Wind turbines, noise and public information

R (o.t.a Joicey) v. Northumberland County Council , 7 November 2014, Cranston J  read judgment

An interesting decision about a Council not supplying some key information about a wind turbine project to the public until very late in the day. Can an objector apply to set the grant of permission aside? Answer: yes, unless the Council can show that it would have inevitably have come to the same conclusion, even if the information had been made public earlier.

Mr Barber, a farmer, wanted to put up one turbine (47m to tip) on his land. The claimant was an objector, another farmer who lives 4km away, and who campaigns about subsidies for renewables – it is him in the pic. The planning application was complicated by the fact that an application for 6 turbines at Barmoor nearby had already been approved (where Mr Joicey is standing), and the rules on noise from wind turbines looks at the total noise affecting local people, not just from Mr Barber’s turbine.

There had been two false starts in Mr Barber’s application. The Council had granted permission twice before, in each case then agreeing that the permission be quashed due to egregious errors in the process, some of them down to the Council.

A fresh application was then made in 2013. It was then supported by a noise report from WSP, well-known consultants, sent to the Council in August. Unwisely, the Council did not upload it to their planning website until 4 November, and even more unwisely backdated the upload to 9 September.

The next day, 5 November 2013, the planning committee met. The claimant addressed them, complaining about the late submission of the 74 page noise report, and saying that even on the basis of the report the application ought to be refused because of the noise from the Barmoor wind farm. The committee voted in favour of the application  (10-3), with detailed planning conditions to be resolved in due course. The claimant then got a report from another noise consultant disagreeing with WSP’s conclusions.

The planning permission was finalised in December 2013, and so judicial review no.3 followed in January 2014.

The Council’s problem was that agenda items and connected reports have to be open to inspection at least 5 clear days before the meeting, and background reports to the planning officer’s reports have to be listed and open to inspection (ss.100B-D of Local Government Act 1972 as amended). Here there was no list of background reports. The full category of errors is at [42]-[44] of Cranston J’s judgment.

But it gets worse; the Council’s Statement of Community Involvement said that reports should be on its website, and publication of such a Statement is itself a statutory obligation. Hence Cranston J’s conclusion:

In my judgment that paragraph in the Council’s statement is a promise, going beyond the statutory obligations in the 1972 Act, giving rise to a legitimate expectation that there will be publication in accordance with its terms: see R (on the application of Majed) v Camden LBC [2009] EWCA Civ 1029…[12]-[15]; R (on the application of Kelly) v Hounslow LBC [2010] EWHC 1256 (Admin). It is a continuing promise, for otherwise the public’s right to know what is being proposed regarding a planning application would be frustrated.

The Council tried to argue their way out of this hole by saying that the claimant had had his say at the meeting, including making points about how the WSP report did not support the application because of the Barmoor windfarm then under construction. Hence, they said, he was not prejudiced by the statutory breaches.

Cranston J was having none of it

If this is an argument that the Council complied with its legal obligations to publish, it is not one I accept. Right to know provisions relevant to the taking of a decision such as those in the 1972 Act and the Council’s Statement of Community Involvement require timely publication. Information must be published by the public authority in good time for members of the public to be able to digest it and make intelligent representations….. The very purpose of a legal obligation conferring a right to know is to put members of the public in a position where they can make sensible contributions to democratic decision-making.

He added that whether the publication of the information is timely will turn on factors such as its character (easily digested/technical), the audience (sophisticated/ ordinary members of the public) and its bearing on the Council’s decision (tangential/ central). It was certainly not timely here. And the claimant only had 5 minutes to make all his points.

On then to the materiality question (did it matter?) which Grayling has been trying to water down via legislative reforms (see my post here on the proposals) and recently defeated in the Lords: see post here 

Drawing on cases on consultation, Cranston J repeated the point that the decision-maker must show that it was

inevitable

that the decision would have been the same, and the Council had failed to discharge that burden. More time might have enabled the claimant to make further points in opposition, aided with a critique of the WSP report by his own noise expert.

Two more main points were made by the Council. The Council had considered whether to send the matter to committee prior to issuing the formal permission in December, but, as the judge pointed out, only on the question of the conditions. And finally, the last refuge for a failing defendant, an attack on the fact that the claimant lived over 4km from the turbine and would be unaffected by its presence. This goes to standing (see my post on Walton) and the discretion to quash more readily exercised in a claimant’s favour if the decision has serious consequences for the claimant.

This drew forth a magisterial justification of the rule of law and the values of participatory democracy:

Here the claimant had standing to challenge a decision of his local Council. By denying him timely access to information to which he was entitled it limited his full participation in democratic decision-making. The fact that he might not be immediately affected by the proposal where he lives is not a sufficient reason to deny him the remedy he seeks. This was a serious breach by the Council of its statutory obligations.

And the backdating of the date of the upload did not help either on discretion.

Conclusion

This really was an unhappy saga for the Council. I dare say someone somewhere will say that it is all due to stretched resources, but if so, this demonstrates just how short-sighted that can be. Mr Barber has been waiting for 3 years to get a lawful determination of whether he is entitled to put up his turbine. Mr Joicey, the claimant, has devoted much time and energy into getting all three efforts set aside. In this hearing, there were QCs on both sides, and the Council will have to pick up the tab for that.

The robust response of the judge should be an object lesson for Councils. The obvious response, when the muddle about the late uploading of the report came to light, was for the agenda item to be pulled out of the list, so as to give the public more time to respond to the noise report. Mr Barber might have been cross, but a good deal less than he is now, one year on, having to go back to square one.

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