High court decision to quash solar farm planning permission – an update
Recently the High Court agreed to quash the planning permission for a solar farm. The planning application for the 22ha solar farm in Wiltshire was granted in June 2013. In March 2014 a local resident became aware of the application and submitted an application for Judicial Review in August 2014. On the basis of the Judicial Review application the planning application was quashed, despite the solar farm having already been constructed (at a cost of approximately £10 million) and operational. The cost of restoration was also estimated to be approximately £1.5 million.
The quashing of the planning permission was challenged and the Court of Appeal recently overturned the High Court's decision.
These two key reasons for this were:
1. There was no breach of legitimate expectations
The objector argued that he had a legitimate expectation of receiving notice of the planning under a Statement of Community Involvement policy ("SCI").
The Court of Appeal did not accept this interpretation. Under the SCI the Council's responsibility was to "endeavour" to notify those people whose land adjoined the land in question. Therefore only those neighbouring landowners had a legitimate expectation of receiving notice of the planning application.
As the objector had no expectation of receiving specific notice under the SCI, there had been no breach of his legitimate expectation. The objector had the same opportunity as any member of the public to learn about the planning application.
2. No sufficient reason for the objector's delay in bringing the Judicial Review proceedings
2.1 A key consideration in this case was the delay in the objector making a Judicial Review application. The Court considered that the objector had delayed twice. The first delay was between the grant of planning permission and the initial objection. There was a further delay of 5 months before a Judicial Review application was lodged.
2.2 The first delay was explained by the fact the objector was not specifically notified of the planning permission and was not aware of it until works commenced. The Court considered that the appropriate statutory notices were put in place and as such it was inappropriate for the Court to extend the time for bringing a legal challenge just because the objector did not notice what was going on.
2.3 The objector explained that the second delay was as a result of following legal advice. The Court did not consider this acceptable and confirmed that the "fact that a person acts (or omits to act) on the basis of legal advice does not make him less responsible in law for his actions".
2.4 The Court of Appeal considered that, because of the detrimental reliance a developer places on the grant of planning permission, it is in the public interest to ensure that there is "prompt legal action" in relation to any challenges. The Court of Appeal concluded that there needed to be "very special reasons" to allow a delayed Judicial Review application and that there were no such reasons in this case.
This case highlights the importance of having a keen eye on the timing of Judicial Review applications and makes clear that there needs to be an extremely good reason for any delay in making an application, particularly when there is likely to be detrimental reliance by one party. The Court of Appeal made clear that where an objector has been involved in the planning process throughout, they will be expected to act with "especial speed" in relation to their objections – planning practitioners will need to be alive to this and deal with any objections at the earliest opportunity.