On 12 December 2013 Mr Justice Lewis dismissed a claim from a Cornwall resident, Mr Corbett (Claimant) for judicial review of a decision of Cornwall Council (Defendant) to grant planning permission to REG Windpower Limited (Interested Party) for a five turbine commercial wind farm at Denzell Downs, Cornwall.
Squire Sanders senior associate Andrew Batterton instructed Vincent Fraser QC, representing the Interested Party.
The case addresses a couple of points that will be of wider interest to those involved in the promotion and determination of planning applications considered under the National Planning Policy Framework (the Framework) and those the subject of Environmental Impact Assessment (EIA).
Firstly, the judgment considers the extent to which the Framework has brought about material changes to national planning policy, particularly in the context of renewable energy projects.
Secondly, it clarifies what information submitted voluntarily by an applicant in addition to its Environmental Statement is capable of being treated as “any other information” for the purposes of the EIA Regulations, the submission of which will require the decision maker to advertise and to suspend determination of the application for 21 days.
The full judgment is available via the following hyperlink: http://www.squiresanders.com/pdf/corbett-v-cornwall-council.pdf. A summary is provided below.
A planning application for the five turbine wind farm was submitted to the Council on 28 February 2011. The application was supported by an Environmental Statement. During the course of the application, the applicant provided additional information to the Council and to consultees to address comments raised by Council officers, consultees and objections from members of the public. The developer also provided responses to independent assessments on impacts of the development commissioned by both the Council and resident objectors.
The Council resolved to grant planning permission on 22 September 2011. Planning permission was granted approximately six months later on 18 April 2012 following completion of a section 106 unilateral undertaking to secure a community benefit fund and other measures.
In the period before the planning permission was issued but after the resolution to grant was made, the Framework was adopted in its final form (March 2012), condensing and revoking a raft of pre-existing national policy documents including the suite of Planning Policy Statements. Whilst PPS22 (Renewable Energy) was cancelled, the Companion Guide to PPS22 remained intact at that time. The government’s Overarching National Policy Statement for Energy (EN-1) and an NPS for Renewable Energy Infrastructure (EN-3) were in force at all stages of the application process and remain in force today. At the time of resolution to grant planning permission, the Framework was in draft form.
Permission to judicially review the Council’s decision was granted on 27 February 2013 on six grounds. At the substantive hearing the Claimant’s case centred on two elements of the grounds which essentially can be summarised as:
- Whether adoption of the Framework represents a material change or shift in national planning policy under, among others, the previous Planning Policy Statements; and
- What additional information submitted subsequent to the first advertisement of the Environmental Statement should also be published as “any other information” under Regulation 19(3) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, as amended.1 Among other things, the Claimant complained that failure to advertise additional information denied him the opportunity to comment upon information forming part of the application.
Has the Framework resulted in a Material Change in National Policy?
The first of the Claimant’s grounds alleged that the Council failed to reconvene its Strategic Planning Committee to reconsider the planning application in the light of what he contended are material changes to policy brought about by the publication of the Framework.
The Claimant argued that the Framework “signalled a sea change in the Government’s approach to national policy”. In oral submission, counsel for the Claimant sought to identify extracts from, among other things, Planning Policy Statements, the draft Framework and the adopted Framework that it contended demonstrates that the adopted Framework places greater emphasis on the protection of the environment, especially the countryside, and a more softened emphasis on economic growth when read as a whole. Lewis J was not persuaded. The draft Framework was an emerging policy and not in force at the time of the decision and would be given limited weight. The real focus for consideration, therefore, is any difference between the earlier Planning Policy Statements and the later Framework. He found no material change in policy or emphasis in that regard. In any event, he also found no changes in substance between the draft and final Framework on the matters concerning the application. Lewis J provides some useful analysis of comparative parts of the earlier policy and the Framework2.
Of general application, Lewis J comments that the government’s overarching objective for sustainable growth was policy within PPS4 and is not a new requirement in the Framework. In his judgment, there was no intention to bring about a change in substance to national policy. This is apparent in the foreword to the Framework which identifies that its aim is to replace and simplify national policy.
