ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
MS FRANCES PATTERSON QC sitting as a Deputy High Court Judge
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE PATTEN
| MICHAEL WILLIAM HULME
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
|- and –
|RES DEVELOPMENTS LIMITED
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Ms Lisa Busch (instructed by Treasury Solicitor) for the First Respondent
Mr Gordon Nardell QC (instructed by Messrs Eversheds) for the Second Respondent
Hearing date : 8 March 2011
Crown Copyright ©
Lord Justice Elias :
The archaeology of the conditions.
"On the basis of the evidence I have received, I conclude that the possibility of greater than the expected impact from AM would be possible. In circumstances where the result of unforeseen consequences is sleep disturbance, I am in no doubt that in the event of the appeal succeeding, a condition to regulate the phenomenon is both necessary and reasonable."
"The appellant objects in principle to the inclusion of a condition designed to regulate AM on the grounds that excessive AM is rare; stable atmospheric conditions are rare at the appeal site; it is not recommended in ETSU-R-97; and there is insufficient knowledge to achieve the necessary balance between the preservation of amenity without causing profound damage to the UK wind industry.
In my opinion these misgivings are either overstated or misleading. I do not see that the rarity of the circumstance constitutes a valid reason to object to such a condition. If it is unlikely, then it is equally unlikely that it would be necessary to enforce the condition. On the basis of the evidence I have heard I am satisfied that the phenomenon is not fully taken into account in ETSR-R-97 and the condition imposed is of a precautionary nature. … [I]n my opinion the imposition of conditions is both necessary and reasonable.
The appellant complains that the condition drafted by DBJRG contains subjective elements, but I cannot see this. I fear the psycho-acoustic approach suggested by the appellant would be likely to be significantly more subjective. The possibility of a penalty approach is suggested similar to that included in ETSU-R-97 for a tonal component and as cited in Note 3. However, I have received no details of an appropriate sliding scale. I do accept nevertheless that the proposed condition would benefit from redrafting in order to clarify its content and purpose. I have amended it to this effect."
"16. The rating level (as defined in the Glossary of PPG24: Planning and Noise) of noise immissions from the combined effects of the wind turbines (including the application of any tonal penalty), when assessed in accordance with the attached Guidance Notes, shall not exceed the values set out in the attached Tables 1 and 2 below. Noise limits for dwellings which lawfully existed at the date of this permission but not listed in the Tables attached shall be those at the nearest location listed in the Tables.
17. At the request of the local planning authority following a complaint the wind farm operator shall, at its expense, employ a consultant approved by the local planning authority, to assess the level of noise emissions from the wind farm at the complainant's property following the procedures described in the attached Guidance Notes. A report of the assessment shall be provided in writing to the local planning authority within 56 days of a request under this condition unless this period is extended by the local planning authority in writing.
19. No wind turbine shall generate electricity to the grid until the local planning authority, as advised by a consultant approved by the local planning authority at the expense of the operator, has approved in writing a scheme submitted by the wind farm operator providing for the measurement of noise immissions from the wind turbines The objective of the scheme (which shall be implemented as approved) shall be to evaluate compliance with condition 16 in a range of wind speeds and directions and it shall terminate when compliance with condition 16 has been demonstrated to the satisfaction of and agreed in writing by the local planning authority.
20. At the request of the local planning authority following the receipt of a complaint the wind farm operator shall, at its expense, employ a consultant approved by the local planning authority, to assess whether noise immissions at the complainant's dwelling are characterised by greater than expected amplitude modulation. Amplitude modulation is the modulation of the level of broadband noise emitted by a turbine at blade passing frequency. These will be deemed greater than expected if the following characteristics apply:
a) A change in the measured L Aeq, 125 milliseconds turbine noise level of more than 3 dB (represented as a rise and fall in sound energy levels each of more than 3 dB) occurring within a 2 second period.
b) The change identified in (a) above shall not occur less than 5 times in any one minute period provided the L Aeq, 1 minute turbine sound energy level for that minute is not below 28 dB.
c) The changes identified in (a) and (b) above shall not occur for fewer than 6 minutes in any hour.
Noise immissions at the complainant's dwelling shall be measured not further than 35m from the relevant building, and not closer than within 3.5m of any reflective building or surface, or within 1.2m of the ground.
21. No wind turbine shall generate electricity to the grid until the local planning authority, as advised by a consultant approved by the local planning authority at the expense of the operator, has approved in writing a scheme submitted by the wind farm operator providing for the measurement of greater than expected amplitude modulation immissions generated by the wind turbines. The objective of the scheme (which shall be implemented as approved) shall be to evaluate compliance with condition 20 in a range of wind speeds and directions and it shall terminate when compliance with condition 20 has been demonstrated to the satisfaction of and agreed in writing by the local planning authority."
