Windy Rhetoric and Legal Reaity – Inspectors Will Still Have Legal Scope to Approve Windfarms

The windy rhetoric

Planning Resource

Speaking in the House of Commons yesterday, Rudd set out details of the government’s plan to bring an early end to a key subsidy for developers of onshore wind farms.

Rudd was quizzed during the debate on government plans to give communities the “final say” on onshore wind farms by Tory MP for North West Hampshire Kit Malthouse. He asked: “Can she reassure those worried communities that that means that they cannot now be overruled by the Planning Inspectorate?”

Rudd responded: “Yes, I can.”

Rudd was also pressed on the issue by Peter Bone, Conservative MP for Wellingborough. He asked: “Can my right hon. Friend confirm that if the Borough Council of Wellingborough turns down a planning application for a wind farm, its decision cannot be overturned by the Planning Inspectorate?”

Rudd responded: “Yes, I can confirm that.”

In a written statement last week, communities secretary Greg Clark set out new considerations to be applied to proposed wind energy developments.

The statement said that local planning authorities should only grant permission if:

– the development site is in an area identified as suitable for wind energy development in a local or neighbourhood plan; and

– following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.

The Conservative Party’s manifesto pledge to give communities the “final say” over onshore wind applications had left experts puzzled over how the change would be enacted.

Experts told Planning last month that scrapping the right to appeal would be undemocratic and would be likely to lead to developers complaining of discrimination, first to UK courts and then to Europe.

The legal reality (from PAS notes)

Since the abolition of Planning General Principles in March of this year (which made claer that public opinion alone was not material) the extent to which consultation reponses are to be taken into account is a matter of Planning Judgement to be governed by the caselaw on planning judgement.

The correct interpretation of national planning policy is a matter for the courts: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13. The Supreme Court nonetheless made clear that there was extensive scope for the application of planning judgement provided that the decision-maker correctly informed themselves in respect of the policy. Paragraphs 17-23 are required reading for any case officer or planning policy officer. 5.

In Hunston, the Court of Appeal confirmed at [4] that Tesco v Dundee applies to the interpretation of the NPPF. It is now clear that the approach also applies to Planning Practice Guidance (PPG): see Lark Energy Ltd v SSCLG [2014] EWHC 2006 (Admin), [70].

As Greg Clarke’s written statement says

local planning authorities should only grant planning permission if:

  • the development site is in an area identified as suitable for wind energy development in a Local or Neighbourhood Plan; and
  • following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.

Whether a proposal has the backing of the affected local community is a planning judgement for the local planning authority.

Unless there is a change in the law to revoke the caselaw or remove the right of appeal this is entirely a matter of planning judgement for inspectors.  They are entirely within their rights, and indeed are duty bound their independent professionalism and parliamentary approved scope to approve a scheme if they feel that the evidence does not back up some local objections and every reasonable effort has been made to mitigate impacts and if the planning balence is in favour of the scheme.  The discretion of inspectors cannot be fettered without a change in the law and unless we what to go down Erdogan (Turkish President) style bullying of planning professionals to come to the dictat result irrespective of policy or evidence then inspectors can and should exercise their discretion.  If they inspectors threatened with the sack for applying their brains then you might as well introduce an act of parliament to abolish the inspectorate and draw lots, or throw darts at the wall, have decisions determined by what side of the bed ministers got out of or have an auction where permissions get granted to whoever offers the biggest bribe or shares a hottub with the minister.  After all that is how planning is decided in most of the developing world and what wonderful results its produces.  

The courts have held a very dim view of misleading speeches that attempt to change the law without a proper vote or legislation.  Come Clean Mrs Rudd if you want Erdogan like powers put it in legislation and let their be a vote.

2 thoughts on “Windy Rhetoric and Legal Reaity – Inspectors Will Still Have Legal Scope to Approve Windfarms

  1. So if I object to my neighbours wind turbine application, how will the lpa demonstrate that the ‘planning impacts identified by the local community (me) have been fully addressed and therefore the proposal has their (my) backing’?
    What if I turn up at planning committee and confirm that the proposal does not have my backing, because I consider that the planning impacts have not been FULLY addressed.
    What if the planning application is refused and at appeal I confirm that the planning impacts have not been fully addressed.
    Are the decision makers entitled to conclude that even though I continue to object, the proposal has my backing because the planning impacts have been fully addressed.
    Or does this ministerial statement set aside the proper approach to planning applications and give me a veto?

  2. So what do you think “an area identified as suitable for wind energy development in a Local or Neighbourhood Plan” means in the absence of an up to date plan (ie one written or updated since Greg Clarke’s Written Statement) identifying locations suitable for windfarms? Does the NPPF presumption in favour of sustainable development apply, as it would to all other forms of development (with the NPPF’s specifically identified Exemptions such as The Green Belt)?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s