South Northamptonshire Council & Anor v Secretary of State for Communities and Local Government & Anor

In a challenge under Town and Country Planning Act 1990, section 38(6) requires more than an unstructured balance of planning considerations. The decision-maker must recognise the development plan’s statutory priority, identify any conflict with it, and then decide whether material considerations justify departing from it. The court reviews whether that approach was followed, while leaving the weight of competing considerations to the planning decision-maker. A decision-maker may use ETSU-R-97 as the appropriate methodology for assessing wind-farm noise, provided that choice is a lawful exercise of planning judgment. Statutory duties concerning listed buildings and conservation areas need not be repeated as a separate formula where the decision, read as a whole, shows that the duties were understood and applied.

South Northamptonshire Council and Deidre Veronica Ward challenged, under section 288 of the Town and Country Planning Act 1990, an Inspector’s decision granting Broadview Energy Developments Limited planning permission for five wind turbines at Spring Farm Ridge. The challenges concerned the statutory priority of the development plan, the duties relating to listed buildings and conservation areas, the adequacy of reasons, wind-farm noise, and visual effects on residential amenity.

The Inspector had identified conflicts with development-plan policies but granted permission after weighing those conflicts against national renewable-energy policy and other benefits. The central issue was whether that decision lawfully applied section 38(6) of the Planning and Compulsory Purchase Act 2004 and the other statutory duties.

1. Ground 1 succeeded. Section 38(6) requires a plan-led approach. The development plan must be the starting point and must receive statutory priority. Material considerations may justify departure, but the decision-maker must recognise that the scales do not begin in even balance. The Inspector identified the development plan, relevant conflicts and material considerations, but her decision showed only a general balancing exercise. It did not indicate awareness of the plan’s priority or of the plan-led concept. The failure was legally material.
2. The court applied the principles in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 and the subsequent explanation in Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Winchester City Council [2011] 1 P & CR 22. The weight given to planning considerations remains for the Inspector, but the statutory priority of the development plan must first be recognised.
3. Ground 2 failed. The Inspector expressly referred to sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 and carefully assessed the effects on heritage assets. The statutory duties did not require a separate, paragraph-by-paragraph exercise. The reasoning, read as a whole, showed that the duties had been taken into account.
4. Ground 4 failed. ETSU-R-97 could lawfully be treated as the appropriate measure of wind-farm noise in this case. The fact that an Inspector may consider factors beyond ETSU compliance does not require every Inspector to do so. The choice of methodology and the imposition of a condition were matters of planning judgment.
5. Ground 5 failed. The Inspector’s references to a property being unattractive, unsatisfactory or unsuitable as a place to live did not establish an unlawful threshold. Read in context, she was applying the relevant development-plan policy and making a planning judgment about residential amenity.
6. The remaining reasons challenge failed. The judgment records that Ground 1 succeeded and the other four grounds failed. Questions of remedy and the draft order were left for the hand-down hearing.