In some circumstances, it is possible for a planning decision to be "split" and consent granted instead for a lesser scheme. This issue was highlighted in the recent High Court case of R. (on the application of Coronation Power Ltd) v Secretary of State for Communities and Local Government 2011 EWHC 2216, in which the view of the Secretary of State's Inspector that he could not grant a lesser permission than that originally sought was challenged, albeit unsuccessfully.

How many turbines would be acceptable?

Coronation Power Ltd applied for planning permission to Cornwall Council to construct a windfarm consisting of seven turbines and ancillary development which included an electricity substation and an anemometer mast. Following refusal of the application, Coronation appealed to the Secretary of State. The Secretary of State’s Inspector dismissed the appeal and Coronation challenged this decision and applied to have it quashed.

In dismissing the appeal, the Inspector concluded that by virtue of the scheme’s size, scale and location, it would have a cumulative visual impact on the wider landscape and would dominate and adversely affect the local landscape. He noted that two turbines in particular would have a potentially harmful effect upon a local cricket club and nearby dwellings. Although not specifically asked to do so, in his decision, the Inspector considered whether he should grant a lesser permission, namely the five turbines which had not been identified as harmful to the cricket club. He concluded that a split decision would overcome his concerns and would be one in favour of Coronation. However, the Inspector did not allow the appeal on the grounds that he had heard nothing indicating whether the lesser development would be acceptable or viable to Coronation.

The focus of Coronation’s challenge was the Inspector’s reasoning as to whether he could grant permission for the five turbines which in his opinion did not cause the harm. The Inspector wrongly believed that he could not do so.

In the High Court, Coronation argued that:

  • The Inspector had heard sufficient evidence on the impact of the scheme to be able to make a decision on the grant of a lesser permission for a smaller number of turbines without causing any prejudice; and
  • The issue of viability was not of itself a valid reason to decide whether or not to grant planning permission as it is contrary to Planning Policy Statement 22 whereby local planning authorities should not make assumptions about the technical and commercial feasibility of renewable energy projects.

Coronation believed that had the Inspector taken these points into consideration he would have come to a different conclusion and permitted a five turbine development. The Secretary of State argued that its Inspector was merely providing his opinion on what may be acceptable in the future.

Throughout Coronation’s consultation and application process, reference was only made to a seven turbine development, with no alternative proposals presented. The Inspector had taken account of the environmental statement submitted with the application which, in accordance with the Environmental Impact Assessment Regulations 1999, provided an outline of the main alternatives that had been considered and included schemes of between four and eight turbines.

Split decision not to cause prejudice

Coronation's challenge to the lawfulness of the Inspector's decision was refused. The Court held that it was established law that the Inspector did have the discretion to issue a split decision and it would have been lawful for him to grant a lesser permission, as was established by Kent County Council v Secretary of State for the Environment 1976. However, it made clear that what an Inspector is not allowed to do however is issue a reduced permission that may cause prejudice, as was held in Granada Hospitality Ltd v Secretary of State for the Environment, Transport and the Regions 2001. That case took the approach that it is an option rather than an obligation to permit a lesser scheme, although also emphasised that the lack of opportunity to consult upon it would cause prejudice, even where there would have been no different issues raised or further objections made. In Granada, it was noted that it would be right for the applicant to be informed of the decision maker’s proposals to grant a lesser permission in order to allow them to make representations on this, but there is no requirement for him to consider it in the first place.

Following Granada, it was therefore held that a five turbine development was a different development from that which had been consulted upon. Accordingly, if permission had been granted it would have been to the prejudice of interested parties and objectors. In taking the decision as a whole, the Inspector had come to a reasonable judgement and had not had enough evidence to come to a favourable decision towards a lesser scheme. It was highlighted that Coronation had failed to raise the issue itself or promote a lesser scheme at any point. The Inspector's failure to consider a lesser scheme was not an error of law and, it was irrelevant to the legal soundness of the Inspector's decision to consider what his conclusions may have been, if he had been presented with evidence on the acceptability of a five turbine scheme.

Future prospects of success

It is correct that the reasons given by an Inspector in his decision should assist a developer with his future prospects of success in obtaining a permission for an alternative scheme if their application is refused, a point made in South Buckinghamshire DC v Porter (No 2) 2004. However, it is surely not for him to take on the role of the developer, and suggest alternatives and schemes for them if they fail to take the initiative themselves.

The crux of the issue is whether, if permission is granted for a lesser scheme, would that be substantially the development for which permission was sought. Would it have changed so much that it would have deprived those who would have been consulted the opportunity to do so and so caused prejudice? This is a difficult thing for a developer to accommodate. How, on a practical level, could applicants anticipate during the consultation process that a decision may be split and so ensure that the decision is unable to be challenged for not being consulted upon properly? What split may be deemed acceptable to one decision maker may not be so to another, and it may be difficult for the applicant to cover all possibilities in the consultation process. It may however, if feasible, be a useful approach to identify elements of the scheme at an early stage that may obviously cause harm, so that they could be removed to make it a more acceptable one. It is noted that even in this case, the two turbines that the Inspector disliked were the same distance from the cricket club as others, so it is certainly not always an easy or obvious exercise.

In order for the possibility of a split decision to be issued, it is certainly prudent for the developer to take the initiative and for alternatives to be raised with an Inspector on appeal and evidence to be presented in its favour which addresses the fact that it is not substantially such a different scheme to that applied for. It also highlights the requirement for a robust and broad consultation process to have taken place, in order that it can be shown, if necessary, that no prejudice has been caused by the consent for a slightly different, split scheme.

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