Hulme, R (on the application of) v Secretary of State for Communities & Local Government

In a challenge under section 288 of the Town and Country Planning Act 1990, an inspector’s decision will not be quashed for inadequate reasons unless the claimant shows substantial prejudice. A concise statement is sufficient where it makes the essential conclusion and its basis clear.

Planning conditions should be construed benevolently and as a whole. A condition is sufficiently precise if, read with incorporated plans, figures and technical guidance, it provides an objective and enforceable method of determining compliance. The assessment of a windfarm’s contribution may properly use installed capacity where national and local planning policies require that approach.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s decision allowing an appeal against refusal of planning permission for a windfarm in Devon.

The challenge concerned the treatment of background-noise evidence, the refusal by the developer to disclose raw measurement data, the adequacy of the inspector’s reasons, the precision and enforceability of a noise condition, and the assessment of the windfarm’s contribution to renewable-energy generation.

1. The application was dismissed. The inspector’s decision contained no error of law and was not open to challenge on Wednesbury grounds.
2. The inspector’s concise reasoning on noise was legally sufficient. The decision clearly stated that the background noise levels had been suitably established in accordance with the ETSU-R-97 methodology and that an acceptable noise environment would prevail. Applying the approach summarised from South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953, the claimant had not shown substantial prejudice caused by the brevity of the reasons.
3. The absence of raw data did not establish procedural unfairness. The inspector had not seen the data either, and the claimant had not sought an adjournment to obtain it. In any event, the inspector had evidence from the environmental statement, the relevant methodology and an expert witness indicating that the measurements had been properly undertaken.
4. Condition 13 was sufficiently precise and enforceable. Following Carter Commercial Developments Ltd v Secretary of State for the Environment [2002] EWHC 1200, planning conditions were to be construed benevolently and as a whole. The figures incorporated into the condition made clear that the five-decibel uplift was measured from the solid best-fit line, not from individual measurements. The ETSU guidance clarified the meaning of the five-decibel limit and supplied a viable method for measuring wind speed and noise. Measurement by the developer was not impermissible.
5. The October timing of the background-noise measurements was immaterial. Even on the claimant’s lower summer background-noise assumption, the predicted turbine noise would remain below the condition’s daytime upper limit.
6. The inspector was entitled to assess the windfarm’s contribution by installed capacity rather than anticipated practical output because that was the approach required by the applicable national and local plans.
7. The Secretary of State was awarded costs of £9,124. No separate costs order was made in favour of the interested developer.

First-instance judicial review claim. The judgment records the earlier refusal of planning permission by West Devon Borough Council and the inspector’s decision allowing the developer’s planning appeal.