The High Court has upheld Gedling Borough Council’s decision to grant planning permission for the erection of a wind turbine

Thu, 20 Jun 2013

The High Court, sitting in Birmingham, has upheld Gedling Borough Council’s decision to grant planning permission for the erection of a wind turbine in the Green Belt. 

Richard Kimblin and Hashi Mohamed of No5 Chambers were instructed to defend judicial review proceedings brought against Gedling Borough Council.  This case is a good illustration of what is and is not relevant in renewable energy applications, particularly where the development is proposed in the Green Belt. Mr Justice Kenneth Parker  dismissed all of the grounds which attacked the Council’s approach to material considerations and EIA screening.

The challenge to the Council’s pre-NPPF decision came in three forms. First, it was submitted that the Council had erred in law in its approach to material considerations; second, there was challenge to the validity of the obligations imposed as part of the permission, and the lawfulness of accepting undertakings as distinct from imposing planning conditions; and third, the screening opinion disclosed on its face an error of law. 

The Claimant sought to attack the approach taken by a planning officer when giving guidance to the Council as to what to take into consideration when granting permission. Parker J rejected this argument, saying: 

“…in my view, firstly, there is nothing in the caselaw, upon which Mr Harwood QC relied, that precludes an officer from giving guidance and advice to the Council as to what in substance are the considerations material to the planning application in relation to the specific proposal before the Council.  On the contrary, there are considerable advantages if the officer does give such guidance and advice because, if it is soundly based, the decision maker is more likely to focus and to concentrate on what is really important and determinative, rather than be distracted by matters which could, hypothetically, be relevant but which, in the particular case, have no real bearing upon the final decision.  The process is then likely to be more efficient and the final decision to be more justifiable.”

The judge took the same view as to the materiality of alternative sites (paragraph 44), the amount of energy which would be generated by the turbine (paragraph 51) and the financial benefit to the Applicant (paragraph 52).  In short, if policy clearly points away from refusal on such grounds, then decision makers need not occupy themselves with them.

This case guides planning officers to focus on what is important in their reports to members rather than that which is merely of hypothetical relevance, but will ultimately have no bearing on the final decision. 

You can read the full judgment here - please click here to download.

Please click here to view the profiles of Richard Kimblin and Hashi Mohamed


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