McDonald, R (on the application of) v Carmarthenshire County Council

In a judicial review alleging procedural unfairness, a technical procedural breach is insufficient without substantial or material prejudice. The claimant must identify the prejudice said to have resulted. An accurate officer’s report will ordinarily defeat an argument that committee members were seriously misled, absent reliable evidence to the contrary. Planning advice must be read sensibly and applied in context. A planning condition may lawfully reserve power to restrict the operating hours of a wind turbine, including requiring it to be switched off at night, where that addresses ecological concerns and the need for further surveys.

The claimant sought permission to challenge the defendant’s grant of planning permission for a wind turbine. He alleged that the council’s website had failed to notify him that the application would go before the planning committee, thereby preventing him from speaking, and that the council had unlawfully dealt with potential effects on bats.

The court considered the alleged website failure, the asserted prejudice, the accuracy of the officer’s report, the effect of condition 15, and the application of Planning Policy Wales, TAN 5 and the Habitats Regulations. The application was a renewed application for permission to apply for judicial review.

1. The renewed application for permission to apply for judicial review was refused. Both proposed grounds were unarguable.

2. On the alleged failure to publish information on the council’s website, disputes of fact are ordinarily approached on the basis that the defendant’s account is accepted unless intrinsically unreliable, as illustrated by R v Camden London Borough Council Ex Parte Cran. The court did not need finally to resolve that factual dispute.

3. The essential question in an unfairness challenge is whether the claimant identifies significant prejudice. As stated in George v Secretary of State for the Environment (1979) 77 LGR 689,695 and reaffirmed in Hopkins v Secretary of State [2014] PTSR 1145, unfairness involves substantial prejudice, and the material prejudice should be identified at the outset.

4. The claimant’s only asserted prejudice was the inability to address the committee and raise a point about nearby dwellings. The officer’s report accurately set out the number and proximity of residential properties. The claimant accepted that this was not a case in which the report was seriously misleading within the approach in Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997). There was also no reliable basis for concluding that the members had been seriously misled.

5. The bat-related challenge also failed. Condition 15 plainly empowered the council to impose restrictions on the turbine’s operating hours, including a requirement that it be switched off at night. That was compatible with the officer’s advice and with the possibility of further surveys. The ecological evidence indicated low bat activity, while further survey work was sought to confirm whether that remained so during other seasons.

6. Planning Policy Wales and TAN 5 had to be read sensibly and applied in context. The council had not arguably erred in law by granting permission subject to the identified curtailment condition. The defendant’s previously ordered costs of £2,501 remained payable.

This was a renewed application for permission to apply for judicial review. No separate lower-court judgment is stated in the judgment.