Jonathan Mark Isherwood Carte, R (on the application of) v City and County of Swanse & Anor

Section 38(6) does not require a rigid two-stage decision-making process or a prescribed starting point. The essential requirement is that the planning authority gives proper regard and priority to the development plan before deciding whether material considerations indicate otherwise.

A planning condition may be lawful even where there is no positive evidence that it can be fulfilled. The authority must be satisfied that the condition serves a proper planning purpose, fairly and reasonably relates to the development, and is not irrational. Expert advice from a statutory undertaker may justify proceeding on the basis that the condition can be satisfied.

The claimant sought judicial review of the Council’s grant of planning permission for a wind farm and access track. He alleged that the planning officer’s report failed to apply the statutory development-plan presumption under section 38(6) of the Planning and Compulsory Purchase Act 2004, and that two conditions protecting watercourses, groundwater, soils and a major water main were unlawful because there was insufficient evidence that they could be fulfilled.

The Council and the interested party relied on the report’s consideration of the development plan, national renewable-energy policy and advice from the statutory water undertaker. The central issues were whether the statutory presumption required a particular decision-making structure and whether planning conditions required positive evidence of practical fulfilment.

1. Claim dismissed. The Council’s planning permission was lawful.
2. Section 38(6) of the Planning and Compulsory Purchase Act 2004, read with section 70(2) of the Town and Country Planning Act 1990, does not impose a rigid two-stage approach. The decision-maker may assemble and assess all relevant material together, provided proper regard is given to the statutory priority of the development plan. There is no prescribed starting point, and the authority need not always reach a concluded view on whether the proposal accords with the plan if any resulting presumption would in any event be outweighed by material considerations.
3. The report repeatedly addressed the UDP and Policy R11, recognised the conflict with the development plan and explained why renewable-energy policy outweighed that conflict. Its overall effect, rather than isolated wording or transcription errors, was decisive. The committee was adequately advised and entitled to rely on the report.
4. The conditions were subject to the principles in Newbury District Council of the Secretary of State for the Environment [1981] AC 578 HL: they served a planning purpose, fairly and reasonably related to the development, and were not so unreasonable that no reasonable planning authority could have imposed them.
5. There is no rule requiring positive evidence that a planning condition can be fulfilled before it may lawfully be imposed. Consistently with British Railways Board v. Secretary of State for the Environment [1994] JPL 32, a condition may be imposed where it is considered necessary and reasonable for proper planning purposes, even if its fulfilment has no reasonable prospect. The Council was entitled to rely on the expert position of the statutory water undertaker that adequate protective measures could be put in place.
6. The claimant’s environmental-impact-assessment argument was not a free-standing ground and therefore did not arise for decision. The court nevertheless observed that the case did not appear to involve an environmental statement so deficient as to fall outside the principles in R (Blewett) v. Derbyshire CC [2004] Env. L.R 29.