Colman v Secretary of State for Communities and Local Government -& Ors

In a planning challenge under Town and Country Planning Act 1990, the decision-maker must identify the express terms of the development plan and assess their consistency with the National Planning Policy Framework. A material consideration cannot be read into a restrictive policy to create a balance which its wording excludes. Where relevant policies are out of date, the Framework’s paragraph 14 approach is engaged: permission should be granted unless adverse impacts significantly and demonstrably outweigh the benefits assessed against the Framework as a whole. The weight given to the development plan remains a matter for planning judgment. A decision-maker also satisfies the statutory duty concerning listed buildings by carefully assessing effects on their settings and giving special regard to preservation.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision granting permission for nine wind turbines at Batsworthy Cross, after the local planning authority had refused permission.

The challenge alleged failures to analyse development-plan policies, assess their consistency with the National Planning Policy Framework, apply paragraph 14 of that Framework, assess impact on Exmoor National Park under Policy CO2, and comply with section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. The central issues were whether the inspector had adopted the legally required planning approach and whether his conclusions were irrational or inadequately reasoned.

1. The claim was dismissed. The inspector had correctly begun with the relevant development-plan policies and assessed the proposal against them.
2. Policies ENV1 and CO1 were expressed in restrictive terms. They did not permit countervailing economic or environmental benefits to be balanced against identified landscape harm. The NPPF adopted a materially different cost-and-benefit approach. A material consideration could not be read into the policies to remove that inconsistency.
3. Policies CO7 and ENV17 likewise required conservation or preservation and left no express room for harm to be balanced against benefits. The NPPF instead distinguished substantial from less-than-substantial harm and required harm to be weighed against public benefits. The inspector was entitled to endorse that approach.
4. Policies CO12 and ECN15 were tied to the expired 2010 renewable-energy target and were substantively restrictive. They were inconsistent with the NPPF’s encouragement and support for renewable energy where adverse impacts could be addressed satisfactorily. The inspector was entitled to treat them as outdated and to apply paragraph 14 of the NPPF.
5. Section 38(6) of the Planning and Compulsory Purchase Act 2004 required a substantive, rather than formal, inquiry into whether the statutory approach had been applied. The inspector was not required expressly to mention the section. Once relevant policies were outdated, the weight given to the development plan and the balance against other material considerations were matters for the decision-maker, subject to legality and rationality.
6. The inspector’s conclusion that the wind farm would not damage the natural beauty, character or special qualities of Exmoor National Park was a planning judgment rationally open to him.
7. The inspector had given special regard to the preservation of listed buildings and their settings under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. He had carefully assessed the effects, found significant harm only in relation to All Angels, assessed it as less than substantial, and was entitled to conclude that the limited overall harm did not outweigh the development’s substantial benefits. Permission to amend the claim to add this ground was refused.
8. The reasons challenge also failed. The inspector addressed the relevant issues, material considerations and reasoning sufficiently to show why the claimant’s arguments were rejected.

First-instance judicial review-style statutory challenge under section 288 of the Town and Country Planning Act 1990. The inspector’s planning permission was upheld.