Specifically in relation to renewable energy projects, Lewis J comments that the supplement to PPS1 encouraged local authorities to provide a framework that promoted and encouraged renewable and low carbon energy generation. It indicated that planning authorities should not require applicants for planning permission to demonstrate the overall need for renewable energy and should ensure that any local approach to protecting landscape, amongst other matters, did not preclude the supply of renewable energy. A similar approach, and similar language, appears in the Framework. He considers that this is further apparent by the fact that the Companion Guide to PPS 22, setting out practical advice on policies intended to encourage the appropriate development of renewable energy, remained in force at all material times3. He notes that the policies set out in PPS 22 are now set out in the Framework in essentially similar form and consequently the practical advice on implementing the policies remained the same. Furthermore, the approach to assessing the likely impacts of wind energy development set out in EN-3, read with the relevant paragraphs of EN-1, were already in force at the time of the resolution to grant planning permission in this case and are expressly adopted in the context of renewable energy projects by footnote 17 to the Framework.
It was further alleged by the Claimant that the removal of minimum targets for renewable energy is another change in national policy brought about in the period between the resolution to grant and grant of permission. This suggestion was dismissed as both PPS22 and now the Framework dictate that the fact that a target has been reached is not in itself to be used as a reason to refuse planning permission for further renewable energy projects4.
When is Additional Information “Any Other Information” for the Purpose of the EIA Regulations?
The Claimant’s fourth ground alleged that there was a failure to disclose planning application related documents to the Claimant and make them available to the public or there was a failure to notify the public of the existence of the documents.
The Claimant’s primary case rested on whether various documents made available to the Claimant upon request but after the Planning Committee’s resolution to grant planning permission should have been publicised as environmental information thereby affording the public an opportunity to comment. The Claimant alleged a breach of Regulation 19(3) the EIA Regulations which requires, among other things, the recipient of “further information” or “any other information” to publish a notice in a local newspaper stating that that information has been provided, giving details of where it may be inspected and the right of any person to make representations in respect of it. The Claimant also relied upon Regulation 19(7) of the Regulations which requires the planning authority to suspend the determination of an application for planning permission for 21 days from the date of the publication.
There was no question of the additional documents complained of constituting “further information” as the Council did not, following receipt of the Environmental Statement, issue a Regulation 19(1) request. The point therefore turned on the proper interpretation of the words “any other information” which are defined in Regulation 2 of the EIA Regulations as “any other substantive information relating to the environmental statement and provided by the applicant or the appellant as the case may be“.
Essentially, the Claimant raised the question what information submitted voluntarily by an applicant after its Environmental Statement should be treated as additional environmental information that ought to be published. The Claimant contended that a wide range of information falls within this definition including correspondence between the applicant and third parties (including statutory consultees) where this information comes to the attention of the Council. Furthermore, the applicant’s comments or responses to the Council to third party concerns. The Claimant also suggested that any other information produced by third parties including resident objectors or by the Council’s own independent advisors should also similarly be published.
This is an issue that practitioners grapple with regularly when advising both local planning authorities and developers in respect of additional information submitted in support of planning applications for EIA development.
In arriving at his judgment, Lewis J sets out a useful summary of each of the statutory regimes applicable to access of information relating to planning applications noting that the different statutory regimes have different definitions of environmental information. Each regime imposes different obligations. In some instances, it is an obligation to provide access to certain types of information when requested. In others, it is an obligation to publicise the fact that certain specified information has been received.
Lewis J did not favour the Claimant’s very wide definition of “any other information” for the purpose of Regulation 2 of the EIA Regulations; not least because of the potentially absurd situation in which a local planning authority would otherwise face having to advertise any additional information that refers to or deals with matters that are covered in the Environmental Statement and thereafter further advertise any responses received to that advertisement and to suspend determination each time for another 21 days.
Lewis J ruled that “any other information” does not include documents submitted by third parties or information generated by the Council or by the applicant in response to that information. Rather, he concluded that to be so classed, the additional information must be such that it is necessary to ensure that the requirements of Schedule 4 of the EIA Regulations are met. In other words, it must be information to address a deficiency in the Environmental Statement. It is more than correspondence or information from the applicant or others commenting on or clarifying matters in respect of the application or consultation responses.
Essentially, the matter of what information should be publicised is a judgment for the decision maker. This ruling will however be reassuring to local planning authorities and developers as it affirms common practice. The case is perhaps a reminder of the need to be necessarily vigilant and prudent. It does however more importantly confirm that the requirement to publicise information under the EIA Regulations is reserved only for that information necessary to remedy an otherwise inadequate Environmental Statement. In practice, this might additionally arise as a result of material amendments to the proposed development and which fall outside the parameters assessed in the Environmental Statement.