Summary
A planning authority must identify the relevant development-plan policies, assess whether the proposal accords with the plan as a whole, and then consider whether material considerations justify any departure. That conclusion may be implied from a fair reading of the decision-making documents.
For heritage assets, the authority must address the statutory duties and relevant policy requirements, but concise reasons may suffice where the assessment is clear and intelligible. Whether a proposal falls within an environmental-impact threshold may be a question of fact and planning judgment, challengeable on conventional public-law grounds where no legal construction issue arises. Technical matters such as noise assessment and enforceability of planning conditions are ordinarily matters for the planning authority’s judgment.
Factual background
Lensbury Ltd and Pinenorth Properties Ltd brought separate judicial-review claims challenging Richmond-Upon-Thames London Borough Council’s grant of planning permission for a three-turbine hydroelectric facility at Teddington Weir.
The challenges concerned compliance with the development plan, assessment of listed buildings and conservation-area interests, environmental-impact-assessment screening, procedural fairness, and the precision and enforceability of a noise condition. Lang J had granted permission and ordered the claims to be heard together. The central issues were whether the Council had lawfully assessed the proposal and whether its decision was legally irrational, procedurally unfair or inadequately reasoned.
Held
- Disposition. Both claims were dismissed.
- Development plan. Section 38(6) of the Planning and Compulsory Purchase Act 2004 required the Council to consider the relevant development-plan policies and the proposal’s conformity with the plan as a whole. The officers’ report identified and assessed the principal policies concerning Metropolitan Open Land, the river corridor, conservation areas, heritage assets and visual impact. The omission of an express reference to section 38(6), or to one policy, did not establish unlawfulness where the report showed that the correct planning issues had been addressed and the overall conclusion could fairly be inferred.
- Heritage assets. The statutory duties under sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, together with the relevant NPPF provisions, were properly engaged. The Council’s conclusion that the development would not cause harmful impact to the conservation area or listed footbridges was a planning judgment supported by comprehensible reasons. Since the Council found no harmful impact, it was unnecessary to undertake a balancing exercise in relation to less-than-substantial harm.
- EIA screening. The question whether the hydroelectric installation was designed to produce more than 0.5 megawatts under Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 was, on the evidence, a question of fact and judgment. The Council had asked itself the correct question and was entitled to rely on the stated maximum output of 492 kilowatts. Its conclusion was not Wednesbury unreasonable. No separate issue of legal construction arose.
- Procedure and noise. The Council had regard to later representations and was entitled to conclude that they raised no significant new non-noise issues. The change in committee membership did not invalidate the decision because the decision was that of the Council and the new members had access to the material documentation. Technical disputes about background noise and the operation of condition NSO1 were matters of planning judgment. On a fair reading, the condition identified representative locations and did not exclude assessment at other relevant locations; it was sufficiently precise and enforceable.
The court’s approach to earlier authorities
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Appellate history
First-instance judicial review claims. The judgment states that Lang J granted permission in both claims and directed that they be heard together; no citation for that interlocutory decision is provided.
Appeal route
- This judgment [2016] EWHC 980 (Admin) High Court (Administrative Court)
- Appealed to[2016] EWCA Civ 814Outcomeappeal allowed; planning permission quashed
Key cases cited
21 authorities cited.
- Tesco Stores Limited v Dundee City Council (Scotland) [2012] UKSC 13
- South Bucks District Council and another (Respondents) v. Porter (FC) (Appellant) [2004] UKHL 33
- City of Edinburgh Council v Secretary of State for Scotland (Revival Properties Ltd v City of Edinburgh Council, Secretary of State for Scotland v Revival Properties Ltd) [1997] 1 WLR 1447
- Suffolk Coastal District Council v Hopkins Homes Ltd & Anor [2016] EWCA Civ 168
- Hampton Bishop Parish Council, R (On the Application Of) v Herefordshire Council [2014] EWCA Civ 878
- Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council & Ors [2014] EWCA Civ 137
- Horner, R (on the application of) v Lancashire County Council & Anor [2007] EWCA Civ 784
- R (Kides) v South Cambridgeshire District Council [2003] 1 P & CR 19
- R (Goodman) v London Borough of Lewisham [2003] EnvLR 28
- Kverndal v London Borough of Hounslow [2015] EWHC 3084 (Admin)
- Nicholson, R (on the application of) v Allerdale Borough Council & Ors [2015] EWHC 2510 (Admin)
- Gill v The Secretary of State for Communities and Local Government & Anor [2015] EWHC 2660 (Admin)
- Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government & Anor [2015] EWHC 2489 (Admin)
- Mordue v Secretary of State for Communities And Local Government & Ors [2015] EWHC 539 (Admin)
- Dartford BC v Secretary of State for Communities and Local Government [2014] EWHC 2636 (Admin)
- R v Mendip District Council, ex p Fabre [2000] 80 P & CR 500
- Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council 1997 WL 1106106
- South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83
- Save Britain’s Heritage v Number 1 Poultry Ltd (Save Britain's Heritage v Secretary of State for the Environment) [1991] 1 WLR 153
- Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303
- Abraham v Wallonia
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Cases citing this case
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