Holder, R (on the application of) v Gedling Borough Council & Ors

In planning judicial review, a local planning officer may guide the committee on which considerations are material to the particular proposal, provided the guidance is legally sound and does not wrongly exclude a consideration to which the authority is entitled to have regard. Alternative sites, alternative renewable-energy methods and expected output were immaterial here because policy required the application to be assessed on its individual merits and did not require proof of need or a sequential comparison. Economic benefits from diversification and reduced input costs were distinct from merely personal financial gain. A planning obligation may specify practical means of controlling land use. The relative difficulty of enforcing an obligation rather than a condition was not a proper ground for judicial review. An EIA screening opinion must involve specific evaluation, but the authority’s analysis may be established by evidence.

The claimant sought judicial review of Gedling Borough Council’s grant of planning permission for a wind turbine at Woodborough Park, in the Green Belt. The challenge concerned material planning considerations, errors in the issued decision notices, planning obligations and the adequacy of the environmental impact assessment screening opinion.

Permission to apply for judicial review had been granted by the Court of Appeal after refusals in the High Court. The Council accepted that, after issuing the original permission, it had no power to issue a further amended permission unless the original was revoked or quashed. The central issues were whether the committee had been misdirected, whether planning obligations addressed errors concerning conditions, and whether the negative screening opinion was lawful.

1. Disposition. The claim succeeded only to the extent that the second decision notice was quashed. The remaining grounds were rejected.
2. Material considerations. A planning officer may advise the committee what considerations are material to the particular proposal. The officer must not wrongly state that the authority is legally unable to consider a matter which is properly open to it. The weight given to material considerations remains for the decision maker, subject to Wednesbury review.
3. Alternative sites and alternative means of producing renewable energy were immaterial in the circumstances. Relevant policy did not require demonstration of need or a sequential test. A small renewable-energy project could not be refused merely because its expected output was limited, where it was otherwise acceptable and offered environmental and economic benefits.
4. A merely personal financial gain or redistribution of income was not a material planning consideration. Farm diversification and reduced energy costs were distinct wider economic benefits capable of contributing to very special circumstances in the Green Belt.
5. Planning obligations. The obligations fell within the broad language of section 106 of the Town and Country Planning Act 1990. Noise limits, monitoring arrangements and compliance procedures were particulars of a restriction on land use, not an impermissibly personal undertaking. The relative convenience or expense of enforcement by injunction was not a proper subject for judicial review.
6. Screening opinion. The Circular 02/99 threshold was an aid and could not replace consideration of the development, its location and its likely environmental effects. The officer had undertaken the required analysis and had not relied on the availability of information with the planning application as the reason for dispensing with an EIA. The third ground therefore failed.
7. The Council had no power to issue the replacement decision notice after the first permission had been issued. The second notice was accordingly quashed.

Permission to apply for judicial review was granted by the Court of Appeal after permission had been refused in the High Court. No citation for those procedural decisions is stated in the judgment.