Derbyshire Dales District Council & Anor v Secretary of State for Communities and Local Government & Anor

Possible alternative sites are generally a potentially relevant planning consideration. They do not, however, create a legal duty to investigate alternatives merely because a proposed development conflicts with the development plan. Short of irrationality, such a duty arises only where statute or policy expressly or impliedly requires it, including because the matter is obviously material. In the absence of identified alternatives or a policy requirement, the question remains one of planning judgment.

Regional renewable-energy targets must not directly determine an individual planning application. They may nevertheless be material, because targets can be achieved only through the accumulated effect of individual permissions. An inspector may rationally give significant weight to a proposal’s contribution to those targets.

Carsington Wind Energy Ltd sought planning permission for four wind turbines and associated works. Derbyshire Dales District Council refused permission. On appeal, an inspector acting for the Secretary of State allowed the appeal and granted permission subject to conditions.

The Council, supported by the Peak District National Park Authority, challenged the decision under section 288 of the 1990 Act. The challenge did not dispute the inspector’s detailed assessment of landscape, National Park and conservation-area effects. It concerned whether he was legally required to investigate alternative sites, and whether regional and national renewable-energy targets could be weighed in deciding the individual application.

1. The application was dismissed. The inspector made no error of law in granting planning permission. The limited conflict with development-plan policies was a matter for his planning balance.

2. The court applied the distinction drawn in Trust House Forte Ltd v Secretary of State (1986) 53 P&CR 293. A decision-maker may take account of alternative sites, but a court may only find legal error in failing to do so where a statute or policy imposes that obligation, expressly or by necessary implication. The mere possibility that another site might cause less harm is insufficient.

3. The exceptional circumstances in Secretary of State v Edwards (1994) 60 P&CR 607 CA were absent. There, competing identified sites were before the Secretary of State for a development for which only a limited number of permissions could be granted. Here, no alternative site had been identified. The statutory provisions and policies protecting the National Park and conservation areas required special regard to their protection, but did not impose a positive duty to investigate alternatives.

4. R(Bovale Ltd) v Secretary of State [2008] EWHC 2538 (Admin) did not establish the suggested general rule. It concerned whether an inspector could lawfully consider identified alternatives, rather than whether an inspector acted unlawfully by not considering unidentified alternatives. The court also held that the relevant renewable-energy policy did not compel an alternatives review.

5. The inspector was entitled to reconcile the policies on renewable-energy targets. Strategic targets could not directly dictate the grant or refusal of an individual application. They remained material to the planning balance, since individual permissions collectively determine whether the targets are achieved. His conclusion that the proposal’s contribution merited significant weight was rational.

6. The authorities were to pay the Secretary of State’s costs. There was no order as to Carsington’s costs.

• High Court (Administrative Court): The court dismissed the authorities’ statutory challenge to the inspector’s decision.
• Inspector acting for the Secretary of State: Following the Council’s refusal of planning permission, the inspector allowed Carsington’s planning appeal on 27 September 2008 and granted permission subject to conditions.