Tegni Cymru Cyf v The Welsh Ministers & Anor [2010] EWHC 1106 (Admin)

[2010] EWHC 1106 (Admin)Case No CO/15904/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
SITTING AT MOLD CROWN COURT
Venue Birmingham Civil Justice Centre
33 Bull Street
Venue Birmingham B4 6DSDate 20/05/2010
Before
MR JUSTICE WYN WILLIAMS
Between
TEGNI CYMRU CYFClaimant1) THE WELSH MINISTERSDefendants2) DENBIGHSHIRE COUNTY COUNCILDefendant
Mr William Norris QC & James Burton (instructed by Eversheds LLP) for ClaimantMr James Strachan (instructed by Treasury Solicitor) for First Defendant for The Second Defendant did not appear and was not representedHearing Hearing date: 28 April 2010
Judgment

Introduction

[1]These proceedings are brought under section 288 Town and Country Planning Act 1990. The Claimant seeks an order quashing a decision dated 18 November 2009 made by an Inspector duly appointed by the First Defendants whereby he dismissed the Claimant’s appeal against a refusal by the Second Defendant to grant planning permission for what is known, in summary, as a wind farm at a site at Gorsedd Bran, Nantglyn, Denbighshire.[2]The Claimant advances a number of grounds upon which it is said the decision should be quashed. The primary ground of challenge is that the Inspector reached conclusions about the visual impact of the wind farm and the noise associated with its operation which no reasonable Inspector would have reached. Additionally, however, the Claimant alleges that the Inspector’s decision should be quashed because he failed to give sufficient reasons for his conclusions upon important issues and because the Claimant was the victim of procedural unfairness in the conduct of the appeal.

Relevant history

[3]On 13 May 2007 the Claimant submitted to the Second Defendant an application for planning permission to construct 13 wind turbine generators together with associated infrastructure. The application sought permission to construct generators up to 125 metres in overall height; it predicted that the overall capacity of the generators would be between 32 and 39.5 MW and that the generators would power approximately 23,896 homes.[4]The site chosen for development was an upland area within Clocaenog Forest. In a “Statement of Common Ground” prepared by the Claimant and Second Defendant for the purposes of the appeal to the Inspector the application site was described as follows:- “The Appeal Site is located in an upland area of Denbighshire approximately 10.5km south west of Denbigh and 14.5km west of Ruthin. The northern tip of Llyn Brenig is 1km to the south. The nearest villages to the proposed wind farm are Bylchau and Nantglyn which are located approximately 2.5km and 3km north and north east of the nearest turbines (respectively). Properties within the smaller dispersed hamlets of Waen are located between 1.5km and 2.6km from the nearest turbine. To the north of the Appeal Site is open moorland beyond which is the A543 which links Denbigh to the A5 in the south. The Appeal Site is bounded to the east by upland farmland, to the south by an unclassified road linking Nantglyn to the B4501 and to the west by further coniferous plantation, beyond which is Llyn Bran reservoir. The Appeal Site is approximately 290 ha in area and is situated at an elevation between 400m and 518m Above Ordinance Datum (“AOD”) which is the highest point in the immediate vicinity. However the turbines forming part of the proposed wind farm would be located below the 500m contour. The Appeal Site is presently covered in coniferous forest, the felling of which will be necessitated by the construction of a proposed wind farm.”[5]The application for planning permission was accompanied by an environmental statement in accordance with the Town & Country Planning (Environmental Impact Assessment) Regulations 1999 and supported by a detailed planning statement.[6]Following a comprehensive consideration of the application the Second Defendant’s planning officer recommended that planning permission should be granted. However, on 23 January 2008 the Planning Committee of the Second Defendant resolved to refuse the application.[7]In due course the application was referred to and considered by the Second Defendant’s Full Council. The Second Defendant’s planning officer again recommended that the application should be granted. However on 26 February 2008 the Full Council resolved to refuse permission.[8]On 2 April 2008 the Second Defendant issued a written notice refusing planning permission and specifying four reasons for refusal. Ultimately, the Second Defendant relied only upon reasons 1 and 2 when resisting the claimant’s appeal to the Inspector. They were:- “1. The erection of 13 turbines of 125 metres height in a prominent ridge top location would have an unacceptable impact on the character and appearance of the landscape, including views into and out of the Clwydian Range Area of Outstanding Natural Beauty and the Snowdonia National Park, and would contribute to an unacceptable cumulative visual impact adversely affecting views across the Denbigh Moors towards Snowdonia from the Clwydian Hills and Offa’s Dyke National Trail, and adversely affecting the community of Nantglyn by creating an arc of turbines around the village, also giving rise to harm to the enjoyment of the local landscape for recreational and tourist uses, in conflict with Policies MEW 10iii, vii and viii, MEW 8, GEN 6ii, iii and iv, ENV 2, and STRAT 7iii of the Denbighshire Unitary Development Plan, and guidance on the siting of turbines in the Council’s Interim Planning Guidance Note NO1-On Shore Wind Farms. 2. The operation of the turbines at Gorsedd Bran is considered likely to lead to noise levels which in itself, and cumulatively with the noise from turbines on nearby wind farms, would have an unacceptable impact on the local community, including the amenities of occupiers of residential properties in the locality, in conflict with Policies MEW 10iv, MEW 8, GEN 6v, ENP 1iii, and STRAT 7v of the Denbighshire Unitary Development Plan.”[9]On 13 May 2008 the claimants submitted an appeal to the First Defendant against the Second Defendant’s refusal of planning permission. As I have said the First Defendant appointed an Inspector to conduct and determine the appeal. The Inspector appointed was Mr Stuart Wild; it seems clear that he had a wealth of relevant experience.