“3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such developments should not be approved, except in very special circumstances… ”
“4. Woodborough Park is a farm near the village of Woodborough in Nottinghamshire. The land is open countryside and is within the Nottingham Green Belt. 5. Planning permission for the erection of two 11kW wind turbines was granted on19 August 2010 (reference 2010/0244). These turbines were to have 18 metre high masts with 13 metre diameter rotors. On6 June 2011 the Council granted planning permission for the erection of two ground mounted photovoltaic panel arrays (totalling 9.9kW) as appropriate development in the Green Belt. 6. On22 July 2010 Segen applied for an Environmental Impact Assessment screening opinion in respect of the current proposal. The request enclosed ‘Pre-application information’ which identified the type of turbine and the proposed location. Under ‘possible environmental impacts’ brief comments were made on bats, birds, shadow flicker, noise and the historic environment. It was said that substantial justification would be provided for the proposal in the Green Belt and early consultation would take place “to inform the Environmental Assessment which will accompany the forthcoming planning application”. 7. The Council adopted a screening opinion on30 September 2010 in these terms: “The proposed development involves the installation of one turbine with a hub height of 50 metres and a maximum ground to tip height of 66 metres, in this case therefore the proposal is considered to be “Schedule 2 Development” of the 1999 Regulations. In these circumstances paragraph 33 of circular 02/99 (Environmental Impact Assessment) requires Local Planning Authorities to consider the impacts of the effects of the development in terms of the “selection criteria” set out in Schedule 3 of the Regulations. The selection criteria require consideration of the characteristics of the development, the location of the development and the characteristics of the potential impact. Paragraph A15 of circular 02/99 states that an EIA is more likely to be required for commercial developments of five or more turbines or more than 5mw of new generating capacity. I therefore consider that as the proposed development is for one turbine with a generating capacity of 330kw an EIA would not be required in this instance. Whilst, therefore, the Borough Council consider that an EIA would not be required to be submitted, should a formal planning application be submitted, consideration would need to be given to the appropriateness of the development in this location and whether or not there are special circumstances to justify the development. In addition to this consideration would need to be given to the potential impact of the development on the character of the area, the impact on the visual amenity of the area, the potential noise impact of the proposal on the area, impact on the area as a result of possible flicker from the turbine and the impact on wildlife. I can advise you, in respect to the above, that the site is located within the Green Belt and the landscape in this area is classified as Dumbles Rolling Farmland a sub type of Nottinghamshire farmlands and within the Nottingham Landscape Character Assessment as Woodborough Sloping Farmland. There are a number of residential properties surrounding the site, Woodborough Park Farm, Wood Farm and the residential properties on Georges Lane. I would also point out that a bridle path runs along the ridge line in this area linking Georges Lane with Foxwood Lane. The deciduous woodland, Fox Wood, to the east of the site is a site of important nature conservation and a Scheduled Ancient Monument.” 8. The planning application was submitted on11 May 2011 . The proposal was intended to replace the planning permission for the two smaller turbines. It was accompanied by various documents including an ‘Environmental Appraisal’ which was not described as an Environmental Statement under the EIA Regulations. 9. Local residents formed “Woodborough and Calverton Against Turbines” to object to the application. They instructed a planning consultant and she sent a detailed letter of objection which referred to various matters including the ability to achieve economic benefits by the twin turbine and solar panel planning permissions. The letter proposed draft reasons for refusal on Green Belt, landscape and visual impact, heritage and amenity of recreational user grounds. It also identified other negative impacts including to noctule bats. WACAT also submitted reports from landscape consultants and from noise consultants which were critical of the proposals. 10. The planning application was reported to the Council’s Planning Committee on2 November 2011 . Under “relevant planning history” the report referred to the planning permission for two turbines and the EIA screening decision. 11. The report summarised various consultation responses including: “Urban Design & Conservation Consultant - Objects to the proposed development due to the lack of planning policy on the siting of wind turbines and considers the proposal to be an intrusion into the rural setting around the Conservation Areas. Concerned that should this turbine proposal be approved, it would be difficult to refuse others in similar locations and result in a cumulative impact. Nottinghamshire County Council (Communities) – No planning objection subject to the applicant addressing the impact to bats and cumulative impact, as well as the Borough Council being satisfied that very special circumstances have been demonstrated. Rights of Way Officer – Objects to the proposal and refers to the British Horse Society advice of a 200m buffer zone between wind turbines and bridle paths.” 12. 1125 objections had been received from the public and these were briefly summarised, some under the heading of “Material Planning Issues”
