Howell, R (On the Application Of) v Stamford Renewable Power Ltd & Ors

A breach of a planning condition does not necessarily prevent implementation of the permission or render the whole development unlawful. The court must interpret the condition objectively and ask whether it goes to the heart of the permission. Even where a breach is established, enforcement may be inappropriate where it would be irrational or an abuse of power. In environmental impact assessment cases, publicity requirements for a subsequent application arise only where the regulatory conditions for submitting an environmental statement are met. Any breach may in any event be immaterial where the claimant identifies no substantial prejudice and it is highly likely that compliance would not have produced a substantially different outcome.

The claimant sought judicial review of the Council’s decision to discharge conditions attached to planning permission for a wind turbine. He argued that aviation details had been submitted late, that archaeological conditions had not been complied with, and that the Council had failed to meet environmental publicity and consultation requirements.

The permission had been granted by a planning inspector and was subject to conditions concerning aviation notification, aviation lighting and archaeological investigation. The Council discharged or partially discharged those conditions. The central questions were whether the alleged breaches prevented lawful implementation of the permission and whether the environmental impact assessment regulations required further publicity and consultation.

1. Aviation condition. The late submission of aviation details was a breach of condition 3, but the condition was not a condition precedent going to the heart of the permission. Its purpose was to enable notice of tall structures to be given. The turbine’s height and location were already known, the Ministry of Defence had charted the turbine, and sufficient time had passed before any tall structure was erected. The breach therefore did not render the whole development unlawful or prevent implementation.
2. In any event, applying the approach in R (Hammerton) v London Underground and the Whitley principle, it would be irrational and an abuse of power to enforce against the developer for the late submission. The Council’s decision to discharge the condition therefore attracted no public law remedy.
3. Archaeological conditions. Properly interpreted in accordance with Trump International Golf Club Scotland Ltd v Scottish Ministers, the reference to a phased arrangement approved by the Council could encompass the Written Scheme of Investigation. That scheme involved more than a mere watching brief. The County Archaeologist had approved it, monitoring of the access route had revealed no significant archaeological assets, and no prejudice had been demonstrated.
4. Even if the archaeological conditions had been breached, the breach did not go to the heart of the permission. Enforcement would be irrational and an abuse of power, and the permission would not thereby become unlawful.
5. Environmental publicity and consultation. Regulation 19(5) of the 2017 Regulations applied publicity requirements only where an applicant submitted an environmental statement under regulation 19(1). Regulation 9 permitted reliance on previously submitted environmental information where it was adequate. Since no further environmental statement was required, the additional publicity provisions did not apply.
6. Alternatively, relief was refused under the court’s discretion and section 31(2A) of the Senior Courts Act 1981. The claimant identified no substantial prejudice, had participated extensively in the planning process, and it was highly likely that compliance would not have produced a substantially different outcome. The application for judicial review was dismissed.

The judgment records that the earlier challenge to the inspector’s planning decision was unsuccessful: the High Court decision was reported as [2014] EWHC 3627 (Admin) and the Court of Appeal decision as [2015] EWCA Civ 1189. Permission to appeal to the Supreme Court was refused. The present application for judicial review was dismissed.