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, a planning decision letter must be read fairly and as a whole. An inspector need address the principal controversial issues, not every argument or item of evidence. The court will not substitute its own planning judgment for that of the decision-maker. Planning conditions are not void for uncertainty if, read in context, they have a sensible and ascertainable meaning. National planning guidance may be departed from where clear reasons are given and a more robust methodology is adopted. Consideration of alternatives is ordinarily a matter of planning judgment. A decision-maker may comply with the Habitats Regulations without expressly naming them where the substance of the required considerations has been addressed.

The claimant, owner of land near a proposed wind farm, challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s decision to grant planning permission for nine turbines. The permission followed a resumed public inquiry and an inspector’s recommendation that the appeal be allowed, subject to conditions addressing noise, including amplitude modulation.

The challenge maintained nine grounds concerning noise conditions and methodology, uncertainty, alternatives, landscape and visual impact, bats, the Habitats Regulations and PPS22. One noise ground was withdrawn. The central questions were whether the inspector had erred in law, failed to give adequate reasons, acted irrationally, or failed to comply with relevant statutory and policy requirements.

The claim was dismissed. The court rejected all nine maintained grounds.

1. Noise conditions. Conditions 20 and 21 were to be read in the context of the decision letter. Condition 21 prevented operation until an approved scheme for measuring amplitude modulation had been submitted. The scheme was intended both to evaluate compliance and to provide a basis for enforcement if excessive modulation was identified. It was not confined to an initial complaint and did not fall away after one approval or demonstration of compliance. It was intended to endure for the life of the permission. Although imperfectly drafted, the conditions had a sensible and ascertainable meaning and were not void for uncertainty.
2. ETSU methodology and reasons. The inspector was entitled to depart from the 10-metre reference-height methodology in ETSU-R-97. He explained that hub-height correlation provided a more robust and reliable method and preserved the underlying objective of relating background noise to turbine noise. The reasons were adequate and the competing evidence had been considered.
3. Uncertainty and precaution. The inspector recognised uncertainty in noise prediction but addressed it through appropriately worded conditions, particularly to protect sleep and regulate amplitude modulation. His approach was neither irrational nor inadequately reasoned.
4. Alternatives and planning policies. Given the finding that the harm was fairly limited, there was no legal obligation to consider alternative sites or alternative renewable technologies. The inspector nevertheless considered alternative sites proportionately. Policy NE10 did not require consideration of alternative forms of renewable energy. Since harm had been found under Policy CO1, the question whether the development enhanced the landscape did not arise.
5. Bats and the Habitats Regulations. The inspector considered harm to individuals, roosts and local populations. Although he did not identify the Regulations by name, he substantially complied with them by addressing protected species, alternatives and conservation status. The court allowed the late amendment raising the point only because it was an exceptional case involving a legal issue requiring no further evidence. Any defect would in any event have been formal rather than substantive, so quashing would have been pointless.
6. Final orders. The claimant was ordered to pay the first defendant’s costs, assessed if not agreed, subject to a maximum of £5,000. Permission to appeal was refused. An expedited transcript was ordered.

The judgment was a first-instance decision on a section 288 challenge. It records that an earlier legal challenge to the planning appeal had been dismissed by the High Court, permission to appeal had been granted, and the matter was later resolved by consent order with the decision quashed and the appeal remitted for redetermination. No citation for that earlier decision is stated.