“Non-material Planning Issues • The granting of permission for this application would set a precedent for further turbine development nearby. • The proposed turbine would not generate a significant amount of energy and would be inefficient. • The proposal would only benefit the applicant financially. • The turbine should be sited elsewhere outside of the Green Belt on already degraded landscapes. • ... • There are other alternative methods of producing renewable energy instead of the proposed turbine.” 13. The planning officers accepted that the proposal was inappropriate development in the Green Belt. It would not have an “unduly material impact on the openness of character of the site and wider locality” but would have a “major visual impact” on bridleway users. The County Council was reported as recommending that there be an ecological management plan to “partially mitigate against the impact of the introduction of an industrial feature into a rural landscape”
“Impact on Footpath/Bridle path. As discussed previously, I consider the proposal would result in a visual impact on the recreational users of the Spindle Lane footpath due to the proximity of the proposed turbine to the footpath. ... Whilst accepting that the proposed turbine would be highly visible to the recreational users of the footpath, I consider that with the attachment of conditions relating to an ecology and landscape plan which would facilitate the introduction of further hedgerow planting to partly mitigate against the visual impact as well as conditions stipulating maximum noise limits, I am of the opinion that the proposal would not result in such a great impact as to impede or deter recreational users of the footpath.” 15. In respect of very special circumstances in the Green Belt the report referred to general guidance in Planning Policy Statement 22 on the materiality of the wider environmental and economic benefits of renewable energy proposals and the advice in paragraph 13 of the PPS that “very special circumstances may include the wider environmental benefits associated with increased production of energy from renewable sources”. 16. The officer’s advice continued: “In accordance with the above guidance, therefore, the case for justifying that very special circumstances do exist to overcome other policy objections does not have to cover the issues of whether the proposal is needed or the likely amount of energy to be generated, but should be based around the wider economic and environmental benefits that renewable energy generation brings. In this context, the erection of the proposal would allow the end-user of the energy created, either on the site itself or through it being exported to the National Grid, to use less fossil fuel generated energy, which would result in lower carbon dioxide emissions as well as energy being generated at lower cost. Equally, not granting permission could perpetuate long term reliance on fossil fuels for energy generation at significant financial, in terms of needing to import fossil fuel and exploit increasingly expensive sources, and environmental, in terms of carbon emissions, costs. In relation to environmental benefits, therefore, it is considered that the production of renewable energy and the associated reduction in carbon emissions and improvement to air quality constitutes the very special circumstances necessary to justify inappropriate development within the Green Belt. This approach has been applied by Planning Inspectors in appeal decisions. It is also considered that as the proposal would assist the farm to diversify and be strengthened financially, which in turn would ensure the farm is viable to continue to manage the area, this element of the proposal also demonstrates a wider economic benefit and is considered a very special circumstance. The social benefits put forward by the applicant in regard to the increased educational opportunities are not considered to be a very special circumstance in this instance, however the wording of PPS22 (paragraph 1iv) gives greater weight to environmental and economic benefits and not social benefits.” 17. The report concluded: “... I am satisfied that very special circumstances, both economic and environmental, apply to this proposal and recommend that Members grant planning permission.” ….. 21. The Committee resolved to approve the application by 10 votes to 7. Some issues about conditions and other matters also arose but they are not relevant to the present appeal. “The proposed development involves the installation of one turbine with a hub height of 50 metres and a maximum ground to tip height of 66 metres, in this case therefore the proposal is considered to be “Schedule 2 Development” of the 1999 Regulations. In these circumstances paragraph 33 of circular 02/99 (Environmental Impact Assessment) requires Local Planning Authorities to consider the impacts of the effects of the development in terms of the “selection criteria” set out in Schedule 3 of the Regulations. The selection criteria require consideration of the characteristics of the development, the location of the development and the characteristics of the potential impact. Paragraph A15 of circular 02/99 states that an EIA is more likely to be required for commercial developments of five or more turbines or more than 5mw of new generating capacity. I therefore consider