The Friends of Hethel Ltd, R (on the application of) v Ecotricity

A local authority may lawfully delegate planning decisions through area committees and provide that an application is referred to a fuller committee where the area committee cannot obtain the required internal majority to depart from officer advice. A committee report is not unlawful merely because it omits information if the report, accompanying documents, representations and members’ knowledge enable an informed and lawful decision. Planning conditions may contemplate access to third-party land where, in practical terms, complainants can reasonably be expected to co-operate. Failure to publicise an environmental-impact decision breaches the applicable requirements, but does not necessarily invalidate the planning permission where the obligation concerns information supplied after the decision.

The claimant sought judicial review of South Norfolk District Council’s grant of planning permission to Ecotricity for three wind turbines at the Lotus Cars site in Norfolk.

The challenge alleged that the planning committee lacked jurisdiction under the council’s constitution; that the committee had failed to address listed-building, noise and safety matters; that the committee report was misleading; that conditions concerning noise, shadow flicker and television interference were unreasonable or unenforceable; and that the council had failed to publicise the decision as required by environmental-impact assessment legislation.

1. Constitutional arrangements. The majority-voting requirements in paragraphs 39 and 44 of Schedule 12 to the Local Government Act 1972 were subject to the council’s statutory power of delegation under section 101(1)(a). The area committee’s 5–3 vote was not the final planning decision. It demonstrated that the constitutional precondition for the matter to stand referred to the full planning committee had not been met. The full committee then determined the application by a majority of members present and voting.
2. Listed buildings and committee report. The council’s assessment that the consultation and publicity duties had not been triggered was a planning judgment and was not irrational. A report must be assessed for overall fairness, taking account of other documents, representations and the knowledge of committee members. Although the report and Environmental Statement failed to identify all the adverse effects on listed buildings, the available material and public representations meant that any defect would have been corrected before the decision.
3. Noise and safety. The committee had sufficient information about the ETSU-R-97 assessment and was entitled to rely on its environmental services department’s technical view. Safety was capable of being a material planning consideration, but its materiality and weight were matters of planning judgment. The report recorded the relevant objections, and the committee was entitled to conclude that they did not justify refusal.
4. Planning conditions. Conditions must be precise, intelligible and enforceable. The principle in Davenport v London Borough of Hammersmith and Fulham [1999] J.P.L. 1122 had to be applied in light of practical realities. Conditions protecting residential amenity could reasonably contemplate access to third-party land, since a person sufficiently concerned to complain could ordinarily be expected to permit investigation and remedial work.
5. Publicity. The council breached regulation 21 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 by failing to advertise the decision and provide the required statement, including information about judicial review. The breach concerned post-decision information and did not invalidate the permission. A declaration was nevertheless appropriate to mark the failure.
6. The claim to quash the planning permission was dismissed. The court granted a declaration concerning the breach of the publicity requirements. The challenge to the later lighting resolution was academic and no relief was granted on that issue.

Not stated in the judgment. This was a first-instance judicial review in the Administrative Court.