy Pike (instructed directly by public access) for the First Interested Party
Hearing dates: 27 November 2018
Approved Judgment
INTRODUCTION
These judicial review proceedings challenge the decision of the Waveney District Council (“the Council”) to approve the details under certain of the conditions imposed on a planning permission for a wind turbine. In outline, the claimant's case is that the Council wrongly discharged the conditions relating to aviation safety and archaeological work since they had been breached; that as a consequence of their breach the planning permission has expired; and that the Council also failed to comply with the publicity and consultation requirements relating to environmental matters. He applies for an order quashing the decision that the planning permission was capable of implementation; a declaration that the planning permission has expired; and an order quashing the approval of details under the conditions.
BACKGROUND
The claimant is the owner and occupier of Crake Hall, which is the nearest dwelling to the proposed turbine. The defendant is the local planning authority for the area. The first interested party in these proceedings is the developer, Stamford Renewable Power Limited (“Stamford”), whose sole director and shareholder is Mr Michael Stamford.
The second and third interested parties, Mr Sergey Grachev and Ms Celeste Blois, own and operate Church Farm Airstrip. This is a small airfield which is unlicensed but recognised by the Civil Aviation Authority. There is a helicopter school, and microlight and light aircraft fly from the strip. They support the present claim in respect of the aviation condition although they did not appear at the hearing. The fourth and fifth interested parties, Mr Geoffrey and Mrs Brenda Meen, own the land where the turbine is to stand. They also did not appear in these proceedings.
The developer applied for planning permission for a wind turbine in 2012 at Shipmeadow, near Beccles, Suffolk. This is near The Broads National Park. The wind turbine is to have an 80 metre hub height and its height to the blade tip will be 125 metres. There is also to be a 60 metre high wind mast and ancillary infrastructure. The application was opposed by The Broads Authority, ten town and parish councils and many local residents, including the claimant. The Council refused planning permission on visual, landscape and noise grounds. The developer appealed.
The inspector's decision and its aftermath
The planning inspector who heard the appeal granted planning permission in a decision dated 2 April 2014 (“the inspector's decision”). For the purposes of the relevant planning policies, he said, the potentially significant adverse effects of the development were adverse landscape effects, with some visual effects. There was also an adverse effect in some conditions on the convenient operation of flying activities at Church Farm Airstrip if safe flying practices were to be maintained. However, the inspector found significant renewable energy benefits from the turbine. Thus the overall planning balance came down in favour of the development.
Early on in his decision the inspector noted that the application was accompanied by an Environmental Statement which, he concluded, addressed the environmental impact of the proposal.
Following a lengthy consideration at paragraphs 35–106 of landscape character, visual impact and noise, the inspector addressed aviation. He outlined the Civil Aviation Authority's policy and guidelines on wind turbines and its advice, Safe Operating Practices at Unlicensed Aerodromes. He concluded that the presence of the turbine could create an increased risk of collision: paras 112–113. He noted that the airstrip did not have the benefit of either a planning permission or a certificate of lawful use, although there was the possibility that one could be obtained: para. 113. The inspector noted that the non-technical summary of the Environmental Statement acknowledged that the turbine would have a minor impact on flying activities: para. 114.
After summarising the views of the developer and the owners and operators of the airstrip at paragraphs 115–116, the inspector summed up aviation at paragraphs 117–118. The developer accepted that the turbine would affect flying activities but asserted that the effect would be minor; the latter considered that the effect would be greater and that although activities would not cease it would significantly constrain them.
In the inspector's view the turbine would be a safety-hazard, although its effects and their mitigation were disputed. The weight to be accorded to them was reduced, he continued, because the airstrip appeared to provide only for hobby activities and because of its planning status. The inspector summed up: “Nevertheless there is some evidence of potential harm to aviation safety which needs to be included in the planning balance.” In introducing the conditions he stated that aviation conditions were required in the interests of safety.
Under the heading “other matters” the inspector stated that consideration had been given to all other matters raised in representations. He then addressed a variety of issues, but not archaeology. However, in introducing the conditions which he proposed on the permission, he had a sentence that an archaeology condition was required “as the appeal site may be of archaeological interest.”
Condition 1 in the inspector's schedule of conditions is in standard form: the development shall begin not later than three years from the date of the decision.
Conditions 3 and 4 concern aviation. Condition 3 reads:
“3. No development shall commence until at least 3 months after the applicant, or their agents or successors in title, has provided written confirmation of the following details to the Local Planning Authority:
(a) Proposed date of commencement of the development
(b) The maximum extension height of any construction equipment
(c) The expected date of completion of construction
(d)The height above ground level of the highest potential obstacle (anemometry mast or wind turbine)
(e) The position of that structure in latitude and longitude.”
Condition 4 provides for aviation lighting for the turbine.
Archaeology is dealt with in conditions 6–8. Condition 6 states that no development is to take place within the development site until implementation of a programme of archaeological work has been secured, in accordance with a Written Scheme of Investigation submitted to and approved in writing by the Council. Condition 7 sets out what a scheme of investigation should include, for example methodology, post investigation analysis, archive deposition of the analysis, and “(g) the site investigation shall be completed prior to development, or in such other phased arrangement as agreed and approved in writing by the [Council].” Condition 8 adds that no development shall be commenced until the site investigation and post investigation assessment has been completed, submitted to and approved in writing by the Council, and provision made for analysis, publication and retention of the results.
The claimant challenged the inspector's decision under section 288 of the Town and Country Planning Act 1990, in particular with regard to the effect on the Broads. He was unsuccessful: Howell v Secretary of State for Communities and Local Government [2014] EWHC 3627 (Admin); [2015] EWCA Civ 1189. Despite the adverse impacts, the Court of Appeal held, the inspector had been entitled to conclude that the turbine would not fail to conserve and enhance the natural beauty of the Broads area. Permission to appeal to the Supreme Court was refused on 5 May 2016.
Application to discharge conditions
As a result of the legal proceedings the period within which the development had to begin was extended by a year, to 2nd April 2018: see Town and Country Planning Act 1990, s 91(3A), (3B).
On 26 January 2018 the developer sought the approval of pre-commencement details required by the conditions on the planning permission and the discharge of some sixteen conditions. In relation to conditions 3 and 4 concerning aviation, which it acknowledged as condition precedent, the developer explained that the Ministry of Defence had been consulted. In relation to condition 4 its low flying technical advisor had requested that the turbine have lighting meeting certain specifications, which the developer had accepted.
As regards conditions 6–8, concerning archaeology, also acknowledged as condition precedent, the developer stated that the consultants Suffolk Archaeology CIC (formerly the Field Team of Suffolk County Council) had been commissioned to carry out the monitoring and reporting tasks required when access and track works were scheduled to begin.
Attached was a Written Scheme of Investigation from them. It described how the archaeological work would involve what was described as “strip, map and excavate” and “continuous archaeological monitoring”. It provided for an experienced field archaeologist to be constantly present when groundworks were carried out. Records would be made. Contractors would “allow time during...
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