Planning Impacts

February 19th, 2018

Limiting carbon emissions in an effort to arrest global warming and climate change is a major policy objective of the government. EU law and national law, in the form of the Climate Change Act 2008, impose challenging national targets to reduce carbon emissions and seek to encourage a shift to utilising renewable sources of energy. That policy objective is also carried into Section 10 of the NPPF, headed “Meeting the challenge of climate change, flooding and coastal change”.

On 18 June 2015 a written ministerial statement (“the Statement”) was made by the SoS for CLG. It set out new considerations touching applications for planning permission for wind turbines.  The Statement included that in specified circumstances LPAs can find for a proposal, if following consultation, they are satisfied it has “addressed” the planning impacts identified by affected local communities and therefore has their backing.  The Statement is a “material consideration” for the purposes of Section 38(6) of the Planning and Compulsory Purchase Act 2004.  It is capable of outweighing policy in the development plan for the area.

In R (Holder) v Gedling Borough Council (2018) EWCA Civ 214 the Appellant challenged the grant by the Council of planning permission for the construction of a wind turbine. The LPA had concluded that the development was in accordance with the guidance in the Statement because the planning impacts were sufficiently “addressed” to sustain the conclusion that the proposal had local backing.

The issue is whether the Council had correctly interpreted the Statement, or whether, as the Appellant contended, a planning impact can be “addressed” only if it is eliminated or resolved. The Court of Appeal held that the Appellant’s contention was wrong and the Council had not misinterpreted the Statement. The Appellant’s contention was contrary to the natural meaning of the language used in the relevant part of the Statement, especially when it is read in the context of the Statement as a whole and in the wider legislative and policy context.

The Lord Chief Justice, delivering the Judgment of the Court, said:-

“21.      The Statement does not provide a test for what is to count as the relevant local community in relation to any particular development. That will depend on the facts of the case and the planning judgment of the local planning authority. …

