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Ignore objectors at your peril, developer told by court

A recent High Court judgment reminds developers of the danger of ignoring planning objections, even those from seemingly unthreatening third parties.

Gloucestershire renewables firm Ecotricity, famous not only for the marital complications of its former-hippie founder, Dale Vince, is also a prominent developer of wind farms.  But its plans for a two-turbine scheme in Norfolk, considered at a six-day inquiry in late 2013, have been frustrated by a third party objector who didn’t even attend the hearing.

The objector was Shipdham Flying Club, based at a small, former WWII airfield.  On two occasions before the inquiry the Club wrote, first to the council, then to the Planning Inspectorate, to object to Ecotricity’s proposal.  Having warned that the turbines would cause a danger to low flying aircraft in a so-called ‘choke point’ location, the Club subsequently took no further part in proceedings.

Ecotricity, who responded to the first letter by writing to the council, ignored the second.  The aviation issue then received no further mention during the case.

When Ecotricity saw that their appeal had been dismissed because of reasons that included concerns about flight safety they went to court.  It was unfair, they said, to accept the Flying Club’s arguments, because they had not been presented at inquiry, and were not shared by the national aviation authorities, or even nearby Norwich International Airport.

The judge was unsympathetic.  It should have been obvious to Ecotricity that the inspector would have to deal with the Club’s objection, he said, and it should have called expert evidence, or produced a written report, in response.  Whether its failure to do so was an oversight, or a tactical decision that went badly wrong, the company had only itself to blame.

This judgment acts as a useful reminder to developers that it is important to respond comprehensively to planning objections, however benign they may appear.  Whilst, clearly, it would have been helpful for the inspector to raise his concerns about aviation safety at the inquiry, there was no obligation to do so.  On the other hand, because the objection was on the file, fairness required that he dealt with it.  And without any evidence to challenge the Club’s case, he was faced with little alternative but to accept it.

Case: R (Ecotricity) v SoSCLG [2015] EWHC 801 (Admin)