Holder v Gedling Borough Council & Ors

When deciding whether inappropriate development in the Green Belt is justified by very special circumstances, a planning authority must consider every matter capable of bearing legitimately on the balance. Depending on the proposal, these may include its precedent value, less harmful alternatives on the same site, and the proposed installation’s size, efficiency and likely benefit.

An officer’s report is read as a reasonable planning decision-maker would understand it. Advice categorising potentially material matters as legally immaterial may invalidate the permission. Relief should ordinarily follow where there is a real possibility that proper consideration could have produced a different result.

A local planning authority granted permission for a 66-metre wind turbine on farmland within the Nottingham Green Belt. The proposed turbine constituted inappropriate development and therefore required very special circumstances. The committee’s officer had categorised precedent, alternative means of producing renewable energy, and the turbine’s output and efficiency as non-material planning issues.

A local objector sought judicial review. Kenneth Parker J dismissed the claim in [2013] EWHC 1611 (Admin). Permission to appeal was subsequently granted in [2013] EWCA Civ 1719. The principal issues were whether the officer’s advice misstated the scope of material planning considerations and, if so, whether the court should quash the permission after the landowners had purchased and erected the turbine.

1. Appeal allowed unanimously and planning permission quashed. Maurice Kay LJ gave the judgment, with which Patten LJ and Sir Stanley Burnton agreed.

2. Under section 70(2) of the Town and Country Planning Act 1990, a planning authority must have regard to the development plan, so far as material, and to any other material considerations. A matter not expressly designated by statute is material when it is capable of bearing legitimately on the planning decision.

3. An officer’s advice must be construed as a reasonable planning decision-maker would understand it. The committee would have understood the report’s list of “Non-material Planning Issues” as stating that the listed matters were incapable of being material, rather than that they happened to deserve no weight on the facts.

4. The risk of creating a precedent was potentially material. Permission based on generic renewable-energy benefits could have real precedent value for comparable Green Belt proposals. Advice that precedent was incapable of being material was therefore legally erroneous and itself vitiated the decision.

5. Possible alternatives on the same farm were also material. There was extant permission for two substantially smaller turbines capable of meeting the farm’s needs. The committee had to compare the benefits and impacts of that alternative with the larger turbine when deciding whether very special circumstances existed. Policy against requiring a sequential search for alternative sites did not make this on-site alternative immaterial.

6. The proposed turbine’s size, efficiency, output and ability to meet need were relevant to whether its benefits clearly outweighed the harm inherent in inappropriate Green Belt development. Renewable-energy policy prevented refusal solely because output was small. It did not require a large, inefficient installation to be treated as equivalent to a smaller, efficient one. The contrary advice was legally erroneous.

7. The court could not conclude that the errors made no difference. Precedent and efficiency were not trivial, the committee had divided ten votes to seven, and a different result was a real possibility. Nor were there exceptional circumstances warranting refusal of relief. The landowners erected the turbine while aware of the appeal and assumed that risk. Planning permission was a public decision made in discharge of statutory obligations, not merely a private benefit.

1. Court of Appeal (Civil Division): In [2014] EWCA Civ 599, unanimously allowed the appeal and quashed the planning permission.
2. Court of Appeal (Civil Division): In [2013] EWCA Civ 1719, granted permission to appeal following an oral renewal hearing.
3. High Court, Administrative Court: Kenneth Parker J dismissed the application for judicial review in [2013] EWHC 1611 (Admin).