that as the proposed development is for one turbine with a generating capacity of 330kw an EIA would not be required in this instance. Whilst, therefore, the Borough Council consider that an EIA would not be required to be submitted, should a formal planning application be submitted, consideration would need to be given to the appropriateness of the development in this location and whether or not there are special circumstances to justify the development. In addition to this consideration would need to be given to the potential impact of the development on the character of the area, the impact on the visual amenity of the area, the potential noise impact of the proposal on the area, impact on the area as a result of possible flicker from the turbine and the impact on wildlife. I can advise you, in respect to the above, that the site is located within the Green Belt and the landscape in this area is classified as Dumbles Rolling Farmland a sub type of Nottinghamshire farmlands and within the Nottingham Landscape Character Assessment as Woodborough Sloping Farmland. There are a number of residential properties surrounding the site, Woodborough Park Farm, Wood Farm and the residential properties on Georges Lane. I would also point out that a bridle path runs along the ridge line in this area linking Georges Lane with Foxwood Lane. The deciduous woodland, Fox Wood, to the east of the site is a site of important nature conservation and a Scheduled Ancient Monument.” “Urban Design & Conservation Consultant - Objects to the proposed development due to the lack of planning policy on the siting of wind turbines and considers the proposal to be an intrusion into the rural setting around the Conservation Areas. Concerned that should this turbine proposal be approved, it would be difficult to refuse others in similar locations and result in a cumulative impact. Nottinghamshire County Council (Communities) – No planning objection subject to the applicant addressing the impact to bats and cumulative impact, as well as the Borough Council being satisfied that very special circumstances have been demonstrated. Rights of Way Officer – Objects to the proposal and refers to the British Horse Society advice of a 200m buffer zone between wind turbines and bridle paths.” “Non-material Planning Issues • The granting of permission for this application would set a precedent for further turbine development nearby. • The proposed turbine would not generate a significant amount of energy and would be inefficient. • The proposal would only benefit the applicant financially. • The turbine should be sited elsewhere outside of the Green Belt on already degraded landscapes. • ... • There are other alternative methods of producing renewable energy instead of the proposed turbine.” “Impact on Footpath/Bridle path. As discussed previously, I consider the proposal would result in a visual impact on the recreational users of the Spindle Lane footpath due to the proximity of the proposed turbine to the footpath. ... Whilst accepting that the proposed turbine would be highly visible to the recreational users of the footpath, I consider that with the attachment of conditions relating to an ecology and landscape plan which would facilitate the introduction of further hedgerow planting to partly mitigate against the visual impact as well as conditions stipulating maximum noise limits, I am of the opinion that the proposal would not result in such a great impact as to impede or deter recreational users of the footpath.” “In accordance with the above guidance, therefore, the case for justifying that very special circumstances do exist to overcome other policy objections does not have to cover the issues of whether the proposal is needed or the likely amount of energy to be generated, but should be based around the wider economic and environmental benefits that renewable energy generation brings. In this context, the erection of the proposal would allow the end-user of the energy created, either on the site itself or through it being exported to the National Grid, to use less fossil fuel generated energy, which would result in lower carbon dioxide emissions as well as energy being generated at lower cost. Equally, not granting permission could perpetuate long term reliance on fossil fuels for energy generation at significant financial, in terms of needing to import fossil fuel and exploit increasingly expensive sources, and environmental, in terms of carbon emissions, costs. In relation to environmental benefits, therefore, it is considered that the production of renewable energy and the associated reduction in carbon emissions and improvement to air quality constitutes the very special circumstances necessary to justify inappropriate development within the Green Belt. This approach has been applied by Planning Inspectors in appeal decisions. It is also considered that as the proposal would assist the farm to diversify and be strengthened financially, which in turn would ensure the farm is viable to continue to manage the area, this element of the proposal also demonstrates a wider economic benefit and is considered a very special circumstance. The social benefits put forward by the applicant in regard to the increased educational opportunities are not considered to be a very special circumstance in this instance, however the wording of PPS22 (paragraph 1iv) gives greater weight to environmental and economic benefits and not social benefits.” “... I am satisfied that very special circumstances, both economic and environmental, apply to this proposal and recommend that Members grant planning permission.”
