Joicey, R (on the Application of) v Northumberland County Council

A public authority subject to a statutory duty to disclose information relevant to democratic decision-making must publish it in sufficient time for the public to digest it and make intelligent representations. Timeliness depends on the information’s complexity, its intended audience and its importance to the decision.

Where that duty is breached, the decision should be quashed unless the authority demonstrates that the outcome would inevitably have been the same after timely disclosure. Under wind-turbine noise guidance, an occupier is financially involved only where the occupier receives a substantial financial benefit. Ownership of the property by the turbine operator does not itself establish the tenant’s financial involvement.

The claimant sought judicial review of the Council’s grant of planning permission for a wind turbine. A technical noise assessment, central to the application, was omitted from the publicly accessible material until approximately 36 hours before the planning committee met. The Council had also failed to list it as a background paper and could not produce it when the claimant inspected the planning file.

The claim concerned the statutory right to inspect council documents, a legitimate expectation arising from the Council’s statement of community involvement, the meaning of financial involvement under wind-turbine noise guidance, cumulative noise assessment, the validity of a noise condition and consideration of the turbine’s likely energy output.

1. The planning permission was quashed. The Council breached sections 100B, 100D and 100E of the Local Government Act 1972. The noise assessment was a background paper, but it was omitted from the officer’s list and was not practically available for inspection. A document is not open to inspection where the authority’s filing arrangements prevent its production within a reasonably practicable time.

2. The Council’s published statement of community involvement contained a continuing promise to place supporting planning documents on its website. That promise created a legitimate expectation. The assessment’s late upload, backdated to an earlier date, breached that expectation.

3. Disclosure duties directed to democratic participation require timely disclosure. Information must be available in sufficient time for members of the public to understand it and make intelligent representations. Relevant considerations include the material’s technical complexity, the sophistication of its audience and its importance to the decision. A 74-page technical noise assessment released only about 36 hours before the meeting was not disclosed in time, particularly because noise went to the heart of the decision.

4. Following R (Smith) v North Eastern Derbyshire Care Trust [2006] EWCA Civ 1291, the appropriate remedial test was inevitability. The claimant was entitled to relief unless the Council demonstrated that its decision would inevitably have been the same after timely disclosure. The Council failed to do so. Expert criticism and fuller representations might have led officers or the unwhipped political committee to reconsider. A later consultation limited to the wording of noise conditions did not cure the earlier failure to permit representations on whether permission should be granted.

5. Under ETSU wind-turbine noise guidance, financial involvement requires a substantial financial benefit to the resident or occupier. Support for a turbine is irrelevant. A direct payment, reduced rent or preferential electricity might qualify, but a modest or merely compensatory benefit will not ordinarily suffice. The Council was entitled to apply the higher limits to the owner-occupied and holiday-let properties at Barmoor. It erred, however, in treating the tenants at Brackenside as financially involved merely because their landlord owned the properties and benefited from the turbine.

6. The challenges concerning cumulative noise methodology, wind direction and the complexity of the noise condition failed. Those matters fell within reasonable planning judgment, and complexity alone did not invalidate a condition fairly and reasonably related to the development. The energy-output issue was not material in the particular circumstances.

• High Court (Administrative Court): The court quashed the planning permission.
• Permission stage: Collins J granted permission for judicial review on all grounds following an oral hearing.
• Earlier permissions: Two earlier grants of planning permission for the same development had been challenged and set aside by court-approved consent orders after the Council and developer submitted to judgment.