RWE Npower Renewables Ltd, R (on the application of) v Ecotricity (Next Generation) Ltd

A supplementary planning document may provide detailed environmental, social or design objectives relevant to development already encouraged by the development plan. It becomes a development plan document only where its new policy statements fall within the categories prescribed by the relevant regulations.

Whether a supplementary planning document conflicts with the adopted development plan involves a planning judgment for the local planning authority, reviewable on rationality grounds. A document cannot, however, alter a clear development-plan requirement while purporting merely to supplement it. National guidance requiring a positive approach to renewable energy does not prevent criteria-based policies that grant planning permission when specified separation distances are met, provided they do not require refusal solely because those distances are not met.

RWE Npower Renewables Ltd sought judicial review of Milton Keynes Borough Council’s adoption of a Wind Turbines Supplementary Planning Document. The document introduced an emerging policy for wind turbines, including minimum separation distances from residential premises that increased with turbine height.

The claimant argued that the document should have been adopted as a development plan document, that it conflicted with the adopted local plan, that the Council had failed to have regard to national renewable-energy guidance, and that the Council had unlawfully avoided independent examination. The central issues were the document’s statutory classification, its compatibility with the adopted development plan, and the court’s role in reviewing those matters.

1. Claim succeeded in part. The Wind SPD was lawfully capable of being adopted as a supplementary planning document. Its new provisions concerned environmental, social and design objectives relevant to wind-turbine development already encouraged by the adopted plan. They did not constitute new statements under regulation 5(1)(a)(i) or development-management policies under regulation 5(1)(a)(iv) of the Town and Country Planning (Local Planning) (England) Regulations 2012.
2. The classification of a document depends on the substance of its new policy statements. A document may be a local development document even if it is not one of the descriptions prescribed for mandatory preparation, but a local planning authority cannot adopt an unprescribed document as a development plan document.
3. Whether policies conflict with the adopted development plan is a planning judgment for the local planning authority, subject to review on ordinary public-law rationality grounds. The court must first construe the policies objectively, but it does not itself determine the ultimate comparison between them.
4. Policy D5 of the adopted local plan required a wind turbine to be at least 350 metres from a dwelling if it was to benefit from the policy that planning permission would be granted. In that context, “should” meant “must”. The Wind SPD’s more demanding distances for turbines over 25 metres effectively amended that requirement. They were therefore in conflict with the adopted development plan, contrary to regulation 8(3) of the 2012 Regulations.
5. The Council had properly had regard to national guidance. That guidance did not prohibit local criteria providing that permission would be granted where a minimum distance was met, although it did not support mandatory refusal based solely on failure to meet such a distance. The adequacy of the distances and the positivity of the policy were matters of planning judgment, and the claimant had not challenged the rationality of the policy’s justification.
6. The claim therefore succeeded only on the conflict ground.