Held in the Balance

A court has found that new planning guidance on determining planning applications for renewable energy in England should look at the balance of the view of the local community as a whole and whether this is positive.

In June 2015, the Secretary of State for Communities and Local Government released a written ministerial statement indicating that planning for onshore wind turbines will be “acceptable” if the planning authority has “addressed the planning impacts identified by local communities and therefore has their backing”.

The meaning of the statement has been considered in detail in a recent case heard in the Court of Appeal.

Mr Holder objected to a 2016 planning permission for a wind turbine on farmland in the green belt but his application for judicial review of the grant of the permission was dismissed. He then appealed against this dismissal, which was dismissed again.

His appeal was on the ground that in granting planning permission for the wind turbine, the local planning authority had misinterpreted the ministerial statement.  A number of objections had been lodged in respect of the application for the turbine, but the planning officer decided that all the negative planning impacts raised by the objections had been addressed and were outweighed by the public benefits of the development.  This rendered the development acceptable in accordance with the ministerial statement.  Mr Holder argued that the ministerial statement should be interpreted so that negative impacts identified by the local community had to be completely eliminated before an application was acceptable.

The Court of Appeal said that:

The 2015 written ministerial statement on addressing planning impacts identified by local communities of wind turbine planning applications in England did not require the local planning authority to be satisfied that all negative planning impacts had been eliminated.

In the planning context, the natural meaning of "addressed" in the written ministerial statement was "sufficiently addressed", taking into account mitigating factors and countervailing benefits. In this case, this had been achieved by the local planning authority when exercising its planning judgment.

The ministerial statement should therefore be read in the context of the statement as a whole and in the wider legislative and policy context.

Hence, a planning authority could find a proposal to be acceptable if it sufficiently addressed the planning impacts identified through consultation with the local community to the extent that it could properly conclude, in the exercise of its planning judgement, that the balance of opinion in the community was likely to be in favour of the proposal.

If the statement was construed in the way the appellant was arguing, whenever an objector in the local community referred to a negative planning impact from a proposal that could not be completely eliminated, the local authority would be forced to weigh the statement against other very weighty factors in national and local policy in favour of the proposal. This would likely result, in many cases, in the statement being outweighed and overridden, which could not have been its intention.

If you would like to speak to one of our specialist agricultural solicitors, please contact us 0161 941 4000 or email us lawyers@myerson.co.uk.

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