Hubert v Carmarthenshire County Council

In judicial review of planning permission, a condition cannot permit material changes to the scale or impact of development outside the statutory planning process. A broad variation clause attached to a condition central to the permission is unlawful and must be severed.

Planning conditions and officers’ reports must be read benevolently, in context and as a whole. An environmental impact screening opinion asks whether significant environmental effects are likely; it does not require a detailed assessment of every planning factor. A screening error corrected through later lawful decision-making does not ordinarily justify a declaration.

The claimant challenged two planning permissions granted by Carmarthenshire County Council for a single wind turbine. The challenges concerned the legality of a variation clause in a condition controlling the turbine’s dimensions, conditions regulating construction access, the environmental impact screening opinions, interpretation of development-plan policy UT6, ownership of land near the proposed access route, and ecological assessment of a diverted route.

The first permission was challenged on four grounds. A second permission was granted during the litigation and was separately challenged on two grounds. The court therefore had to determine whether either permission was unlawful and whether the second decision required further ecological inquiry.

1. First permission—condition 21. The tailpiece permitting the local planning authority to approve variations to the turbine’s dimensions was unlawful. The turbine’s height and dimensions were central to the subject matter and environmental effects of the permission. The words used were broad enough to permit material changes in scale and impact outside the statutory process. Applying R (Midcounties Co-operative Ltd) v Wyre Forest DC, [2009] EWHC 964 (Admin), the tailpiece was severed from condition 21.
2. Construction conditions. Condition 24 was capable of a lawful and sensible construction. Read benevolently and in the context of the permission as a whole, the words requiring compliance before commencement applied to all the specified requirements. The evidence showed that the necessary works could be undertaken within the highway boundary. The challenge to condition 25 was unavailable because that condition had not been challenged. The approach in Hulme v Secretary of State for Communities and Local Government, [2011] EWCA Civ 638, was applied.
3. Environmental impact screening. The correct question was whether significant environmental effects were likely. A screening opinion need not involve a detailed assessment of factors relevant to the eventual planning decision. Read fairly and for its knowledgeable planning readership, the first screening opinion applied the correct test, despite its imprecise wording. The later lawful screening opinion meant that no declaration was required in respect of the earlier decision. The approach in R (Bateman) v South Cambridgeshire District Council, [2011] EWCA Civ 157, and R (Plant) v Pembrokeshire County Council, [2014] EWHC 1040 (Admin), was followed.
4. Policy UT6. The policy required consideration of demonstrable harm to residential amenity. The officers’ report, read as a whole, did communicate that test. References to the Lavender appeal decision were discretionary and did not replace the policy test. The planning committee was not misled.
5. Second permission. The evidence supported the conclusion that construction access would not affect the third party’s land at POI 14. The Council had adequate professional ecological information and was not under a further duty of inquiry before granting the second permission. Fresh evidence produced after the decision was inadmissible in the circumstances.
6. The claim concerning the first permission was dismissed except for the severance of the tailpiece to condition 21. The grounds challenging the second permission were not arguable and were dismissed.

The judgment records that permission to bring the first judicial review was granted on two grounds by Gilbart J in [2015] EWHC 741 (Admin), with two additional grounds permitted on appeal by Sullivan LJ. The second judicial review was refused permission initially, but the matter was relisted as a rolled-up hearing alongside the first judicial review. This court determined both challenges.