Court of Appeal throws out solar farm challenge brought 14 months after planning permission was granted

Out-Law News | 01 Mar 2016 | 3:29 pm | 3 min. read

A High Court judge should not have overturned planning permission granted to a solar farm in Wiltshire in response to a legal challenge brought 11 months after the three-month limitation period then in force had expired, the Court of Appeal has ruled.

Judges have some discretion to grant extensions of time where this is in the interests of justice. In this case, the High Court judge had agreed with local resident Daniel Gerber that he had a "legitimate expectation" that he would have received personal notification about the planned project from the local authority. The Court of Appeal disagreed, and also ruled that even if Gerber had been successful it would have been disproportionate to quash the planning permission entirely given that substantial investment had already been made in the site.

"The basic position regarding the need for an objector to a grant of planning permission to take speedy action to challenge such grant in the courts is not in doubt," said Lord Justice Sales in a unanimous judgment. "This is clearly set out in the relevant authorities."

"Once planning permission is granted the owner of the land to which it relates is entitled to rely upon it and there is a substantial risk that he will begin investing effort and money to do so without waiting any lengthy period before he does. Also, planning permission will have been granted because the grantor is satisfied that it is in the overall public interest for the development to occur, without any further delay," he said.

The current owners of the site, Terraform Power Inc and its now indirect subsidiary, Norrington Solar Farm Ltd, told the court that it would cost them around £1.5 million to dismantle the solar farm and return the site to its former agricultural use. Quashing the planning permission would also waste the £10.5m that had been spent on installing the solar farm in the first place, as well as a premium of £2,000 paid for an option to take the lease and locked-in rental payments worth around £36,300.

Gerber owned Gifford Hall, a Grade II-listed building located near, but not adjacent to, a 22 hectare solar farm at Broughton Gifford in Wiltshire. The development was granted planning permission by Wiltshire Council on 25 June 2013, after notices of the planning application posted by the council in "prominent places in the vicinity of the site", in the local newspaper and online raised no objections. The original developer, a Mr Steve Rademaker, had also held two public exhibitions locally regarding his plans.

The resident did not realise that the site was being developed until 19 March 2014, when he first noticed work being carried out. He emailed the council the following day objecting to the development. When the council rejected his complaint, and after seeking legal advice, Gerber ultimately began a claim for judicial review. He was given permission to pursue the claim on 20 October 2014.

Individuals and organisations previously had three months in which to begin a claim for judicial review, unless a judge granted an extension of time. This period has since been shortened to six weeks. In the High Court, Mr Justice Dove granted Gerber an extension of time on the basis that the council had committed to consulting local residents about planned developments through a published Statement of Community Involvement. He then upheld four of Gerber's challenges to the planning permission, and ordered that the planning permission be quashed.

At the Court of Appeal, neither the council nor developers disputed three of Gerber's grounds of challenge. However, they argued that the Statement of Community Involvement did not create the legitimate expectation of receiving a personal notification, and that Mr Justice Dove had been wrong in both his decision to allow Gerber an extension and his decision to quash the planning permission. The Court of Appeal agreed on all three points; first finding that the council's policy was not "unambiguous" enough to give rise to a legitimate expectation on the part of Gerber.

"Absent any legitimate expectation relevant to his specific case, Mr Gerber was in the same position as any member of the public so far as notification of applications for planning permission in the locality was concerned," said Lord Justice Sales.

"The notification rules … are themselves part of the legal framework designed to strike a fair balance between the competing interests of objectors and developers. If there is compliance with those rules, as in this case, potential objectors among the general public will have been given what is normally to be regarded as a fair opportunity to learn about and object to a proposed development before planning permission is granted. Landowners are expected to be reasonably observant in keeping an eye on developments in their locality which might affect them. There was no legitimate expectation for Mr Gerber in this case that might have put him off his guard as to that," he said.