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High Court dismisses wind turbine challenge, but variable height condition unlawful

Out-Law News | 19 Aug 2015 | 3:31 pm | 2 min. read

A planning condition allowing the height of a new wind turbine to be increased with the approval of the local authority must be "severed" from the otherwise lawful planning permission, the High Court has ruled.

The Court rejected a judicial review of the planning consent granted  for a 67 metre wind turbine to be built in Carmarthenshire, south west Wales, brought by local residents. However, it was concerned that one of the planning conditions attached to the planning permission "would permit variations in height so that the scale and impact of the turbine would be different from that for which permission was granted".

Litigation expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law.com, said that the High Court's decision was "one of those apparently minor decisions with major implications".

"Turbines change all the time, particularly over the long period of a project, so allowing for change within the local planning authority (LPA) consent can be very sensible," he said. "After all, the planning authority can refuse consent or demand that an environmental impact assessment (EIA) takes place first. However, here the judge said that the provision was unlawful altogether."

Local residents, led by John Hubert, had included the council's decision not to require an EIA among their grounds for judicial review. However, Mr Justice Cranston said that the local authority did not have to conduct "a detailed assessment of factors relevant to the grant of planning permission nor does it require all considerations to be mentioned" when deciding whether or not an EIA was required.

Carmarthenshire County Council first approved the plans for the turbine, to be built by Swansea-based renewables firm Seren Energy, in September 2014. A second planning permission application received approval in January. The consent covered transportation of the turbine and equipment to Wern, a nearby village, along narrow country lanes as well as the impact of the turbine itself. The court heard that the construction process would involve more than 100 heavy lorry trips over a three-month period, including nine "abnormal loads".

The court heard that John Hubert and his wife had lived in a "traditional stone Welsh long cottage" about 400m from the proposed development for 40 years. The council acknowledged that the Huberts and other local residents could potentially experience "significant adverse visual impacts" as a result of the development, but that these would not be "of a significance to result in the properties becoming unattractive or unsatisfactory places in which to live".

As well as rejecting Hubert's challenge on the EIA point, the judge also rejected his challenges to conditions relating to highway access and to the council's interpretation and application of its own development plan, which provided that "no turbine should cause demonstrable harm to the amenity of any residents".

"Visual impact is only one aspect of whether there is demonstrable harm to residential amenity, and the [council's planning] committee was told that the [more detailed] reasons given in the planning permission for approval certify compliance with [the policy]," he said. "The committee reached that judgment after considering the [planning] officer's report and its addendum, the site visit the same day as the decision was made, and the oral representations before it."

However, the judge said that the planning condition allowing the new turbine to go outside of specified dimensions providing that the developer had "the written approval of the local planning authority" potentially allowed all the "safeguards" contained in the planning permission to be "sidestepped". Given the "centrality" of the condition to the subject matter, and the "acknowledged significance of the turbine's dimensions to its environmental effects", the condition had to be removed, the judge said.

"Here, what the condition on its face allows is for variation, up or down, and without any restriction either way, from the dimensions the council assessed and specified in its first part," he said.

"It would be quite wrong for the planning permission here, having been subject to public debate and democratic decision-making in the council, to be capable of being side-stepped by use of the [condition]," he said.

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