Lancashire, R (on the application of) v Northumberland County Council & Anor

In a planning challenge, the court determines the meaning of disputed planning policy wording, but leaves evaluative planning judgments to the planning authority subject to judicial review. A small turbine intended principally to supply an individual farmstead does not become a development designed to connect to the national grid merely because surplus electricity may be exported.

A consideration is material only if it is capable of influencing the decision. A planning report need not repeat information that is already adequately before the decision-maker. Where heritage harm is alleged, the decision-maker must be able to identify the harm and assess its weight. Minimal or purely visual effects may have little or no material consequence. Planning conditions are lawful if their operation is sufficiently clear and enforceable.

The claimant, a local resident, sought judicial review of Northumberland County Council’s decision to grant planning permission for a single small wind turbine near Wooler. The challenge concerned the applicable local planning policy, the treatment of a landscape sensitivity study, the adequacy and enforceability of noise conditions, and the assessment of possible effects on scheduled ancient monuments and other heritage assets.

The council and the interested party defended the permission. The court also considered, but did not need to determine, whether the claim had been brought promptly. The central issues were whether the planning officer’s report misdirected the committee or omitted material considerations, and whether the permission was otherwise unlawful.

1. Claim dismissed. The court rejected all four grounds of challenge.
2. Following Tesco Stores v Dundee City Council [2012] UKSC 13 at [17]–[19], the true meaning of disputed planning policy is a matter for the court. Planning policy is not construed as though it were a statute or contract where its language calls for planning judgment. The court concluded that Policies C26 and C27, read in context and in light of their purpose, distinguished larger commercial supply from small-scale supply to individual premises. The turbine was principally designed to supply the farmstead. The possibility of exporting surplus electricity did not bring it within Policy C26.
3. The noise conditions were lawful and enforceable. They responded to the possibility that deterioration or unforeseen circumstances might produce excessive noise. The conditions required a suitably approved consultant’s report following a credible complaint, and permitted enforcement and remedial action where a breach was established.
4. Applying the principles summarised in R (ota Watson) v London Borough of Richmond upon Thames [2013] EWCA Civ 513 at [25]–[28], the landscape sensitivity study was not a material consideration requiring separate treatment. The report already addressed the sensitivity and characteristics of the landscape, relevant visual material, local objections and the precise location of the turbine. The study was not statutory policy and added little to the information before the committee.
5. The heritage assessment did not unlawfully apply a substantial-harm threshold. Any possible harm to Humbleton Hill was not intelligible on the evidence. Any residual harm to Green Castle arising from visibility was minimal, given the existing intrusion nearby. In any event, the committee had sufficient information to balance any limited harm against the renewable-energy benefits, and the report accurately reflected the consultees’ views.
6. The court considered that, had the grounds succeeded, the evidence of prejudice would not have justified refusing relief for delay. That issue did not arise because the claim failed on its merits. The application was dismissed.

The judgment is a first-instance decision of the High Court (Administrative Court). The claimant obtained permission to apply for judicial review, but the substantive claim was dismissed.