Supreme Court rejects Wiltshire resident's appeal against solar farm

Out-Law News | 13 Jul 2016 | 3:36 pm | 2 min. read

An appeal against the grant of planning permission to a solar farm in Wiltshire "does not raise an arguable point of law of general public importance", and may not be appealed to the Supreme Court.

Daniel Gerber, who owns the Grade II-listed Gifford Hall located near, but not adjacent to, the planned 22 hectare solar farm at Broughton Gifford had argued that he had a "legitimate expectation" that he would have received personal notification about the project from the local authority. However, he did not begin legal action against the developers until 11 months after the three-month limitation period for doing so had expired.

A High Court judge had originally ruled in favour of Gerber, finding that his legitimate expectation was sufficient grounds on which to exercise judicial discretion to grant an extension of time where this was in the interests of justice. In its ruling in February, 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.

In an order seen by, the Supreme Court has now ordered that a further appeal by Gerber be refused.

"The Court of Appeal's decision on legitimate expectation is rightly not challenged," the UK's highest court said. "The remaining issues are questions of discretion raising no issue of law of general importance."

Wiltshire Council granted planning permission for the development on 25 June 2013, after receiving no objections in response to notices of the planning application which had been posted by the council in "prominent places in the vicinity of the site", in the local newspaper and online, according to the judgment of the Court of Appeal. The original developer, a Mr Steve Rademaker, had also held two public exhibitions locally regarding his plans.

Gerber 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.

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. Neither the council nor developers disputed three of the grounds in the Court of Appeal; however, their argument that the Statement of Community Involvement did not create the legitimate expectation of receiving a personal notification was successful.

It was also relevant that it would cost the current owners of the site, Terraform Power Inc, and its now-indirect subsidiary Norrington Solar Farm Ltd around £1.5 million to dismantle the solar farm and return the site to its former agricultural use, according to the Court of Appeal. 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, the appeal court heard.

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