  1. In our view, the natural meaning of the relevant phrase in the last sentence of the Statement is that a local planning authority can find the proposal acceptable if it has sufficiently addressed the planning impacts identified through consultation with the relevant local community to the extent that it can properly conclude, in the exercise of its planning judgment, that the balance of opinion in the local community is likely to be in favour of the proposal.
  2. The more stringent interpretation of the final paragraph of the Statement urged on us …is not tenable. … it would effectively involve reading the word “addressed” to mean “resolved” or “eliminated”. The usual position when considering an application for planning permission is that a range of potential benefits has to be weighed against a range of incommensurable potential detriments. It is rarely the case that it can be said that every potential detriment has been eliminated, as opposed to being mitigated and outweighed by countervailing benefits.
  3. Therefore, in the planning context the natural meaning of “addressed” is “sufficiently addressed”; that is to say, sufficiently addressed by taking into account mitigating factors and countervailing benefits. If the drafters of the Statement had intended the stronger meaning urged …, there is little doubt they would have used appropriate stronger language to make that clear.
  4. Further, Mr Harwood’s proposed interpretation of the Statement impermissibly removes the word “addressed” from the immediate context of the sentence in which it appears. According to the Statement, a planning authority can find a proposal acceptable if they are satisfied that it has addressed the planning impacts identified by the affected local community and therefore has their backing.
  5. A local community will comprise people who are likely to have a range of views in relation to a proposal along a spectrum, perhaps ranging from strong opposition on grounds that can never be assuaged to strong support, with many people somewhere in the middle with views that are capable of being affected by steps taken to mitigate or reduce the impact of a particular proposal on the local area. Some may have made representations to the planning authority in response to the consultation exercise contemplated by the Statement, either in favour of the proposal or against it; but it will often be the case that many members of the local community will not have done so. The planning authority therefore has to make a judgment, taking account of the representations received and assessing the weight and significance of any objections raised, as to where the balance of opinion is likely to lie within the local community as a whole, including its members who have not made representations. Where, for example, issues are raised by some objectors regarding impact on visual amenity – as will almost invariably be the case – the planning authority may take account of the numbers raising that issue (and the numbers not raising it) in the representations received. They may also make an assessment of the seriousness of the visual impact and whether sufficient steps of mitigation or local screening may have been taken so as to minimise the impact to a degree where it can be satisfied that the balance of view within the local community as a whole is to regard the proposed development as acceptable and worthy of their backing.
  6. Assessment of the balance of view within the local community as a whole, including those who do not make representations but who can be presumed to be reasonable members of the public, means that the planning authority will inevitably have to consider whether planning impacts mentioned by some members of the local community have been sufficiently addressed by the proposal. The authority will consider measures, including careful siting and mitigation of impact by screening, and make a judgment about whether they can be satisfied that the balance of view within the local community as a whole is positive. The balance of view in the local community as a whole may well be positive, even though some planning impacts have not been wholly eliminated (but only sufficiently dealt with) and even though some members of the local community may never be persuaded to view the proposed development in a favourable light.
  7. The nature of the assessment to be made by the local planning authority is a strong indication in favour of the interpretation of the last paragraph of the Statement we have set out above and against the interpretation proposed by Mr Harwood. Put another way, the Statement does not elevate those members of the local community who have views which are the most vehemently opposed to a proposal into the arbiters of the view of the local community as a whole.
  8. Our interpretation of the last paragraph of the Statement is also strongly supported by consideration of the wider context of the Statement.
  9. In the opening paragraph of the Statement, the Secretary of State says that it is intended to give local people “the final say” on wind farm applications. In the second paragraph he refers to a limited number of consequential changes to planning guidance, but the main provisions of national policy set out in section 10 of the NPPF are left unaltered. Both these points are significant.
  10. Although the Statement is intended to be additional policy guidance which may well affect planning decisions, it is plainly not intended to be completely at odds with national policy in relation to renewable energy nor with policies in local plans made in conformity with paras. 94 to 96 of the NPPF to promote the use of renewable energy. The appellant does not suggest that it completely supersedes or in some way trumps all other planning guidance. Yet if the Statement were interpreted as proposed by the appellant, then whenever an objector in the local community referred to a negative planning impact from a proposal which could not be completely eliminated (such as is likely to be the position with impact on visual amenity in almost every case involving proposed wind turbine developments in the countryside) the local planning authority would be forced to weigh the Statement against other very weighty factors in national and local policy in favour of the proposal. The likely result would be that in many cases the Statement, as so interpreted, would be outweighed and would be overridden. That would mean that the apparent assurance given by the Secretary of State in the Statement would frequently turn out to be hollow. The Secretary of State cannot have intended that the Statement should have a meaning which would have this result.
  11. Conversely, if the Statement is given the interpretation for which he appellant contends, in many more cases than on our interpretation it will come into conflict with national policy and local policy in favour of renewable energy. In some of that wider range of cases local planning authorities may apply the Statement and treat national policy and local policy as overridden. This would have the effect of undermining national and local policies to a significantly greater degree that the Secretary of State can have intended. It is clear from the second paragraph of the Statement and the absence of any change to section 10 of the NPPF that the Secretary of State intended that the Statement would have a much more modest impact on existing national and local policies than this. The interpretation we favour locates the statement in its proper place in the range of applicable policies.
  12. Further, the language of the transitional provision in the last paragraph of the Statement is in marked contrast to that in the second bullet point, setting out the Secretary of State’s substantive new policy governing future planning applications. For such planning applications, the onus is on an applicant for planning permission, or a local planning authority which proposes to grant permission, to “demonstrate” that the planning impacts identified by affected local communities “have been fully addressed …”; rather than, when the transitional provision applies, the local authority merely having to be “satisfied [the proposal] has addressed the planning impacts”, with the consequence that it has the backing of the local community. This difference in drafting again indicates that the word “addressed” in the transitional provision simply means “sufficiently addressed”, not “eliminated” or “resolved”. The stronger language used in the second bullet point indicates that in relation to planning applications made after the Statement was made, the local planning authority has to be satisfied to a higher level of confidence, as compared with the approach in transitional cases, that its assessment that there is a balance of view in the local community as a whole which is favourable towards the proposal is justified. There remains a judgement to be made which recognises that some objections are not capable of being eliminated altogether.”

 

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