[10]The appeal was conducted by way of a public inquiry. The inquiry took place between 5 October and 9 October 2009. As was to be expected the Claimant presented a detailed case in support of its appeal. Expert witnesses were called to present evidence in support of the appeal and also to counter the objections which had been raised against the proposed development. In particular, evidence was adduced from Mr Philip Roden and Mr Malcolm Hayes; Mr Roden was suitably qualified to give expert evidence upon the impact of the wind farm upon the landscape and visual amenity; Mr Hayes was suitably qualified to give expert evidence upon the noise likely to be generated when the wind farm was in operation.[11]The Second Defendant adduced expert evidence upon the effect of the proposed development upon the landscape and visual amenity from Mr Iwan Evans. It did not rely upon oral expert evidence upon the issue of noise. However, it put in written evidence from a noise expert, Mr. Bowdler and it relied upon the evidence of Councillor Paul Marfleet which related to the issue of noise amongst others. Many of the local residents who presented evidence to the Inspector complained that the likely level of noise from the proposed development would adversely affect their amenity.[12]The Inspector did not undertake an accompanied inspection of the site of the proposed development. No complaint is made about this omission. That is not surprising since it is clear that prior to and during the course of the inquiry the Inspector made many unaccompanied visits to the location of the application site itself and to various other places from which the site could be seen and from which, allegedly, the turbines would be heard when in operation.[13]By the time of the public inquiry a wind farm was in operation upon a site at Tir Mostyn. Further, planning permission had been granted (by the Second Defendant at Full Council) for a wind farm at Brenig East (“Brenig”). The sites of those developments were close to the site at Gorsedd Bran. It was common ground at the public inquiry that the actual development at Tir Mostyn and the consented development at Brenig should be taken into account when assessing the impact of the Claimant’s application upon the landscape, visual amenity and noise levels. The Claimant presented substantial evidence to the Inspector upon the issue of “cumulative impact”.

The Law

[14]In determining an application for planning permission a local planning authority “shall have regard to the provisions of the development plan, so far as material to the application, and to any other material consideration” (section 70(3) Town & Country Planning Act 1990). An Inspector on appeal must adopt the same approach – see section 79(4) of the same Act.[15]Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that; “If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”[16]Section 288 of the 1990 Act permits any person aggrieved by any order to which the section applies to question the validity of the order on the ground “i. that the order is not within the powers of this Act, or ii. any of the relevant requirements [of the Act] have not been complied with in relation to that order…. ” On an application under section 288 the court may quash the order in question “If satisfied that the order….in question is not within the powers of [the] Act, or that the interests of the [Claimant] have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it….” (subsection 5)[17]There is no dispute but that the Claimant is a person aggrieved for the purposes of section 288 of the Act. Further the First Defendant accepts that if the Claimant establishes any of its main grounds of challenge the Inspector’s decision should be quashed with the consequence that the Claimant’s appeal against the Second Defendant’s refusal of planning permission can be considered afresh.[18]There was a good deal of common ground about the legal principles which I should apply in reaching a decision upon whether to quash the Inspector’s decision. Many of those principles are conveniently drawn together in the judgment of Forbes J in West Midlands International Airports Ltd v The Secretary of State for Communities & Local Government & Others [2008] EWHC 2309 (Admin). I quote:
“8. An application under section 288 of the 1990 Act is not an opportunity to reargue the merits of the failed planning appeal. Matters of judgment are for the decision-maker, unless the judgment reached is indefensible; see the judgment of Sullivan J in Newsmith Stainless Ltd v Secretary of State forEnvironment, Transport and the Regions (2001) EWHC Admin74 (hereafter “Newsmith Stainless”), where he stated the principle in the following terms of paragraph 6 to 8; “6. An application under section 288 is not an opportunity for a review of the planning merits of an Inspector’s decision. An allegation that an Inspector’s conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits. “6. An application under section 288 is not an opportunity for a review of the planning merits of an Inspector’s decision. An allegation that an Inspector’s conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits. 7. In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for the applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example, is the building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable. 8. Moreover, the Inspector’s conclusions will invariably be based not merely on the evidence heard at an inquiry or an informal hearing, or be contained in written representations, but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment faces a particularly daunting task….” 9. In order to have regard to a policy, the decision-maker must have interpreted it properly. If the decision-maker fails properly to understand the policy, then the decision is as defective as if no regard had been paid to the policy: see Gransden (EC) & Co Ltd v Secretary of State for the Environment [1986] JPL 519, per Woolf J. However, it is important to bear in mind that the meaning and application of planning policy is a matter for the decision-maker, provided that the meaning is one that can be properly given to the policy in question: see Cranage PC & Others v First Secretary of State & Others [2004] EWHC 2949 (Admin). 