High Court Challenge to Planning Decision
Boston, Lincolnshire / High Court, London
In September 2012, planning permission was given by Boston Borough Council for the installation of a single micro-scale wind turbine with dimensions of 15 metres to the hub and a rotor diameter of 5.5 metres leading to a maximum tip height of 20.5 metres. The consent included a planning condition to regulate noise at the nearest residential property. The turbine was erected very soon after the planning permission was granted but the Council received complaints about noise from the nearest neighbour soon after commencement of operation. The Council initiated an investigation which showed that noise from the turbine complied with the planning conditions. Following this, the neighbour filed a challenge to the legality of the consent on the basis that the lack of precision in the planning condition was sufficient to make it unenforceable.
We were commissioned by Boston Borough Council to review the material submitted by the neighbour's solicitors with a view to defending the planning condition imposed by the Council and hence the planning consent given. We found that that, although it required a certain amount of interpretation, the intent of the planning condition was perfectly clear, in line with planning consents which had been applied on similar developments elsewhere and perfectly capable of being used by noise professionals such as ourselves in determining whether the development was in breach or not and a Witness Statement by Andy McKenzie was submitted on this basis. The case was scheduled to be heard in the High Court in London on 21st October and a Statement of Agreement and Disagreement was jointly submitted by Andy and the neighbour's solicitor’s noise expert who both presented their evidence in court.
After hearing the evidence the Judge dismissed the case not only because he considered that 'there might be conditions where their terms are so hopelessly vague or adjectival that they are not capable of sensible ascertainable meaning, but this condition is not one of them '. He also considered that, because the claimants had in fact sold the property earlier in 2014, and also withdrawn an offer to settle the case on the understanding that no claim for costs would be bought by the Council, this added weight to his decision.