Lights out…

Update – Lights on again…

On 23 February 2016 the developer won in the Court of Appeal and the March 2015 High Court judgment was overturned. The Court of Appeal decided that the owner of Gifford Hall did not have a big enough “legitimate expectation” that he individually would have been notified to justify quashing the planning permission. Moreover the owner had, in the Court of Appeal’s view, waited too long (from June 2013 when the permission was granted to August 2014 when his application was filed) to apply for judicial review.

The Court of Appeal specifically confirmed that it “… would not attach great weight to the failure … to comply with the terms of the planning permission.” A decision on whether or not enforcement action was justified was a matter for the Council.

The owner of the Grade II* listed “Gifford Hall” in Wiltshire has called “lights out” on a 22 hectare photovoltaic array. Planning permission for its construction was granted in June 2013 and electricity generation began in June 2014. The array site was, at its nearest, some 270 metres away from the gardens of Gifford Hall, whose owner was unaware of the planning application and grant until he heard construction start in March 2014.

Despite the fact that the permission had, by the time he gave judgement on March 5 2015, been fully implemented, the High Court Judge quashed it on the basis of several failures by Wiltshire Council to follow proper planning procedures; saying:

“… this is not a case where there has been a simple technical procedural failure which is without content, but is rather a substantive failure to properly apply the regulations which has the potential to lead to an alternative outcome in terms of the substance.”

Wiltshire Council had failed to:

  • consult English Heritage about the proposal, despite the proximity to the listed building and a nearby Conservation Area; and consequently failed to carry out a proper assessment of the impact of the development as required by s66 of the Town and Country Planning (Listed Buildings and Conservation Areas) Act 1990;
  • notify the owner of the planning application, which it ought to have done under the terms of Wiltshire’s published Statement of Community Involvement; and
  • carry out a proper screening exercise under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.

Moreover the developer applied for approval of substantially varied plans in February 2014 and constructed the array in accordance with the revised plans, without waiting for them to be approved. The variation application was refused in September 2014, partly on the grounds of its adverse effect on Gifford Hall.

According to the operator, the development cost £10.5m and site restoration would cost £1.5m. But, despite this, the judge decided that:

“on a fine balance… the proper consideration of the interests of a nationally protected heritage asset and observing the requirements of EU environmental law are, …, of particular importance to the question of discretion in this case. In the circumstances I am satisfied that it is appropriate for the planning permission to be quashed, rather than declaratory relief granted.”

Of course, the developer argued that the owner’s application for judicial review, made 14 months after the decision to grant permission, was too late. The law at the time required such applications to be made within three months of the decision. The limit is now six weeks. But the law permits the Courts to allow a later application in the context of a permission granted by a local planning authority, if there has been no “undue delay” by the applicant. The judge decided that the owner had pursued his objections with sufficient speed so that the application should not be refused merely on the grounds that it was made more than three months after the planning decision.

Happily the quashing of a planning permission that has been implemented is a very rare bird indeed. But the case reminds planning applicants that a careless or cavalier approach by the local planning authority may not be the blessing that, at first sight, it might appear to be.