Stevens (t/a KCS Asset Management) v Blaenau Gwent County Borough Council & Anor

A planning permission must be construed as a whole, including its conditions and the reasons for them. A reasonable reader may understand permission to authorise a development while a condition removes a particular element of it. A local planning authority may address a low-risk ecological uncertainty by condition where the evidence permits that approach, or may remove the uncertain element from the permission while leaving an alternative means of implementing the development. A government strategy is not necessarily a material planning consideration merely because it concerns the subject matter of the application. The statutory reference in an older general development order may be construed as referring to replacement legislation where the Interpretation Act 1978 and the relevant European obligations require that result.

The claimant sought judicial review of planning permission granted for a photovoltaic solar park. The permission described excavation of a southern cable trench but condition 20 excluded the southern cabling route from the permission because ecological effects had not been satisfactorily addressed. The claimant challenged the clarity and lawfulness of the permission, the treatment of ecological information, the failure to consider the UK Solar Photovoltaic Strategy Part 2, and the operation in Wales of the Town and Country Planning (General Permitted Development) Order 1995.

The central issues were whether the permission lawfully excluded the southern route, whether ecological matters and the solar strategy were material considerations which had been overlooked, and whether article 3(1) of the 1995 Order contained a legislative gap.

1. Construction of permission. The permission was clear when read with its conditions. Condition 20 expressly removed the southern cabling route from the permission, and its stated reason explained why. Applying the reasonable-reader approach, the permission authorised the photovoltaic park but not the southern route. Grounds one and two therefore failed.
2. The treatment of the two routes was not inconsistent. The existing forestry track already existed and required no consent for its construction. The southern route required construction and was therefore capable of being removed from the permission. The distribution network operator could later select the appropriate connection route under a separate planning process or its permitted development rights.
3. Material considerations. The authority had considered the ecological report. The Council Ecologist regarded the risk to protected species and the nearby SINC as low and considered that mitigation, management, construction controls and later survey information could address the effects. The authority also removed the southern route from the permission, thereby eliminating the relevant uncertainty. The ecological ground failed.
4. The UK Solar PV Strategy Part 2 was not a planning policy document and added nothing material to the applicable planning guidance. It supported well-sited and well-designed solar development and did not require a preference for rooftop or brownfield development capable of tipping the planning balance. It was not a material consideration in this case.
5. Permitted development and habitats. Article 3(1) of the Town and Country Planning (General Permitted Development) Order 1995 was not rendered ineffective in Wales by its reference to regulations 60 to 63 of the 1994 regulations. Sections 20(2) and 23(1) of the Interpretation Act 1978 permitted the reference to be read with the replacement regulations 73 to 76 of the 2010 regulations. In any event, domestic law had to be construed consistently with the Habitats Directive. There was no legislative gap.
6. The claim failed on all pleaded grounds. Permission would have been granted to bring the additional point concerning the legality of the whole Welsh GPDO, but substantive judicial review was refused. The late additional challenge was refused permission.

First-instance judicial review in the Administrative Court. The claim was dismissed on all grounds.