Appeal judges quash "unusual" wind farm decision

Date:

04/08/2010

Source:

Solicitor's Journal

Matter:

Friends of Hethel Ltd JR

File:

Appeal judges have quashed a district council's decision to approve a wind farm because of its unusual voting procedures.

South Norfolk District Council backed the wind farm, even though an area planning committee voted against it by 5:3. The application was referred to the main planning committee because the majority required for the area committee to make a decision was two thirds or more.

Giving the leading judgment in R (on the application of the Friends of Hethel) v South Norfolk District Council [2010] EWCA Civ 984, Lord Justice Sullivan said the appellants challenged the main planning committee's decision to grant permission for three wind turbines on the site of a Lotus factory in Hethel.

Sullivan LJ said he agreed with counsel for the appellants that the requirement for the area committee to have a two thirds majority was contrary to the voting provisions in the schedule 12 to the Local Government Act 1972.

He said the council could have "lawfully included a proviso" that the area committee had delegated authority to determine decisions, so long as its decisions, taken by a simple majority, were in accordance with the head of planning services. 
"If the two thirds requirement was unlawful, as I think it was, there was no valid reference to the planning committee and it did not have power to determine the application," he said.

Sullivan LJ added that the arrangements delegating power to the area planning committee were "lawful in principle".

The appeal judges quashed the planning permission for a second reason, on the basis that the district council had failed to properly consult English Heritage on the impact of the wind farm on the more than 200 listed buildings within five kilometres of the development, including 24 listed as Grade I or Grade II*.

Sullivan LJ said the question was whether the development would affect the listed buildings, not whether it would affect them so seriously that it would justify the refusal of planning permission.

"The extent of the effect, and its significance in terms of the setting of the particular listed building, are precisely the matters on which English Heritage's expert views should be sought."

He allowed the appeal by the Friends of Hethel on both grounds and quashed the permission. Lord Justice Lloyd agreed, as did Lord Justice Sedley, for different reasons.

Richard Harwood, barrister at 39 Essex Street, acted for the Friends. He said the district council's voting arrangements were "unusual" but possibly not unique.

"Had they been upheld, other councils might found them attractive," he added.