Newark & Sherwood District Council & Anor v Secretary of State for Communities and Local Government & Anor

A section 288 challenge is concerned with the legality of a planning decision, not a rehearing of planning merits. The court must read the decision broadly and will intervene only for legal error, irrationality, failure to consider a material matter, or inadequate reasons. A planning inspector may treat even a small renewable-energy output as a positive benefit, while deciding what weight it merits. Where a permission and condition contain an obvious inconsistency, the court may construe the permission in context and correct the wording if the intended correction is clear. A condition cannot fundamentally alter the development authorised. On the facts, the inspector properly assessed energy generation and noise, and the reference to a three-bladed turbine was construed as referring to a two-bladed turbine.

The claimants applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision granting permission for a single wind turbine at Hill Farm, Epperstone. The District Council had refused permission, but the Second Defendant’s appeal under section 78 was allowed.

The claimants pursued three grounds: the inspector allegedly failed to assess the amount of electricity generated; failed to address noise limits at financially interested residential properties or impose an adequate noise condition; and granted permission for a three-bladed turbine although the application and assessment concerned a two-bladed turbine.

1. Ground (i) dismissed. The inspector read PPS 22 as requiring renewable-energy benefits, whatever their scale, to be weighed positively. Her finding that the turbine would generate a minimum of 481 MW was a finding on the disputed amount, supported by the Garrad Hassan report. She treated that output as a small but valuable environmental benefit contributing to the very special circumstances required in the Green Belt. She also concluded that a lower output would not have altered the result. The reasoning had to be read as a whole, not by focusing on the final sentence of paragraph 11.
2. Ground (ii) dismissed. The inspector’s references to residential properties and dwellings in the vicinity included Hill Farm Cottage, although she concentrated on Cottage Farm as the closest property without a financial interest. The PDA report’s calculated exceedance at Hill Farm Cottage was qualified by its express conclusion that the conservative methodology probably overstated noise and that actual levels were likely to be below the ETSU limits. The inspector was therefore entitled to conclude that no material residential harm arose. Her conclusion that a noise condition was unnecessary was a planning judgment which was not irrational. Although an inspector has power to consider or seek a properly drafted condition, there was no need to do so where the limits were not exceeded.
3. Ground (v) dismissed. The permission expressly incorporated the application, including the drawings. Those drawings described a two-bladed turbine. Condition 5 nevertheless referred to a three-bladed turbine, creating a clear inconsistency. Extraneous application and assessment materials could be considered to resolve that inconsistency. It was impermissible to construe the condition as fundamentally altering the development or authorising an unassessed three-bladed turbine. The clear intended correction was to substitute “two-bladed” for “three-bladed”. The separate reference to “wind turbines” was corrected from the plural to the singular. Severance was unnecessary.
4. All three grounds failed. The section 288 application to annul the inspector’s decision was dismissed. It was unnecessary to determine whether two grounds were also barred because they had not been raised before the inspector.

Not stated in the judgment.