Judge rejects challenge against 'late' wind turbine conditions discharge

A High Court judge has backed a Suffolk council's sign off of planning conditions for a wind turbine consent, dismissing arguments that the applicant's 'late' application to discharge the conditions invalidated the permission.

London's Royal Courts of Justice
London's Royal Courts of Justice

Planning permission for the single 125-metre wind turbine was refused by Waveney District Council in 2012, but that decision was later reversed by a planning inspector.

The inspector ruled in April 2014 that the renewable energy benefits of the turbine meant the planning balance came down in favour of the development.

Leading the fight against the turbine was local landowner, Benjamin Howell, of Crake Hall, and the owners of a local flying club.

Objections ranged from concerns over aviation safety to the potential impact on archaeological remains.

The turbine was also opposed by the Broads Authority, 10 town and parish councils and many local residents.

The inspector’s planning permission was subject to a wide range of conditions, High Court judge, Sir Ross Cranston told the court this week.

Amongst other things, the development had to be started within three years, later extended to four.

And no work on the site was permitted until three months after applicant Stamford Renewable confirmed in writing that the conditions had been met.

Amongst other things, the conditions addressed aviation safety concerns raised by a flying club that operates at nearby Church Farm Airstrip.

Stamford Renewable also had to confirm the exact location and height of the turbine and put in place a programme of archaeological works.

The time limit on the application expired on April 2 this year, but the company only applied to Waveney District Council to discharge 16 of the conditions on January 26.

This meant that the condition stipulating that no work on the site was permitted until three months after the applicant confirmed in writing that the conditions had been met would not itself be met before the expiry of the three-year time limit.

But, after being reassured that the Ministry of Defence had been been consulted about aviation safety issues and that archaeological investigations had been arranged, the council lifted the conditions on March 21.

At the High Court, Howell's lawyers argued that the council was wrong to take that step and that the 2014 planning permission had expired.

By the time Stamford Renewable applied to lift the conditions, it was already too late, the three-month time limit having passed, they argued.

Ruling on the dispute, Sir Ross acknowledged that the company was "late" in applying to lift the aviation conditions.

However, the requirement that conditions had to be met three months before work started "did not go to the heart of the planning permission," he said.

The same applied to the archaeological conditions and the company's late application did not make the entire planning permission unlawful.

Objectors also claimed that the council had failed in its duty to publicise the application, and to consult the public, before reaching its decision to lift the conditions.

But the judge said the turbine had "attracted determined opposition" for years, with objectors fully engaged in the planning process throughout.

Any lack of publicity or consultation was in any event "highly unlikely" to have affected the outcome, he ruled.

Howell's challenge was dismissed and the council's decision, and the validity of the planning permission, were confirmed.

In November 2014, Howell failed in a High Court challenge against the inspector’s approval of the scheme.

He later took the case to the Court of Appeal but was again met with defeat.

R on the Application of Howell v Waveney District Council. Case Number: CO/17659/2018


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