Hulme v Secretary of State for Communities and Local Government and another

Planning permission – Conditions – Lawfulness – First respondent granting planning permission to second respondent for wind farm – Conditions relating to assessment of noise levels – Appellant seeking to quash permission on ground that conditions failing to secure objective of controlling noise – Whether failing to provide for means of enforcement if noise levels found to be excessive – Appeal dismissedThe appellant owned land close to a site near Tawton, Devon, on which the second respondent wanted to erect a nine-wind turbine wind farm. The local planning authority (LPA) refused planning permission for the development but the first respondent granted it on appeal following a public inquiry before an inspector. Two of the conditions attached to the permission were intended to deal with concerns in respect of the noise from the turbines, including “amplified modulated” aerodynamic noise that rose and fell as air passed over the rotating turbine blades. Condition 20 provided that if the LPA so requested, following a complaint, the wind farm operator would employ a consultant at its own expense to assess whether noise emissions at the complainant’s dwelling were characterised by “greater than expected amplitude modulation”, as defined. Condition 21 prohibited any wind turbine from generating electricity to the grid until the LPA had approved in writing a scheme for the measurement of greater than expected amplitude modulation emissions, with such scheme to terminate only once compliance with condition 20 had been demonstrated to the LPA’s satisfaction.The appellant applied to quash the permission, under section 288 of the Town and Country Planning Act 1990. He contended that conditions 20 and 21 could not achieve their objective of controlling noise since they provided only for its measurement and not for any effective means of enforcement if it were found to be excessive. The respondents argued that enforcement fell within condition 21, since the “scheme” would need to specify how any departure from the condition 20 standards should be dealt with and would have to remain in place so long as there was any possibility that condition 20 might not be met.The judge found in favour of the respondent and dismissed the claim. She held that the inspector had intended there to be an enforcement mechanism and must have intended that the “scheme” under condition 21 would be framed so as to secure that objective. The appellant appealed.Held: The appeal was dismissed.The conditions should be construed in the context of the decision letter as a whole and should be interpreted benevolently rather than narrowly or strictly: Carter Commercial Development Ltd (in administration) v Secretary of State for the Environment [2002] EWHC 1200 (Admin); [2003] JPL 35 applied. Although the extent to which conditions could be rewritten was limited to save them from invalidity, if they could be given a sensible and reasonable interpretation when read in context, they should be so interpreted.Condition 21 was not easy to interpret and the last sentence, dealing with the termination of the scheme when compliance with condition 20 was satisfied, was particularly opaque. However, as a matter of construction, it did not permit the scheme to be terminated where no enforcement mechanism would thereafter be available to deal with complaints that the noise levels were too high. It was not intended that the scheme should terminate while legitimate complaints remained to be assessed and condition 21 did not have to be so construed. The best interpretation was that if the developer could satisfy the LPA that no breach could arise whatever the particular circumstances, the scheme could end.It was not possible to construe condition 21 in such a way that the scheme thereunder was the means of achieving enforcement in respect of noise levels. That would stretch the language of condition 21 too far. Condition 21 stated in terms what the scheme was designed to do, namely to provide for the measurement of the noise generated by the turbines and to evaluate compliance with condition 20, and it said nothing about what was to happen if the evaluation carried out pursuant to the scheme demonstrated non-compliance. However, conditions 20 and 21 could be construed as obliging the second respondent to comply with condition 20. The obligation not to contravene the standards set out in condition 20 arose as a necessary implication from the language of the express conditions, when read in the context of the decision letter. That did not fall foul of the rule against implying conditions into a planning permission since it did not involve an implication from extrinsic circumstances but was more a matter of construction of the express conditions: Trustees of Walton-on-Thames Charities v Walton and Weighbridge District Council (1970) 21 P&CR 411 and Sevenoaks District Council v First Secretary of State [2004] EWHC 771 (Admin); [2004] 14 EG 141 (CS) distinguished. Accordingly, the second respondent was obliged to comply with the noise levels specified in condition 20. That obligation would run for the duration of the planning permission and could be enforced by the planning authority in the normal way.Reuben Taylor (instructed by Richard Buxton Environmental and Public Law, of Cambridge) appeared for the appellant; Lisa Busch (instructed by the Treasury Solicitor) appeared for the first respondent; Gordon Nardell QC (instructed by Eversheds LLP, of Cardiff) appeared for the second respondent.Sally Dobson, barrister