Corbett, R (On the Application Of) v Cornwall Council

A planning authority need not refer an application back to its committee before issuing permission following an earlier resolution where there has been no material change in the applicable policy or other circumstances. The duty to have regard to material considerations is satisfied if the authority has considered them with the application in mind. A development plan must be identified, interpreted and weighed, but the decision-maker need not follow a fixed verbal formula. Under the environmental impact assessment regime, “any other information” means substantive information supplied by the applicant to complete the environmental statement. It does not include responses to consultees or documents generated by third parties or the authority. A failure to provide a formal summary of reasons will not justify quashing where the reasons are clear from the officer’s report and no practical prejudice is shown.

The claimant sought judicial review of Cornwall Council’s decision to grant conditional planning permission for five wind turbines and associated infrastructure at Higher Denzell Farm. The Council’s committee resolved to grant permission in September 2011, but the permission was issued in April 2012 after publication of the National Planning Policy Framework and revocation of several earlier policy statements.

The claimant alleged failures concerning material considerations, summary reasons, the development plan, disclosure and publication of environmental information, and the protection of bats. The central issues were whether the later policy framework required reconsideration by the committee, whether the statutory reasoning and publication requirements had been met, and whether the Council had lawfully addressed ecological mitigation.

1. The claim was dismissed. The planning officer was entitled to act on the committee’s earlier resolution. Under R (Kides) v South Cambridgeshire District Council [2002] 1 P & C.R. 19, referral back is required where a new material consideration arises which might rationally affect the decision. The officer may proceed only where the authority is aware of the factor, has considered it with the application in mind, and would reach the same decision on reconsideration. The question whether a change is material is objective.
2. There was no material change between the previous national planning policy and the Framework. Both promoted sustainable development and appropriate renewable energy development while requiring adverse landscape and environmental effects to be addressed. The Framework also preserved the relevant approach in the Companion Guide to PPS22 and adopted the assessment approach in EN-3 read with EN-1. The Draft Framework did not alter that conclusion. The reasoning in R (Hinds) v Blackpool Borough Council [2012] J.P.L. 1365 supported treating materiality as the decisive issue.
3. The summary reasons complied with article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2012. They explained the identified need for renewable energy and why the landscape and visual effects did not make the proposal unacceptable. The relevant development plan policies were sufficiently summarised. Even if there had been a breach, quashing would have been disproportionate because the full reasoning appeared in the officer’s report and the provision had been revoked. The approach in R (Siraj) v Kirklees Metropolitan Borough Council [2011] J.P.L. 571 was applicable.
4. The Council had regard to the development plan and section 38(6) of the Planning and Compulsory Purchase Act 2004. It identified the relevant policies, assessed the landscape effects and renewable-energy benefits, and concluded either that the proposal accorded with the plan or that other material considerations outweighed any conflict. The assessment required by City of Edinburgh v Secretary of State for Scotland [1997] 1 W.L.R. 1447 had been undertaken.
5. Regulation 19 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 applied to further information and voluntary information supplied to complete the environmental statement. It did not apply to correspondence responding to concerns, third-party documents or material generated by the Council. The Council therefore complied with regulation 19. The reasoning in Finn-Kelcey v Milton Keynes Borough Council [2009] Env. L.R. 17 did not require a different interpretation.
6. The Council was not misled about Natural England’s or the Cornwall Wildlife Trust’s views on bats. Whether turbine feathering was necessary was a planning judgment, and the Council was entitled to rely on Natural England’s view that the proposed mitigation was adequate. The grant of permission was lawful.