10. When weighing up evidence in a planning decision, the Inspector and/or the Secretary of State is not bound to accept the evidence of expert witnesses, even when there is no contrary evidence: see Kentucky Fried Chicken [GB] v Secretary of State for the Environment [1977] 245 EG 332, where Lord Widgery CJ stated as follows: “…..counsel………(submitted)………that the appellants having called high-level experts who had expressed opinions about this, the Inspector, without any evidence to contradict those opinions, was bound to accept them. That just is a complete and total fallacy. The Inspector (who is a man of experience and, above all, specialised qualifications, who is sent to assess a problem of this kind) is supposed to use his own knowledge and, if I may say so, commonsense as well. He is intended to use his commonsense and he is not bound to accept the evidence of experts. It is exactly the same situation that justices and juries find themselves in when experts of great distinction go into the witness box before them. The Inspector is no more bound to accept the evidence of the experts than are they.” 11. So far as concerns the adequacy of the reasons to be given for planning decisions, the reasons must be understood in the context of a decision written for knowledgeable parties and should enable the reader to know what conclusions the decision-maker has reached on the principal controversial issues in dispute: see South BucksDistrictCouncil v Porter (No 2) [2004] 1WLR 1953 at paragraph 35, where Lord Brown summarised the law in the following terms: “36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inferencewill not readily be drawn. The reasons need refer only to the main issues in dispute, not to every material consideration. They should enable the disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how a policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
[19]Both in the written Skeleton Argument presented on behalf of the Claimant and in his oral submissions, Mr Norris QC advances the proposition that certain planning policies contained within a policy document entitled “Planning Policy Statement 22: Renewable Energy” and passages within a document entitled “A Companion Guide PPS 22” were material considerations for the Inspector determining the Claimant’s appeal. He makes the same submission about policies within a policy document entitled “PAN 45 (Revised 2002): Renewable Energy Technologies.”[20]Planning Policy Statement 22 is a document published by the Office of the Deputy Prime Minister in relation to renewable energy. Its opening words make it clear that planning policy statements (PPS) set out the Government’s national policies for different aspects of land use planning in England. It continues by making it clear that the policies contained within PPS 22 “will need to be taken into account by regional planning bodies and the Mayor of London in the preparation of regional spatial strategies (or the Spatial Development Strategy in London), and by local planning authorities in the preparation of local development documents.” The introduction to PPS 22 also makes clear that the policies within the document may be material to individual planning applications. Nothing within PPS 22 suggests that it is intended to be applicable in Wales or, for that matter, Scotland.[21]The Companion Guide says in terms (see paragraph 1.2) that PPS 22 and the Companion Guide “are intended to encourage appropriate development of further renewable energy schemes, throughout England.”[22]PAN 45 is a policy document issued by the Scottish Executive. It is clearly written on the basis that it applies to Scotland only although it does not say that expressly.[23]Mr Strachan submits that the policies relied upon by the Claimant which are contained within these policy documents were irrelevant to the Inspector’s decision. In summary, he submits that PPS 22 is expressed to apply only to England (notwithstanding that it is issued by a Minister of the UK Government) and planning policy documents issued by the Scottish Executive can have no bearing on decision-making in Wales. It follows, no doubt, that he would accept that policy documents issued by the Welsh Assembly Government have no relevance to planning applications to be determined in England or Scotland.[24]Mr Norris QC does not rely upon any decided authority in support of his submissions on this issue. The basis for his claim, however, is the submission that the logic underpinning PPS 22 and PAN 45 is identical to the logic underpinning policy documents on renewable energy issued by the Welsh Assembly Government.[25]It may very well be that many of the principles underpinning the policy documents issued in England, Scotland and Wales in respect of renewable energy are identical or very similar. In my judgment, however, that is no basis for concluding that the policy documents issued in respect of one of those countries is a material consideration in respect of a planning application to be determined in another. It is often the case that the UK government publishes policy documents in respect of planning issues which are expressed to apply in both England and Wales. Draft Overarching National Policy Statement for Energy ((EN-1) and Draft National Policy Statement for Renewable Energy Infrastructure (EN-3) are good examples. (I say nothing about the position as it affects Scotland since I am not familiar with it). In circumstances where policy is intended to apply in England and Wales the policy document says so: if it does not say so expressly it is obvious from its terms that this is its effect. I can see no basis for a conclusion that a policy document expressed to apply to England albeit issued by the UK government becomes a material consideration in a planning application to be determined in Wales. Further, it cannot be the case, in my judgment, that a policy document issued by the devolved government in Scotland could be a material consideration either in Wales or, for that matter, in England.[26]I do not accept that the Claimant can rely upon PPS 22, the Companion Guide to that PPS or PAN 45 so as to seek to allege that the Inspector reached conclusions which no reasonable Inspector would reach on the evidence that was adduced in this case. Further, and for the avoidance of any doubt, I do not accept that these documents were material considerations to be taken into account by the Inspector when reaching his decision on the appeal. I accept Mr Strachan’s submission that the documents were irrelevant.