Goring-On-Thames Parish Council v South Oxfordshire District Council & Anor

Judicial review of a planning permission involving development in Areas of Outstanding Natural Beauty and conservation areas requires the court to distinguish irrationality from a reasons challenge. A planning authority may reach different conclusions about landscape impact on an AONB and heritage impact on a conservation area, provided its planning judgment is rational. However, the authority must give considerable importance and weight to harm to a conservation area under section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990. A failure to obtain a required environmental screening opinion is not necessarily remedied by later consideration of environmental matters, but relief may be refused where it is highly likely that the outcome would not have been substantially different.

Goring-on-Thames Parish Council sought judicial review of South Oxfordshire District Council’s decision to grant planning permission for a 107KW hydropower scheme at Goring Weir. The site was within two conservation areas and the Chilterns and North Wessex Downs Areas of Outstanding Natural Beauty.

The challenge concerned alleged irrationality in the assessment of landscape and noise impacts, failure to comply with duties concerning listed buildings and conservation areas, and failure to adopt an environmental screening opinion. The Environment Agency claim was discontinued by consent. The central questions were whether the Council’s decision was unlawful and, if so, whether relief should be refused because the outcome would probably have been the same.

1. The claim for judicial review was refused. The Council’s conclusion that the scheme caused no harm to the AONBs was not Wednesbury unreasonable. There could be some impact on the conservation area without that conclusion being irrational, even though cultural heritage may be relevant to AONB assessment.

2. The AONB challenge was properly characterised as a rationality challenge. The authorities on substantial reasons for permitting harmful development in an AONB concerned a reasons challenge, not the rationality of the planning judgment. The Council had applied the relevant policies, and its assessment of visual and noise impacts was open to it.

3. Tranquillity is capable of being a special quality of an AONB. Nevertheless, the Council was entitled to consider noise under its residential-amenity policy. The management plans were not statutory planning policies, and no material representation had identified loss of tranquillity as an issue requiring separate consideration.

4. The duty to investigate potential effects on listed buildings under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 was engaged only when the issue was raised by someone within or outside the Council. On the facts, the Council was entitled to treat concerns about the Swan Hotel as having been addressed and did not need to identify every listed building.

5. The Council had failed to give the conservation-area harm the considerable importance and weight required by section 72. The officer’s report treated the less-than-substantial harm as outweighed by renewable-energy benefits, without demonstrating that special priority had been given to conservation.

6. Despite that breach, section 31(2A) of the Senior Courts Act 1981 required refusal of relief. It was highly likely that the outcome would not have been substantially different, given the conservation officers’ assessment of minor harm and the weight of the renewable-energy benefits.

7. A screening opinion was required under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 because the hydroelectric installation was development in a sensitive area, notwithstanding its output below the stated threshold. The Council had wrongly assumed that no screening was needed.

8. The failure to screen did not justify quashing the permission. The later report addressed the potentially relevant environmental matters, the claimant identified no new matter capable of producing a significant environmental effect, and there was no realistic prospect that a fresh decision would require an Environmental Statement. The judge indicated that the Council was probably not entitled to its costs.