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Council defends planning permission for electricity generation facility near Thames

A London borough has successfully defended a High Court challenge to its grant of planning permission for a 3-turbine electricity generation facility next to the River Thames.

The Teddington and Ham Hydro Co-operative wants to build the facility at Teddington Weir, Teddington Lock, Teddington.

The two claimants, Lensbury and Pinenorth, in Lensbury Ltd & Anor, R (on the application of) v Richmond-Upon-Thames London Borough Council & Ors [2016] EWHC 980 either own or have interests in land near the site.

Between them, they advanced five grounds of challenge to Richmond Council’s decision on 17 September 2015 to grant permission for the facility. They were:

1. The council failed to comply with the duty under s.38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") (Ground 1 – advanced by Lensbury).

2. The council failed properly to consider the impacts of the proposed development on heritage assets (Ground 2 – advanced by Lensbury).

3. The council failed to screen the planning application under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 ("the 2011 Regulations") (Ground 3 – advanced by both Lensbury and Pinenorth).

4. The determination of the application was procedurally unfair and the council failed to have regard to material considerations because it limited its consideration to matters relating to noise (Ground 4 – advanced by Pinenorth).

5. Condition NSO1 imposed on the grant of planning permission in relation to noise was unlawful and members were misled as to its effect (Ground 5– advanced by Pinenorth).

Mr Justice Supperstone decided that:

  • On ground 1: The absence of any express reference to s.38(6) in either committee report was immaterial. The judge agreed that it was obvious that the officers’ reports concluded that the development was in conformity with the development plan. Mr Justice Supperstone went on to find that the officers did correctly identify the principal policies which informed their assessment of the material planning issues in relation to the application. “Further, it appears that they properly understood those policies”. The judge said a first report prepared by the council had engaged with the statutory and key policy requirements concerning the impact on heritage assets. “Importantly, the relationship of the site to the character of the river itself and its status of MOL [Metropolitan Open Land] was addressed in the officers’ assessment. Also, following their assessment, the officers at Richmond had “concluded that the development was ‘not considered to compromise heritage assets, registered or otherwise, within their immediate or wider context, as has been suggested or the objectives set out in the Thames Landscape Strategy’….. The impacts were acceptable. That being so, as the officers observed, and as Mr Kolinsky [counsel for Richmond] in my view correctly submits, the need to consider the extent to which benefits balance adverse impact does not arise…...”
  • On ground 2: Mr Justice Supperstone was “satisfied that the relationship of the proposal with the adjoining heritage assets was properly addressed in the First Report; the assessment of the relationship was a planning judgment for the council to take; and the conclusion of the council that the proposed development would have no harmful impact on heritage assets is, on a fair reading of the report, clear. The reasons given by the council are comprehensible and sufficient.”
  • On ground 3: The Richmond Council planning officer had been entitled to reach the conclusion – on the basis of the material before him and for the reasons he gave – that this was not a development that fell within Schedule 2 of the 2011 Regulations. The local authority had applied its mind to the relevant provisions of the regulations. The judge was satisfied that the council had asked itself the right question and having regard to the material before it, arrived at an answer to that question which was not Wednesbury unreasonable.
  • On ground 4: There was “nothing in either of [Pinenorth’s] points” that at a meeting on 16 September 2015 the planning committee at Richmond only considered the acceptability of the proposals in respect of noise impacts, and that the decision of the council was fundamentally flawed because of a change in composition of the committee at the September meeting. The judge said it was clear that the council was aware of and took into account the representations received between the two committee meetings. “It is clear that the committee was aware of representations received since the April meeting and had regard to them. The council concluded that they raised no significant new issues that required re-opening non-noise issues, and that the proposal was acceptable in terms of noise (subject to conditions). In so doing I am satisfied that the council had regard to all material considerations affecting the application.” On the second point, the decision to grant planning permission was taken at the September meeting. “Councillors Diaz, Howard and Palmer, who were not present at the April meeting, had access to all material documentation, including the original report for the April meeting which was set out in Appendix ‘A’ to the Second Report. The decision to grant planning permission was that of the council.”
  • On ground 5: The judge rejected Pinenorth’s submission that condition NSO1 was too imprecise to be enforceable.

Mr Justice Supperstone therefore dismissed the claims.

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