Howell v Secretary of State for Communities And Local Government & Ors

A statutory duty to have regard to protected-landscape purposes requires the decision-maker to consider those purposes, but it does not create a presumption against development. Development outside a designated area may harm the protected landscape, yet that is a fact-and-degree question for planning judgment. The character and sensitivity of the affected part may properly inform that assessment.

Where development-plan policies pull in different directions, the decision-maker must determine which deserves greater weight. Specificity, recency and the policy’s provision for balancing harm against benefits are rational considerations. The court will read an inspector’s decision pragmatically and will not impose excessive legalism.

The appellant challenged an inspector’s grant of planning permission for a single wind turbine near, but outside, the Norfolk and Suffolk Broads. The challenge under section 288 of the Town and Country Planning Act 1990 followed Cranston J’s dismissal of the claim in [2014] EWHC 3627 (Admin).

The appeal concerned the inspector’s application of the statutory duty in section 17A of the Norfolk and Suffolk Broads Act 1988, his reconciliation of local and national planning policies, his assessment of the turbine’s energy benefits, and the adequacy of a noise condition.

1. Appeal dismissed. Cranston J had correctly rejected the challenge to the inspector’s decision.
2. Section 17A of the Norfolk and Suffolk Broads Act 1988 requires a relevant authority to have regard to the statutory purposes. It does not create a statutory presumption in favour of achieving those purposes or against development. A project outside the designated area may nevertheless damage the Broads’ natural beauty, but whether it does so is a fact-and-degree question and pre-eminently a matter of planning judgment.
3. The fact that part of the designated area is assessed as not having Broads character does not remove the duty. It may, however, be relevant to the weight and sensitivity attributed to visual effects, because the characteristics of the affected land help create the natural beauty of the Broads. The inspector’s conclusion that the turbine would not harm that natural beauty was rational.
4. Conflicting development-plan policies may arise. Under section 38(5) of the Planning and Compulsory Purchase Act 2004, the conflict is resolved in favour of the policy in the later document. More generally, it is for the planning decision-maker to determine which policy deserves greater weight. The inspector rationally preferred the more specific and recent renewable-energy policy, which permitted a balancing of benefits against significant adverse effects, over the more general policy and the impractical sequential test in the landscape policy.
5. The obligations in sections 19(2) and 20(5) of the Planning and Compulsory Purchase Act 2004 require regard to national policies but allow some divergence. The inspector was entitled to give little weight to the sequential test in the local policy because it conflicted with national policy, while giving weight to its landscape-character protection.
6. The inspector did not mistake the turbine’s rated capacity for its likely electricity output. The inquiry evidence made clear that actual output would be materially lower and uncertain; the reference to 2MW was used for comparison with smaller turbines.
7. The form and sufficiency of a planning condition addressing noise were matters of planning judgment. The agreed monitoring and enforcement condition could be regarded as sufficient, and it was unnecessary to impose a different condition pursuing the same objective.
8. Lord Justice Briggs and Lord Justice Richards agreed with Sir David Keene’s judgment.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the dismissal of the statutory challenge.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Cranston J dismissed the claim in [2014] EWHC 3627 (Admin).