[27]I am fortified in this conclusion, at least to some extent, because the Claimant did not rely upon these documents before the Inspector. Nothing in the witness statements adduced before the Inspector suggested that the Claimant was relying upon PPS 22, the Companion Guide or PAN 45. There is no reference to these documents in Mr. Trinick’s closing submissions on behalf of the Claimant.[28]Three other issues of law arise, at least potentially. As I have said, the Claimant alleges that it was the victim of procedural unfairness at the inquiry. Further, Mr Norris QC submits that the Inspector failed to appreciate two important principles in reaching his decision; a) the principle of consistency in decision-making and b) a principle described by Mr Norris QC as “the base line principle”.[29]There can be no doubt that there is a duty upon an Inspector to conduct an inquiry in a manner which is procedurally fair. I am also prepared to accept that in appropriate cases there is a duty to determine issues which arise in one planning appeal consistently with how those issues were determined in another appeal when the factors which are relevant to the determination are identical or even perhaps very similar. I am much more dubious about whether there is a principle of law which equates to Mr Norris’s base line principle. In any event issues such as procedural fairness, consistency and the base line principle can only be considered in the light of the relevant facts and, accordingly, I propose to deal with these issues to the extent necessary in a later section of this judgment.

The Decision Letter

[30]In paragraph 5 of the decision letter the Inspector identifies the main issues in the appeal as being the visual effects of the proposal both within the locality and from more distant views and the effects of noise on the amenity of residents within the locality. No one has suggested that this appraisal was wrong in any way.[31]In paragraphs 6 to 8 the Inspector identifies relevant national and local policies. He makes specific references to two policy documents – Technical Advice Note 8 (TAN8) and the Denbighshire Unitary Development Plan.[32]TAN8 provides technical advice to supplement the policy set out in Planning Policy Wales (PPW) and the Ministerial Interim Planning Policy Statement (MIPPS) on renewable energy. It is intended to be read in conjunction with those documents. The documents taken together are to be taken into account by local planning authorities in Wales in the consideration of unitary development plans; the documents may also be material to decisions on individual planning applications and appeals and are intended to be taken into account by the Welsh Assembly’s Planning Decision Committee when taking decisions on called-in planning applications and by Planning Inspectors in the determination of appeals in Wales. The Denbighshire Unitary Development Plan is the development plan for the purposes of section 38(6) of the Planning and Compulsory Purchase Act 2004.[33]In paragraphs 9 to 19 of his decision the Inspector deals with “landscape and visual effects.” In paragraph 9 he deals with the impact of the wind farm upon landscape character and concludes that the impact is not objectionable. Paragraphs 10 to 19 concentrate upon visual effects. In paragraphs 13, 14 and 15 he considers the visual impact of the wind farm for those residences which are closest to it and/or most likely to be affected by it. He makes this assessment on the basis that some adverse visible impact is inevitable and, in effect, should be tolerated (see paragraph 12).[34]In paragraphs 20 to 23 the Inspector considers the issue of noise. His paragraphs 21 to 23 are particularly important in the context of the claimant’s challenge. They read as follows:- “21. Turning to the more general effects of noise on the amenity of local residents I have no doubt that these turbines could, with the suggested conditions, operate within or at the level suggested in ETSU 97. These are the standards normally applied in Wales, however they are for guidance and are not absolute values. The problem is that those noise levels do not mean that the turbines cannot be heard. Local residents gave a clear account of the noise from the existing turbines which they currently experience. Some of the descriptions may have been a little colourful but they do indicate a level of nuisance which is experienced and which would not normally trigger a breach of the planning conditions on Tir Mostyn.22. The experience of the noise is affected by the wind direction. On my visits in the area on the Thursday and Friday I experienced the difference as a result in the change of the wind direction. On the Thursday the wind was blowing towards the turbines from the dwellings in the valley opposite and I could not hear them. On the Friday the wind was blowing in the opposite direction and I could hear the turbines in a variety of locations when there was no other noise source. The consented Brenig turbines together with any at Clocaenog generally lie to the south of most of the neighbouring dwellings in the valley and to the south west of Nantglyn village centre. This means that any additional cumulative noise impact would be experienced when the wind blows from a southerly direction.23. Gorsedd Bran lies to the west and south west of the dwellings most affected by Tir Mostyn noise. This means that the prevailing wind would introduce additional noise to the same dwellings when they might currently expect not to hear the existing turbines. This would significantly increase the general noise nuisance experienced by a significant number of local residents. This cumulative increase in noise, whilst likely to be within ETSU 97 levels, would result in a level of harm which would conflict with UDP Policy MEW 10 criteria(iv).”[35]The Inspector sets out his overall conclusions in paragraph 29. He concludes that the proposal would be in serious conflict with the appropriate UDP Policy (identified as MEW 10) and the benefits of the provision of renewable energy would not outweigh the harm identified.[36]As is clear from the Inspector’s concluding paragraph his view is that the objections taken together justify the refusal of planning permission. The decision letter does not suggest that any one of the grounds of objection standing alone would be sufficient to justify the refusal of planning permission.

