On June 18th Greg Clark, Secretary of State for the Department for Communities and Local Government, issued a ministerial statement with the intention of changing the planning process for wind turbines.
Following review of that statement DC21’s opinion is that the ministerial statement holds very little weight in planning terms. This view is also being borne out by certain LPAs. Until planning policy is changed in the correct manner, the existing planning policy and framework should continue to be applied.
Statue requires that the development plan is considered first and decisions that are contrary to this should only be taken if material considerations are of such weight so as to outweigh the statutory development plan. The courts are also clear that Government planning policy should be accorded more weight than ministerial statements which in themselves are not and cannot be Government policy, particularly as they have not been subject of any form of consultation. The Framework makes clear that it is the sole source of Government Planning Policy.
There are clear contradictions between the Framework, the development plan and the ministerial statement which is now backed by changes to the Planning Practice Guidance.
It is DC21’s view is that a decision made based on lack of public support or due to the turbine not being in an area designated for such development would be contrary to section 38(6)1 and to the Framework – which has not been altered and remains the Government’s national planning policy. To do so would, in our view, open any decision to the prospect of a successful judicial review as there is no lawful basis for giving a ministerial statement weight which would elevate it above the development plan and which would ignore the Framework.
The correct way to deal with this from Government would be to amend the Framework and end the total confusion the ministerial statement has caused both in terms of appeals and Local Plan examinations.
1 – Section 38(6) of the Planning and Compulsory Purchase Act 2004