The relevant legal principles.
a) The conditions must be construed in the context of the decision letter as a whole.
b) The conditions should be interpreted benevolently and not narrowly or strictly: see Carter Commercial Development Limited v Secretary of State for the Environment  EWHC 1200 (Admin) para 49, per Sullivan J, as he was.
c) A condition will be void for uncertainty only "if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results" per Lord Denning in Fawcett Properties v Buckingham County Council  AC 636, 678. This seems to me to be an application of the benevolent construction principle.
d) There is no room for an implied condition (although for reasons I discuss more fully below, the scope of this principle needs careful analysis). This principle was enunciated by Widgery LJ, as he then was, in Trustees of Walton on Thames Charities v Walton and Weighbridge District Council  21 PMCR 411 at 497, in the following terms:
"I have never heard of an implied condition in a planning permission and I believe no such creature exists. Planning permission (inaudible) is not simply a matter of contract between the parties. There is no place, in my judgment, within the law relating to planning permission for an implied condition. Conditions should be expressed, they should be clear, they should be in the document containing the permission."
The decision of the judge.
"43. Conditions 20 and 21 have to be read in the context of the decision letter of which they are a part. From that it is evident that the inspector regarded a condition or conditions to regulate excessive AM as fundamental to the grant of planning permission. Without such a condition or conditions he retained real concerns about the preservation of sleep on the part of the local residents when the turbines were operational, and he retained reservations about the uncertainties inherent in the forecast of AM. He rejected the appellant's argument that it was not necessary to impose such a condition as being overstated or misleading. The inspector found that the condition to deal with AM would be of a precautionary nature and was necessary and reasonable. It is clear also, in my judgment, that the inspector intended through his re-drafting to clarify the content and purpose of both conditions. He clearly envisaged that his re-draft would assist the local planning authority with enforcement, should that become necessary.
44. Condition 21 is the first condition in time to be discharged. Until the wind farm operator has a scheme submitted under condition 21 and approved in writing by the local planning authority, he is unable to operate his wind turbines so that they generate electricity. What is an acceptable content of such a scheme is for the judgment of the local planning authority, guided by the wording of conditions 21 and 20 in the context of the preceding decision letter. Condition 21 sets out in express terms that the objective of the scheme is to evaluate compliance with condition 20 in a range of wind speeds and directions. That much is uncontentious. There remain two issues however. First, is the submitted scheme to be confined solely with the objective of compliance with acceptable levels of AM; and second, does condition 21 "fall away" as described by Mr Taylor upon the approval in writing of such a scheme? In my judgment, the objective of the scheme is to provide a method of assessment and/or evaluation of AM so as to ensure that AM is contained within acceptable levels. However, when read in the context of the preceding decision letter it is also clear that the inspector intended the scheme to provide a basis for enforcement if required so that the levels of AM measured under condition 20 did not attain the characteristics set out in that condition at A to C inclusive. It follows that, if such characteristics were identified as a result of the measurement carried out, there is nothing in condition 21 that would prevent a scheme from identifying what should be done in that eventuality. Indeed, in the context of the decision letter any scheme should do so. The fact that the condition is worded that "it shall terminate when compliance with condition 20 is demonstrated" envisages that there may be steps within the scheme to provide for that compliance. Whether that compliance is tying the noise emission levels back to condition 16 or by some other means is a matter for the local planning authority to determine in approving any scheme. With such a scheme approved the local planning authority would then have a clear and precise basis for enforcement against a wind farm operator should that be required.
45. Second, although condition 21 refers to the objective of the scheme and says that "it shall terminate" when compliance with condition 20 has been demonstrated, the words are capable of applying to either the condition, or the scheme itself, or part of the scheme. In context it is clear that the scheme is not envisaged to provide for a single complaint but to endure for the life of the planning permission. The assessment methodology may change over time so that a complaint, for example made 5 years after the operation of the wind farm has commenced, may need to be evaluated in relation to the then current but possibly not now anticipated scientific knowledge. Given what the inspector recorded about uncertainties at present and possible future research, it cannot be the case that the condition falls away. The approved scheme is, in those circumstances, envisaged not just to deal with an initial complaint but also with others that may occur in the future during the life of the permitted development. Any approved scheme would have to provide for further submission of appropriate evaluation measures in relation to future complaints."
The grounds of appeal.
"Prior to the commencement of the development hereby permitted details of all proposed engineering works associated with the laying out of golf courses, including the creation of greens, bunkers, tees, ponds or lakes, shall be submitted to and approved in writing by the district planning authority."
"in order that the council may be satisfied as to the details of the proposals in the interests of the visual amenities of the area."
Lord Justice Patten:
"17. The question of implication arises when the instrument does not expressly provide for what is to happen when some event occurs. The most usual inference in such a case is that nothing is to happen. If the parties had intended something to happen, the instrument would have said so. Otherwise, the express provisions of the instrument are to continue to operate undisturbed. If the event has caused loss to one or other of the parties, the loss lies where it falls.
18. In some cases, however, the reasonable addressee would understand the instrument to mean something else. He would consider that the only meaning consistent with the other provisions of the instrument, read against the relevant background, is that something is to happen. The event in question is to affect the rights of the parties. The instrument may not have expressly said so, but this is what it must mean. In such a case, it is said that the court implies a term as to what will happen if the event in question occurs. But the implication of the term is not an addition to the instrument. It only spells out what the instrument means."
Lord Justice Mummery: