High Court quashes Milton Keynes Wind SPD

High Court quashes Milton Keynes Wind SPD


The Administrative Court has given judgment in R (RWE Npower Renewables Ltd) v. Milton Keynes Council [2013] EWHC 751 (Admin). Milton Keynes Council adopted a Supplementary Planning Document which, among other things, set minimum separation distances between wind turbines and residential properties, calculated by reference to turbine height. To comply with the SPD, a 125m turbine would have to be sited at least 1,217m from the nearest dwelling – unless all inhabitants of dwellings closer than that gave their agreement. The Council’s adopted development plan provides for turbines to be sited “at least 350m” from dwellings.

The judgment, by John Howell QC sitting as a Deputy Judge, is complex, running to some 218 paragraphs plus an Annex. But in short, the claim succeeded on a single ground, namely that the minimum separation distances set by the SPD were in conflict with the development plan, breaching reg. 8(3) of the Town and Country Planning (Local Planning) (England) Regulations 2012. Other elements of the SPD policy, including guidance on separation distance between turbines and footpaths/bridleways, were not in conflict with the plan (since the SPD did not tie grant or refusal of planning permission to satisfaction of these criteria). But the Deputy Judge could not be sure the Council would have adopted an SPD containing these policies alone, and felt unable to “edit” the SPD’s supporting text to remove those parts relating solely to the residential separation distances. So he quashed the whole SPD, leaving the Council to decide how to proceed.

The other key findings were:

  • The question of “conflict” under reg. 8(3) attracted a Wednesbury test – could a reasonable council conclude that the SPD was not in conflict with the adopted plan? It was not a pure question of interpretation for the court.
  • The provisions of the 2012 Regulations defining which documents amount to SPDs and which are Development Plan Documents were extremely hard to interpret. A document which could have been adopted as SPD under the earlier 2004 Regulations cannot be an SPD under the 2012 Regulations – a result which might well have been unintentional. The Wind SPD was, however, properly categorised as an SPD under these provisions.
  • Thus the question whether the document should have been adopted as a DPD (and therefore subject to independent examination in public and assessment of its “soundness”) rather than as an SPD was not one for the Council’s discretion. However, if that were wrong and the Council did have a discretion, the Deputy Judge rejected the Claimant’s contention that the Council had wrongly “circumvented” the examination procedure by taking the SPD route. The court was not persuaded that the SPD overstepped the limited role envisaged by Government guidance on plan-making (including the guidance in the NPPF and the DCLG Plan-Making Manual).
  • In adopting the SPD the Council had taken proper account of substantive national planning policies – currently the NPPF, NPS EN-3 and the Companion Guide to former PPS22 – which give strong encouragement to wind energy. The wording of the SPD did not prevent the Council from assessing the acceptability of visual and noise impacts of wind turbines on a case-by-case basis: the policy merely indicated when planning permission would be granted, not when it would be refused.

This might not be the last word – the Deputy Judge gave the Council permission to appeal.

Gordon Nardell QC and James Burton appeared for RWE; Richard Harwood QC appeared for the Council.

You can read the judgment here.

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