“…there is a respectable argument that precedent, the fact that the turbine would not generate a significant amount of energy and would be inefficient, and that it should be sited elsewhere outside the Green Belt, were all factors which were capable of being material planning considerations and material to this application. It is arguable that the officer’s approach that these matters were not material, and that effectively there would be no precedent because each case in the Green Belt would be site specific, was based on a serious misapplication of Green Belt policy in respect of proposals to site wind turbines within the Green Belt.”
“…there is nothing in the case law…that precludes an officer from giving guidance and advice to the Council as to what in substance are the considerations material to the planning application in relation to the specific proposal before the Council. On the contrary, there are considerable advantages if the officer does give such guidance and advice because, if it is soundly based, the decision maker is more likely to focus and to concentrate on what is really important and determinative, rather than be distracted by matters which could, hypothetically, be relevant but which, in the particular case, have no real bearing on the final decision. The process is then likely to be more efficient and the final decision to be more justifiable”
“In these circumstances, it appears to me that, in contrast to Copeland, the advice or guidance given in relation to the specific application under consideration in respect of “precedent” was soundly based – indeed plainly correct…”
“… permission for this application would set a precedent for further turbine development nearby.”
“The turbine should be sited elsewhere outside of the Green Belt on already degraded landscapes”
“There are other alternative methods of producing reasonable energy instead of the proposed turbine.”
“In short “alternative sides” or “alternative means of generating energy” were simply irrelevant as far as the present application was concerned.”
“…I wish to raise concerns as to whether [there] is sufficient justification particularly in light of the extant planning permission for the two turbines which would enable the farm’s needs to be met….I would therefore request that your Council seeks further justification and demonstration of very special circumstances from the applicant as to why the proposed size and scale of turbine should be sited within this Green Belt location.”
“The applicant should explain why other, less intrusive forms of renewal energy provision are not proposed. Alternatives should be comparable in terms of the energy produced and cost…the applicants should explain why they have decided not to proceed with the turbines granted under [the extant permission] so that the benefits and impacts of the two schemes can be compared …”
“The proposed turbine would not generate a significant amount of energy and would be inefficient.”
“(iv) the wider environmental and economic benefits of all proposals for renewable energy projects, whatever their scale are material considerations that should be given significantweight in determining whether proposals should be granted planning permission. … (vi) small scale projects can provide a limited but valuablecontribution to overall outputs of renewable energy and to meeting energy needs both locally and nationally. Planning authorities should not therefore reject planning applications simply because the level of output is small. (All emphases added by the Judge)”
“Given the relevant planning policies in this context, the officer was entitled, and could have been reasonably expected, to advise the Council that it should not take into account, in deciding this specific application for planning permission, the likely levels of output of energy from this turbine, and, in particular, should not consider whether a higher level of output might be achieved at some other (unspecified) location”
“If the judge concludes that the matter was ‘fundamental to the decision’ or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid”