PLT Masthead 430

Comment and Analysis Masthead

Wind turbines and local backing

Wind Turbine iStock 000022457486XSmall 146x219Claire Booth analyses a recent Court of Appeal ruling in a case about the grant of planning permission for a wind turbine.

In R (Holder) v Gedling BC [2018] EWCA Civ 214 (CA) H applied for judicial review of the council's decision to grant permission for the erection of a wind turbine on a Green Belt site. He contended that in granting the planning permission, the council had misinterpreted a Ministerial Statement which set out new considerations touching applications for planning permission for wind turbines.

The Statement said that local authorities should only grant permission for wind energy developments involving one or more turbines if "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 planning officer and the planning committee concluded that the development was in accordance with the Statement because the planning impacts were sufficiently addressed to sustain the conclusion that the proposal had local backing.

H argued that the Statement meant that an authority had to be satisfied that the proposal had resolved (i.e. eliminated) all the negative planning impacts identified by any member of the relevant local community. Here, members of the local community referred to negative planning impacts, including certain impacts on visual amenity and cultural heritage, which could not be resolved, in the sense of eliminated, therefore the council could not be satisfied that the proposal had the backing of the local community and could not find that it was acceptable, for the purposes of the Statement.

The court held, dismissing the application, that the council was lawfully entitled to make the assessment, in the exercise of its planning judgement on the evidence available to it, that the balance of view in the local community as a whole was favourable to this wind turbine proposal.

H's submissions were contrary to the natural meaning of the language used in the relevant part of the Statement, especially when read in the context of the Statement as a whole and in the wider legislative and policy context. The natural meaning of the relevant phrase was that a local planning authority could find the proposal acceptable if it had sufficiently addressed the planning impacts identified through consultation with the relevant local community to the extent that it could properly conclude, in the exercise of its planning judgement, that the balance of opinion in the local community was likely to be in favour of the proposal. A planning authority could find a proposal acceptable if it was satisfied that it had addressed the planning impacts identified by the affected local community and therefore had their backing.

The planning authority had to make a judgement, taking account of the representations received and assessing the weight and significance of any objections raised, as to where the balance of opinion was likely to lie within the local community as a whole, including its members who had not made representations. The balance of view in the local community as a whole might well be positive, even though some planning impacts had not been wholly eliminated (but only sufficiently dealt with) and even though some members of the local community might never be persuaded to view the proposed development in a favourable light.

The Statement did not elevate those members of the local community who were the most vehemently opposed to a proposal into the arbiters of the view of the local community as a whole.

Claire Booth is an associate professional support lawyer at Bevan Brittan. She can be contacted on 0370 194 1705 or This email address is being protected from spambots. You need JavaScript enabled to view it..

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