Relevant Planning Policies

[37]In paragraph 7 of his decision letter the Inspector identified TAN 8 as being the national policy most relevant to this case. It is necessary to describe some of its guidance in a little detail. First, TAN 8 advises that large scale on-shore wind development (defined to mean developments with generating capacity over 25 MW) should be concentrated into particular areas defined as Strategic Search Areas (SSAs). Seven such SSAs are shown within the Advice Note. One such SSA is designated within Clocaenog Forest. The indicative capacity for the whole area identified at Clocaenog Forest is 140MW. The SSA boundaries within TAN 8 are “at a “broad brush” scale”. The Advice Note recognises that not all of the land within SSAs may be technically, economically and/or environmentally suitable for major wind power proposals.[38]Annex C of TAN 8 contains much technical information relating to renewable energy technologies. In terms, however, one of its purposes is to contribute to the development control process (see paragraph 1.1). Paragraphs 2.14 to 2.16 contain important guidance in relation to the noise which may be generated by wind farms. The relevant parts of those paragraphs are as follows:- “2.14 Well designed wind farms should be located so that increases in ambient noise levels around noise-sensitive developments are kept to acceptable levels with relation to existing background noise. This will normally be achieved through good design of the turbines and through allowing sufficient distance between the turbines and any existing noise-sensitive development. Noise levels from turbines are generally low and, under most operating conditions, it is likely that turbine noise would be completely masked by wind-generated background noise. There are two quite distinct types of noise source within a wind turbine – the mechanical noise produced by the gear box, generator and other parts of the drive train and the aerodynamic noise produced by the passage of the blades through the air. There has been a significant reduction in mechanical noise since the early 1990s so the latest generation of wind turbines are much quieter than those first installed in Wales. Aerodynamic noise from wind turbines is generally unobtrusive – it is broad-band in nature and in this respect similar to, for example, the noise of wind in trees. 2.15 Wind generated background noise increases with wind speed, and at a faster rate than the turbine noise increases. The noise of the wind farm is therefore more likely to be noticeable at low wind speeds. Varying the speed of the turbines in such conditions can, if necessary, reduce the sound output from modern turbines. 2.16 The report, “the Assessment and Rating of Noise from Wind Farms” (ETSU-R-97), describes a framework for the measurement of wind farm noise and gives indicative noise levels calculated to offer a reasonable degree of protection to wind farm neighbours, without placing unreasonable restrictions on wind farm development or adding unduly to the costs and administrative burdens on wind farm developers or planning authorities. The report presents the findings of a cross-interest Noise Working Group and makes a series of recommendations that can be regarded as relevant guidance on good practice.”[39]Annex D to TAN 8 contains guidance both relating to noise and visual impact. Paragraph 3.4 of this Annex suggests that 500 metres may be an appropriate separation distance between a wind turbine and residential property to avoid unacceptable noise impacts. However the same paragraph makes it clear that this limit should not be applied in a rigid manner. Section 6 of Annex D contains detailed guidance upon assessing the visual impact of a wind farm and its impact upon the landscape. Section 8 contains supplemental information on cumulative landscape and visual impact. During the course of oral submissions in particular, Mr Norris QC drew my attention to passages within those sections but for reasons which will become clear I do not think it necessary to set out the extracts to which I was referred.[40]Policy MEW 10 of the Denbighshire Unitary Development Plan deals, specifically, with wind power. It is in the following terms:- “Wind turbines or wind farms, including any ancillary associated developments, will be permitted provided that: ….iii) the proposal will not unacceptably harm the character and appearance of the landscape especially the AONB, AOB, LLA’s, Historic Landscape or the Snowdonia National Park; iv) the proposal does not lead to unacceptable noise levels to residential amenity in the surrounding areas; …. vii) the proposal would not lead to an unacceptable cumulative visual impact in an area where zones of visibility overlap, particular attention would be paid to the potential effects of a proliferation of such developments in any one area; viii) the proposal does not cause unacceptable harm to the enjoyment of the landscape for recreational and tourism purposes; ….”[41]During the course of the inquiry many other policies of the Unitary Development Plan were debated but it is common ground that the Inspector was entitled to treat Policy MEW 10 as the one by which he should judge the acceptability of the development proposal.

