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‘Especial speed’ in judicial review

The Court of Appeal’s recent judgment in R(Gerber) v (1) Wiltshire Council and (2) Terraform Power Inc and Norrington Solar Farm Ltd is a blunt reminder on the importance of promptly filing judicial review applications.

Background

skThe claim concerned the grant of permission for a 22 hectare solar farm installation in Broughton Gifford. It was filed almost a year outside the relevant period.  The Council had complied with the statutory publicity requirements.  The High Court judge nonetheless granted an extension of time for bringing the claim.  The claimant owned the Grade II* Gifford Hall near the site. The developer advertised and held two public exhibitions before submitting the application.  The Council then publicised the application by posting newspaper, online and site notices (including at the end of the lane leading to Gifford Hall).

The claimant remained unaware of the application and so did not object. He only realised the site was being developed once works began and wrote to the Council to object to the impact on the setting of his property.  His complaint was rejected and he waited five months to file a claim for judicial review (by which time the developers had spent about £10.5 million installing the solar farm).

High Court decision

Despite the exceptional delay in bringing the claim, the High Court granted an extension of time and quashed the grant of planning permission. Dove J held that:

  • assurances given in the Council’s Statement of Community Involvement (SCI) had created a legitimate expectation that Mr Gerber would be personally notified of the planning application, which the Council breached.  The fact that he needed time to assimilate all the issues and the supposedly incomplete advice received from his first legal advisors was treated as a reasonable explanation for the delay in bringing the claim; and
  • he was required to quash the permission, given failures to consult English Heritage (as was), to properly deal with heritage impacts and to properly screen the application for EIA purposes.

Appeal decision 

The first instance decision led to concern that a planning permission was not “safe” even when the challenge window had passed. The Court of Appeal unanimously rejected this approach and the judgment makes clear that once planning permission is granted a developer is entitled to rely upon it.  There was no reasonable explanation for either the lengthy delay between the grant of permission and the claimant’s objection to the Council or his delay in bringing legal proceedings.

Gerber is nonetheless a blunt reminder that:

  • Compliance with statutory notice procedures is essential, but the Courts will rarely impose more onerous requirements based on legitimate expectation.  Care is needed to ensure that commitments in Statements of Community Involvement have been honoured though.
  • Prompt legal action to challenge the grant of planning permission is required in all cases, unless very special reasons can be shown.  Objectors who have been involved in the planning process throughout should act with “especial speed”.
  • Extending time for bringing a legal challenge should not be allowed simply because an objector did not realise what has happening, where statutory notice requirements are met.
  • Failure to deal properly with EIA and heritage issues can be fatal, where claims are brought in time. Even where there are acknowledged breaches of EIA and heritage duties, though, the effects of exercising the discretion to quash must be weighed up.
  • Quashing of a permission is a discretionary remedy.  The Court of Appeal did not need to decide whether the permission should have been quashed, but made clear that it would not have done so given: the significant delay in bringing the claim without good reason; the prejudice to the solar farm operator (including £1.5m to dismantle the development, plus the £10.5m invested in construction); the lack of real damage to the claimant’s own interests; and the need for good administration.  In a difficult political climate, investors may also take some comfort from the importance given to renewable energy development and investor certainty.
  • The longer the delay after the grant of planning permission the greater the risk and extent of hardship and prejudice to developers if the consent is subsequently set aside. Being able to substantiate the financial costs of development is essential to be able to rely on this prejudice.

Wind farm community benefits ‘are not a material consideration’, guidance says …

wind-turbines17DECC have just published “Guidance of Community Benefits from Onshore Wind Developments“.  The paper provides some great examples of the way in which contributions from windfarm operators can help local communities.  It builds on the 2013 industry protocol that suggested a minimum annual payment of £5,000 per MW output.  The document notes that the scheme is voluntary and that the benefits should not generally be taken into account in deciding planning applications.  Is this advice right?

What is a material consideration is a matter for the Courts.  The Courts have always had a generous interpretation of material consideration, with the Witney case noting that a planning obligation need only have a “more than tenuous” link to a development to be material.  If a consequence of granting permission for a windfarm is that long term benefits will be provided for a local community, surely that is material?

There is then a separate question about what, if any, weight can be given to a material consideration.  In Plymouth the Courts were quite clear that the weight attached to a material consideration was a matter for the decision maker.  However, the main decisions relating to planning obligations were before the introduction of Regulation 122 of the CIL Regulations 2010 (as amended).  Regulation 122 says that a planning obligation should not be taken into account as a reason for approval unless it meets the statutory tests of necessity, direct relationship and reasonableness in scale.  Accordingly, a planning obligation or a condition securing benefits may well be a material consideration but probably cannot be a reason for approval unless it meets the relevant tests.  DECC appear to have muddied the water on this issue by suggesting that it cannot even be material.

If a planning authority has a policy that says that, without community benefits, windfarms will normally be refused permission then a community benefits obligation will overcome a potential reason for refusal and can probably be taken into account as a factor that removes the reason for refusal.  It is then a relevant and weighty material consideration.  The upshot is that if planning authorities want to secure windfarm benefits they should adopt policies that give a clear foundation for securing appropriate contributions and a sound basis for refusal in their absence.

Similarly, if local planning authorities want to secure infrastructure on large schemes and to avoid some of the perceived constraints of Regulations 122 and 123 then they should also put appropriate policies in place.

Solar permitted development rights

The Government published its technical consultation on Planning in July 2014, the consultation included proposals to increase permitted development rights for solar power.

