Hulme v Secretary of State for Communities and Local Government & Anor

Planning conditions must be construed benevolently and in the context of the decision letter as a whole. A condition is not invalid merely because it is incomplete, ambiguous or capable of absurd results, provided it has a sensible and ascertainable meaning. Where express conditions necessarily indicate that a developer must comply with a specified standard, the court may construe them as imposing that obligation. It need not treat the obligation as an impermissible implied condition. Here, the conditions required compliance with specified amplitude-modulation noise limits throughout the planning permission. The monitoring scheme provided measurement and evaluation only; it was not itself the enforcement mechanism, and a penalty under general noise limits could not substitute for compliance.

The appellant challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s grant of planning permission for a nine-turbine wind farm. A previous challenge had resulted in the permission being quashed by consent, after which a fresh inquiry was held and permission was granted again.

The High Court dismissed the second challenge in [2010] EWHC 2386 (Admin). Permission to appeal was granted on one issue: whether conditions 20 and 21, concerning excessive amplitude-modulated turbine noise, were legally effective. The central question was whether the conditions imposed an enforceable obligation to comply with the specified noise limits, and how the monitoring scheme was to operate.

1. The appeal was dismissed. Elias LJ gave the leading reasons, with Patten and Mummery LJJ agreeing.
2. Conditions 20 and 21 had to be read in the context of the inspector’s decision letter and the planning permission as a whole. The conditions were difficult to draft and condition 21 was opaque, but a benevolent and sensible construction was required. The court rejected a construction under which the scheme would terminate immediately after a single complaint had been assessed. It could terminate only if the developer satisfied the local planning authority that no breach could occur in any circumstances. The obligation to comply with condition 20 continued for the life of the permission.
3. The reference in condition 21 to evaluating compliance with condition 20 presupposed a substantive duty to comply with the condition 20 limits. That duty arose by necessary construction from the express conditions and their context. The monitoring scheme under condition 21 was confined to measuring and evaluating the noise. It was not the source of the enforcement obligation.
4. A penalty mechanism linked to the general noise limits in condition 16 could not replace compliance with condition 20, since it might permit excessive amplitude modulation without an effective remedy. Enforcement of the condition 20 obligation was available to the planning authority in the ordinary way.
5. The decision in Trustees of Walton on Thames Charities v Walton and Weighbridge District Council [1970] 21 PMCR 411 did not prevent this construction. That case concerned an obligation derived from extrinsic circumstances. The present obligation was a necessary reading of the express conditions against the decision letter, and was more accurately described as construction than implication. Sevenoaks District Council v The First Secretary of State [2004] EWHC 771 did not dictate a different result because it concerned conditions not read against the background of a decision letter.
6. Patten LJ added that lack of verbal or grammatical completeness need not defeat a condition whose meaning and effect were readily comprehensible to an informed reasonable reader. He drew a limited analogy with Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988.

• Court of Appeal (Civil Division) dismissed the appeal and upheld the High Court’s dismissal of the statutory challenge.
• High Court of Justice, Administrative Court dismissed the appellant’s second application under section 288 of the Town and Country Planning Act 1990 in [2010] EWHC 2386 (Admin).