Grounds of Challenge and Discussion

[42]By ground 1 of its Details of Claim the Claimant asserts that the Inspector’s decision about the visual impact of the proposed development upon residential amenity is unreasonable. Mr Norris QC’s “base line principle” is central to this assertion. In summary, his analysis is as follows. The appeal site lies within an SSA identified in TAN 8. The boundaries of the appeal site have been carefully chosen so as to minimise environmental impact. He accepts that the proposed development impacts, to some extent, upon the visual amenity of residential occupiers but he submits that some adverse impact upon visual amenity is an inevitable consequence of the development which should not lead to its rejection given its location within an SSA and the broader policy considerations which favour the grant of planning permission for wind farms within such locations. Mr Norris submits that the “acceptable” impact on visual amenity represents a base line; it is only if the impact, properly considered, goes beyond that base line that a reasonable Inspector would be entitled to treat the impact as a reason for refusing planning permission. In this case, submits Mr Norris, the evidence before the Inspector was such that no reasonable Inspector could conclude that the impact upon visual amenity for residential occupiers was unacceptable.[43]In making these submissions, inevitably, Mr Norris relies upon the distance between the houses which are nearest to the proposed development and the development itself. The nearest property is at least 630 metres from the development; many of the other properties considered are substantially further.[44]Mr Strachan submits that there is simply no basis upon which I can conclude that the Inspector's view upon the impact of the proposed development upon visual amenity of residential occupiers was unreasonable. He submits, with considerable force, that an assessment of the impact of a development upon visual amenity is essentially an exercise in planning judgment. He relies heavily upon the approach adopted by Sullivan J (as he then was), in the Newsmith case as supported by Forbes J in the West Midlands International Airports case and endorsed by the Court of Appeal in Parker.[45]In my judgment, there can be no doubt that the Inspector was entitled to take into account the impact of the proposed development upon the visual amenity of residential occupiers when reaching his decision on appeal. It has not been suggested otherwise. In making an assessment of the impact he was not constrained by some kind of rigid analytical approach – whether described as “the base line principle” or not. The Inspector's task was to take into account the relevant parts of the evidence placed before him and form a judgment based upon that evidence and his own expert evaluation following his visits to the site and surrounding area. It was then for him to form a judgment upon the nature and the extent of the impact of the proposed development upon visual amenity.[46]In this case the Inspector identified the visual effects of the proposal in the immediate locality and upon residential occupiers as an important consideration. In my judgment he was entitled so to do since that was part of his planning judgment. In paragraph 12 of his decision letter he expressed himself as follows:- “Some visual impact of such large turbines is inevitable. One of the consequences of the SSAs as identified in TAN 8 is that such impacts are likely to be concentrated in specific areas of Wales. I must assess when these visual impacts become unacceptably harmful.” In expressing himself in this way, in my judgment, the Inspector accurately set out the task which he was called upon to perform on this aspect of the appeal.[47]In paragraphs 10, 11 and 13 of his decision letter the Inspector summarises the factors which he regards as important to his decision upon the impact of the development upon visual amenity. In the last sentence of paragraph 13 the Inspector concludes that the area around the proposed development contains a relatively large number of dwellings which would experience significant visual effects from this proposal. I simply do not see how it can be said that he was not entitled to reach that conclusion on the basis of the evidence adduced before him and on the basis of his own judgment.[48]Paragraph 14 of the decision letter contains the Inspector's conclusion to the effect that the visual effects of the proposals would become overbearing to the residential occupiers of properties which are identified by name. Mr Norris QC submits that there was no basis for the Inspector to reach a conclusion that the effect of the turbines was overbearing. I disagree. The Inspector was qualified by expertise and experience and informed by sufficient evidence to reach such a conclusion.[49]In paragraph 15 of the decision letter the Inspector concludes that the cumulative effect of the proposed development together with the existing and consenting turbines would result in the local community having the appearance of becoming increasingly surrounded by turbines on all high ground to the south and west. On that basis he also concludes that the proposed development would conflict with Policy MEW 10(vii). I have set out the relevant policy above. It seems to me to be clear that as a matter of planning judgment the Inspector was entitled to conclude that the cumulative effect of the proposal would lead to an unacceptable visual impact thereby permitting of the conclusion that the proposed development was in conflict with MEW 10(vii).