Everyone wants to do their bit to help save energy, in particular by using clean, renewable energy sources.  The government is proposing to allow development of non-domestic solar panels generating up to one megawatt without planning permission.

The consultation is not clear as to whether this new right will replace the existing right solar whereby permitted development rights exist to allow the installation of PV panels on non-domestic buildings with a capacity of no more than 50kW, or to create a wholly new right for those proposals above 50kW but under one megawatt.  Clarifying this issue with CLG, they have confirmed that a new right, in addition to the existing right, is proposed. This new right (for proposals above 50kW but under one megawatt) will require prior approval, where the LPA is to consider siting and design to minimise impact of glare, other typical conditions (i.e. extending beyond the roof line, excluding Article 1(5) land, and heritage assets) will apply.

This is a step in the right direction, a new proposal to allow up to one megawatt capacity without planning permission.  Not only would this be of great benefit to those new, and refurbished, commercial buildings, seeking to add to their green credentials, but also to those parish and town councils that often receive community benefit funding to develop solar panels on buildings within their area, taking away the extra red tape of having to obtain planning permission.

A stake in hearts and minds

Achieving local support for major projects is a challenge.  Financial commitments under Section 106 TCPA 1990 are little help in securing support – where they are a ‘reason for approval’, they cannot not go beyond what is necessary to make the scheme acceptable.  As such, they are rarely a benefit on their own.  Designing in benefits, then securing them by condition or S106, is an easier win. 

Community Benefits

But controversial schemes often need more to persuade local communities that they will share in  benefits as well as impacts.  The Government is committed to the idea that ‘host’ communities should share in the benefits of major development to capture their support and this is being applied in several sectors:

  • Nuclear: the Business Rate Retention (BRR) allows local authorities to retain some or all of the business rates arising from new development, with special arrangements for new nuclear power stations involving up to £1,000 per generated MW over 40 years.
  • Renewables: the renewableUK Community Benefit Protocol proposes £1,000 per MW of installed capacity, or equivalent benefits-in-kind, to be provided directly to host communities. 
  • Fracking: The UK Onshore Operators Group proposes £100,000 per fracked site and a 1% share of revenues if drilling succeeds.
  • Airports: it has been suggested that a community trust should be given part ownership of, and a share in the profits from, any third runway at Heathrow.

Finding the right vehicle

The easiest way to deal with these incentives would be a hypothecated tax collected locally and payable to eligible local bodies. For the time being, though, developers must structure their own deals. Finding representative bodies to receive funds and implement good works is often difficult. Dealing separately with numerous individuals is impracticable and unrepresentative. Existing groups may also be unsatisfactory proxies for the community as a whole (or their legal form may be such that they are not ideal recipients − even as trustees − of significant financial benefits) although this has worked successfully with regular payments being made by the operators of the London Eye being routed to the South Bank Employers Group.

We have addressed the scope for Community Interest Companies to do the job in our detailed e-bulletin.  CICs provide independent corporate governance, distinct both from individual residents and the authorities, and an “asset lock” and “community interest test” guaranteeing that resources are applied as intended.  By using a CIC in their operating arrangements, developers of contentious, revenue-generating infrastructure can make a credible argument outside the planning process about positive impacts.  They can also enhance their corporate social responsibility profile, whilst moving beyond debates with local authorities on benefits.  The use of CICs for wind farm projects  such as Fullabrook in Devon and Swinford in Leicestershire confirms their usefulness as an efficient and accountable channel for community benefit.  At Fullabrook, Devon Wind Power transferred £1 million to the CIC, and pays £100,000 each year that the wind farm generates power.

If the approach is developed on these major schemes then it may provide a better model for other development, moving the focus from addressing impacts at the start of the development process to finding ways to ensure that new development continues to contribute to the place in which it sits over the longer term.

Solar Farms – New Guidance

As part of its ongoing struggles to reconcile localism and sustainable energy production, the Government has now published planning guidance to clarify its position. The companion guide to PPS22 has been repealed and replaced with new, short planning guidance that sits alongside the NPPF. In June, a joint DCLG and DECC announcement stated that new planning guidance would be issued to ensure that renewable energy does not “automatically override environmental protections and concerns of local communities”. This was widely interpreted as giving communities a right to veto new sustainable energy development, a fact then denied by housing Minister Mark Prisk.

The Practice Guidance emphasises that the NPPF’s recognition of the need to increase the use and supply of green energy does not override “environmental protections and the planning concerns of local communities”. It is notable that the Practice Guidance does not mention the need for contributions to community led renewable energy initiatives, in particular the need to mitigate any impacts. LPAs are encouraged to prepare specific policies to determine applications for renewable energy development, and if contributions are to be sought they should be sought through these policies.

Solar Farms – Planning Appeal Update

Recent planning appeal decisions highlight the main issues being considered by Inspectors at appeal. These should be taken into account when scouting for sites as well as determining the size, location and height of your proposed ground-based solar farms.  The issues raised in recent decisions highlight the need to undertake consultation with the local planning authority, as well as any neighbouring properties and communities. Many of the schemes did not provide the local community with contributions to supporting locally-based energy reduction schemes, as is seen on a number of locally-made decisions. This does call into question the need and demand from many local planning authorities in connection with proposed solar farms for a contribution. It should not be an automatic offer; if there is a policy basis for providing a contribution, this should be discussed as part of the application determination. In all cases the Inspector recognised the contribution to renewable energy targets.