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Hulme, R (on the application of) v Secretary of State for Communities & Local Government.

Country/Territory
United Kingdom
Type of court
National - higher court
Date
May 26, 2011
Source
UNEP, InforMEA
Court name
Court of Appeal
Seat of court
London
Judge
Mummery Elias and Patten.
Reference number
[2011] EWCA Civ 638
Language
English
Subject
Air & atmosphere, Energy
Keyword
Land-use planning Noise pollution Protection of habitats Renewable energy Noise standards Energy conservation/energy production Vehicle noise Noise emission Aircraft noise
Abstract
The Court of Appeal in Hulme v Secretary of State [2011] EWCA Civ 638 considers the interpretation of conditions about turbine noise attached to a planning condition and shows the Court adopting a more creative, purposive approach to interpretation than has previously been the norm. Whilst it was a planning permission for a wind farm which gave rise to this litigation, the point in issue is of wider interest and potentially applies to all types of development. The Court was concerned with two conditions, the first of which required measurements of noise attributable to ‘blade swish’ in the event of a noise complaint being received by the LPA, and the second prohibited the generation of electricity to the grid until the LPA has approved a scheme providing for the measurement of greater than expected ‘blade swish’ noise, the object of this condition being to evaluate compliance with the preceding condition. What these conditions did not do was to prohibit ‘blade swish’ noise exceeding any specified or measured levels. In giving the leading judgment, Elias LJ reminded himself of the legal principles to be applied to the interpretation of conditions: 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. 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 Bucks CC [1961] AC 636, 678 (an application of the benevolent construction principle), and d) There can be no ‘implied’ conditions (per Widgery LJ in Trustees of Walton on Thames Charities v Walton and Weybridge DC [1970] 21 PMCR 411 at 497). In the judgment there is an obligation on the developers to comply with the ‘blade swish’ levels specified in the first of these two conditions and that obligation will run for the duration of the planning permission. That obligation can be enforced by the planning authority in the normal way. Accordingly, the principal ground of appeal failed, although he was prepared to accept that that the enforcement mechanism does not operate through the scheme adopted under the second condition
Full text
COU-159698.pdf