[50]The suggestion is made in the Details of Claim that the Inspector's conclusion upon the impact of the development upon the visual amenity of residential occupiers amounted to the unlawful protection of a view rather than the protection of true residential amenity. This was not pursued with any vigour in the oral submissions but, in any event, it is clear to me that the Inspector clearly and properly considered residential amenity. In my judgment no other reading of his decision letter bears scrutiny.[51]As ground 1 was formulated in the Details of Claim there was a further complaint. The complaint centred around a sentence in paragraph 4 of the decision letter. The relevant part of paragraph 4 reads as follows:- “Prior to the inquiry I made extensive unaccompanied visits to the area to view the proposal from the majority of the view points in the evidence together with a wide variety of other viewpoints along the local road network. These included distant views and those close to the site. On the Thursday afternoon I visited a number of further unaccompanied visits to the public highways outside dwellings and properties close to the proposal. It is on the basis of my personal visits to the area that I make my judgment on the effect of the proposal and not on the visual representations of viewpoints in the evidence.”[52]It is at least a possible reading of this section of the Inspector's decision letter that he based his appraisal of the impact of the development upon visual amenity solely upon an assessment undertaken by him during his visit to the site and its surroundings. On that basis there would be substantial mileage in an allegation that the Inspector had failed to take into account material considerations namely the evidence adduce by the Claimant in the form of wire frames and photomontages; on any view this evidence was likely to assist in the assessment of impact upon visual amenity.[53]On 3 March 2010 Mr Wild, the Inspector, made a witness statement in these proceedings. In paragraph 4 of his witness statement he seeks to explain his use of language in paragraph 4 of the decision letter and in paragraph 5 of his witness statement he says in terms that he did not ignore the Claimant’s evidence in the form of wire frames and other visual aids. He asserts, unequivocally that he took the wire frames and other visual aids on his site and other viewpoint visits and properly took them into account in making his assessments.[54]In the light of this evidence (which Mr Norris QC accepted was admissible) the assertion that the Inspector failed to have regard to material considerations in assessing the impact on visual amenity falls away. Like Mr Norris, I remain puzzled by the Inspector's use of language in paragraph 4 of his decision letter. To repeat, however, in the light of his evidence to this court there can be no basis for concluding that the Inspector failed to have regard to the visual aids produced by the Claimant when assessing the impact on visual amenity.[55]I have reached the clear conclusion that the Claimant has failed to establish ground 1 of its Details of Claim.[56]In ground 4 the Claimant alleges that the Inspector failed to give adequate reasons for his decision on the issue of visual amenity. In my judgment there is nothing in that allegation. It is clear that the Inspector reached the conclusion that the proposed development had an unacceptable impact upon visual amenity because the development would be unacceptably overbearing to named residential properties and because the cumulative effect of the proposal together with the other wind farm developments would result in the local community having the appearance of becoming increasingly surrounded by turbines. These reasons are not capable of substantial elaboration. They do, however, amply satisfy the test enunciated by Lord Brown in South Bucks District Council v Porter (No 2) [2004] 1WLR 1953. In particular, it seems to me that the comparative brevity of the reasons given in this case was wholly explicable given the nature of the issue under consideration.[57]Ground 2 alleges that the Inspector's approach to the issue of noise was flawed in a number of respects. In my judgment, the case presented by the Claimant on this issue is formidable.[58]ETSU-R-97 “The Assessment and Rating of Noise from Wind Farms” is a report setting out the detailed findings of a working group on wind turbine noise. The working group consisted of a number of experts qualified to provide information and advice to developers and planners on the environmental assessment of noise from wind turbines. The introduction to the “Executive Summary” of the report states that the document describes a framework for the measurement of wind farm noise and suggests indicative noise levels thought to offer a reasonable degree of protection to wind farm neighbours without placing unreasonable restrictions on wind farm development or adding unduly to the costs and administrative burdens on wind farm developers or local authorities. The summary makes it clear that the authors consider that the suggested noise limits and their reasonableness have been evaluated with regard to regulating the development of wind energy in the public interest.[59]Paragraph 2.16 of TAN 8 in effect sets out that part of the executive summary which I have just summarised. The concluding sentence of paragraph 2.16 provides:- “The report presents the findings of a cross-interest Noise Working Group and makes a series of recommendations that can be regarded as relevant guidance on good practice.”[60]In the light of paragraph 2.16 of TAN 8 it is not surprising that the starting point for Mr Norris QC’s attack upon the Inspector's conclusions upon noise impact are three express findings set out by the Inspector in his decision letter. The Inspector finds that the proposed turbines could, with suggested conditions, operate within or at the levels suggested in ETSU-R-97 (see paragraph 21). He concludes that the cumulative increase in noise, that is the noise likely to be generated by the proposed developments at Gorsedd Bran, the proposed development at Brenig and the actual development at Tir Mostyn, would also be likely to be within the noise levels set out in ETSU-R-97 (see paragraph 23). Third, the Inspector accepts that the noise levels indicated in ETSU-R-97 are the standards normally applied in Wales when assessing noise impact from wind turbines (see paragraph 21).