Lark Energy Ltd v Secretary of State for Communities And Local Government & Anor

A planning proposal must be assessed on its own merits, although an existing permission may be a material consideration. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the decision-maker must determine whether the proposal accords with the development plan read as a whole. Where relevant policies pull in different directions, the decision-maker must reconcile them, decide which approach governs, and give clear reasons. National policy supporting renewable energy does not determine the outcome or override environmental protections. Local objections must be considered, but their local origin does not automatically give them additional weight.

Lark Energy challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s dismissal of its appeal against refusal of planning permission for a temporary solar farm at Ellough Airfield. An inspector had recommended permission, but the Secretary of State dismissed the appeal, relying in part on the existence of a smaller permitted scheme and on landscape harm.

The challenge concerned the treatment of the fallback scheme, compliance with the development plan under section 38(6) of the Planning and Compulsory Purchase Act 2004, application of the NPPF, and the weight given to local objections.

1. Fallback scheme. The Secretary of State was entitled to treat the existing permission as a material consideration and compare the benefits and harm of the two schemes. That comparison did not displace the duty to assess the proposed scheme on its own planning merits. Read as a whole, the decision letter showed that he had undertaken that assessment and had balanced the proposal’s benefits against its harm. Ground 1 failed.
2. Development plan. Section 38(6) embodies the statutory presumption in favour of the development plan. The plan must be considered as a whole, even where policies support and oppose a proposal. Policy DM03 supported renewable-energy development where there were no significant adverse effects, whereas Policy DM27 adopted a more demanding approach to landscape harm. The proposal could therefore comply with DM03 while conflicting with DM27.
3. The Secretary of State’s reasoning implied compliance with DM03 and conflict with DM27, but he did not say whether the proposal accorded with the development plan as a whole. He failed to acknowledge the tension between the policies or explain whether DM03 or DM27 should prevail. That was a fundamental failure to perform the section 38(6) duty and to give intelligible reasons. Ground 2 succeeded.
4. The NPPF’s presumption in favour of sustainable development added no separate ground of challenge because the development plan was neither absent, silent nor out of date. The Secretary of State had regard in substance to the renewable-energy policies, and his failure expressly to cite paragraph 98 was not an error of law. Ground 3 failed.
5. The practice guidance required local views to be heard and considered. It did not require local objections to receive extra weight merely because they came from local residents. The Secretary of State was entitled to give weight to relevant local concerns, and his approach was not unreasonable in the Wednesbury sense. Ground 4 failed.
6. The Secretary of State’s decision was quashed and the appeal remitted to him for redetermination.

• Waveney District Council: planning permission was granted for a smaller solar farm on part of the site and refused for the larger proposal.
• Secretary of State for Communities and Local Government: after an inspector recommended allowing the appeal, the Secretary of State dismissed the appeal and refused permission on 16 October 2013.
• High Court (Administrative Court): the challenge succeeded on the section 38(6) ground. The decision was quashed and the appeal remitted.