Finn-Kelcey v Milton Keynes Council

A breach of the consultation requirements for environmental information does not automatically invalidate planning permission. The court must consider whether the breach caused unfairness or could have affected the decision, and whether relief should be granted discretionarily. Information may be available in the circumstances even if it was not separately sent to an objector. Planning authorities applying PPS22 may not reject renewable-energy proposals simply because projected output is small or disputed, but must weigh the claimed benefits against the disadvantages. Committee members need not visit every requested viewpoint where they have sufficient reliable material. Challenges to planning permissions must be brought promptly: three months is not an automatic limit, but a claimant must show early seriousness and proceed with due expedition.

The claimant sought judicial review of Milton Keynes Council’s grant of planning permission for a seven-turbine wind farm. He alleged that wind-speed data had not been properly disclosed, that the officers’ report misstated the approach required by PPS22, and that the committee failed to visit requested viewpoints and gave inadequate reasons. The interested party opposed the claim and raised delay. A rolled-up permission and substantive hearing was ordered by Simon J. The central issues were whether the alleged procedural and planning errors justified relief and whether the claim had been brought promptly.

1. Environmental information. The Council breached Regulation 19(4) of the Town & Country Planning (Environmental Impact Assessment) Regulations 1999 by failing to send the relevant CD to the objectors. However, the developer had supplied the information to the Council, and the CD formed part of the supplementary environmental information. Whether information was available depended on the circumstances. In this case it was available, and there was no unfairness because its existence became known before the relevant Council decision and no effective attempt was made to obtain or assess it.
2. The domestic Regulations went further than Directive 85/EEC. The case was therefore distinguishable from Berkeley v Secretary of State [2001] 1 AC 603, where the information required by the Directive had not been made available. Even assuming the data was unavailable, the court was satisfied that it could not have affected the result. The claimant’s expert evidence was methodologically unsatisfactory, and the committee had concluded that the development would have no detrimental landscape impact.
3. PPS22. The officers’ report correctly conveyed that renewable-energy applications should not be rejected simply because projected output was small or the applicant’s figures might prove exaggerated. The claimed benefits remained material considerations to be weighed against the disadvantages. The committee’s reasons showed that it had undertaken that balancing exercise and concluded that there was no detrimental impact on the identified interests.
4. The committee acted reasonably in declining to visit every requested viewpoint. Members had access to photomontages and other relevant information and were entitled to conclude that a further visit was unnecessary. The phrase “on balance” in the reasons was not ambiguous.
5. The claim was also brought too late. Challenges to planning permissions require particular expedition. A claimant must demonstrate seriousness at an early stage and proceed promptly. The delay from January to April, including nearly a month after the Council’s pre-action response, was unjustified in the circumstances. Permission was refused.

Not an appeal. The judgment records that Simon J ordered a rolled-up permission and substantive hearing on 3 June 2008.