Ecotricity Next Generation Ltd v Secretary of State for Communities and Local Government & Anor

On a challenge under Town and Country Planning Act 1990, the court may review whether an inspector understood and addressed the principal controversial issues, but may not reconsider planning judgment or the weight given to material considerations. An inspector must properly inform herself of relevant information. A mistake of established, objectively verifiable fact may amount to an error of law where it was not caused by the claimant, materially influenced the reasoning and caused unfairness. The statutory duty to give considerable importance and weight to preserving the setting of listed buildings must also be applied on the correct factual basis.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s refusal of planning permission for a single wind turbine and associated works in Devon. The challenge concerned the inspector’s treatment of landscape assessments and her assessment of the effect on heritage assets, particularly a Grade I listed church. The central issues were whether the inspector had misunderstood relevant planning guidance, failed to give adequate reasons, or proceeded on a material mistake of fact concerning views of the church and turbine.

1. Ground 1 failed. The inspector had understood the landscape character and sensitivity assessments. Read as a whole, the decision showed that she recognised the potential acceptability of a single large turbine in the area, but focused lawfully on the actual landscape effect of the proposal. She was not required to set out every circumstance in which such a turbine might be acceptable. Her reasons were adequate.
2. The court could not review the planning merits or substitute its own view of the weight to be given to landscape harm, renewable energy benefits or other material considerations. Policy interpretation was a matter for the court, but policy application and planning judgment were for the decision-maker.
3. Ground 2 succeeded. The inspector was entitled, following her site visit, to find that the village and surrounding countryside contributed to the setting of St Peter’s Church. However, whether the church tower and turbine would be seen in the same views was a theoretical and objectively verifiable matter, not merely planning judgment. The unchallenged evidence showed that the finding was mistaken.
4. The mistake materially informed the conclusion that the turbine would be apparent in the church’s setting and contributed substantially to the finding of minor negative impact on listed buildings. The conditions identified in E v Secretary of State for the Home Department [2004] QB 1044 were therefore satisfied. Alternatively, the inspector failed to take reasonable steps to inform herself of relevant information, applying the principle in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014.
5. Under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, the possibility that the overall balance would have differed on the correct factual basis was sufficient to establish materiality. The reasoning did not identify which heritage assets suffered the stated minor negative impact. The application was allowed and the decision was quashed.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The inspector’s decision refusing planning permission was quashed.