[61]Mr Norris QC points out that the proposed development is not just compliant with the indicative noise levels set out in ETSU-R-97. The proposed development is wholly compliant with TAN 8; it is contained within an SSA; it is compliant with ETSU-R-97 and the shortest distance between turbines and residential property is at least 630 metres.[62]In the light of these factors Mr Norris QC submits that no reasonable Inspector could have reached the conclusions about noise impact which were reached by Mr. Wild. That conclusion is reinforced, he submits, if one pays attention to the “base-line principle”. Put shortly, Mr Norris’ submission is that the impact of noise upon a residential amenity is no greater than that which relevant policy regards as acceptable; consequently, a conclusion that the impact of noise is unacceptable cannot be justified.[63]I am not persuaded that there is a base-line principle operating with the inflexibility suggested by Mr Norris when the issue of noise is under consideration either by a local planning authority or an Inspector upon appeal. Ultimately, a planning judgment has to be made about objections to a proposed development which relate to the noise generated by that development. However, as is clear both from TAN 8 itself and from policy MEW 10(iv) an objection to a proposed wind farm situated within an SSA which is based upon noise can only be justified if an Inspector reasonably concludes that the noise levels associated with the proposed development will be unacceptable.[64]I turn therefore, to consider the basis upon which the Inspector concludes that the noise levels are unacceptable.[65]Paragraph 21 of the decision letter demonstrates that the Inspector attaches significance to the evidence presented to him by local residents. I have to say, however, that I am far from clear about the conclusion which the Inspector reaches about this evidence. On the one hand he says that the noise levels actually experienced by residents from the development at Tir Mostyn do not constitute a breach of the relevant planning conditions applicable to the development at Tir Mostyn; on the other hand the noise apparently causes “a level of nuisance”. I find it very difficult to reconcile the two concepts without further elaboration from the Inspector; however, there is none contained within his decision letter. In the witness statement made by the Inspector for these proceedings he states that the word “nuisance” is not used in any strict legal sense; nor is it used so as to convey any particular meaning in terms of planning policy. The Inspector uses the word to describe the “experiences of local residents.” I do not consider this explanation throws any further light on the issue of what the Inspector is intending to convey by the use of the phrase “level of nuisance.” On any view, in my judgment, the phrase is imprecise and difficult to understand.[66]Paragraph 22 is an assessment by the Inspector of wind conditions in the vicinity of the site and the residences nearest to the site and the potential effect of wind conditions on noise which might be suffered by residents. No suggestion is made that the Inspector was not entitled to make such an assessment but in paragraph 22, at least, the only conclusion drawn is that additional cumulative noise impact from the proposed development will be experienced when the wind blows from a particular direction.[67]Paragraph 23 is an important paragraph in relation to the alleged noise nuisance. As I understand it the Inspector there concludes that the proposed development would introduce noise to residences currently affected by noise from Tir Mostyn at a time when otherwise those residences would not be affected by noise. In that way they would suffer cumulative impact. From that judgment, however, (for that is what it is) the Inspector also concludes both that the noise levels (cumulatively) would be within the indicative levels suggested by ETSU-R-97 (thereby conforming with policy) but also be in conflict with MEW 10 (iv) because noise levels would be unacceptable. In the absence of clear explanation I find those findings difficult to reconcile.[68]In my judgment the Inspector is clearly correct when he says (as he does in paragraph 21 of the decision letter) that the indicative noise levels set out in ETSU-R-97 are guidance not absolute values. That is the clear effect of paragraph 2.16 of TAN 8. It follows that there may be circumstances in which it is open to a local planning authority or an Inspector to conclude that noise levels associated with a wind farm are unacceptable notwithstanding compliance with ETSU-R-97. However, on the basis of that which is set out in the decision letter, the Inspector’s statement in these proceedings and the documentation put before me, my tentative view is that this conclusion is not justified. On that basis it would be my duty to hold that the Inspector had reached a decision on the issue of noise which was unreasonable in the Wednesbury sense.[69]I have used the word tentative quite deliberately. I have done so since it is at least possible that I have underestimated the effect of the evidence given by local residents about noise or underestimated the value of the Inspector’s unaccompanied investigations and his ability to make appropriate planning judgments about noise from those investigations. Accordingly, I would not quash this planning permission on the basis that I am satisfied that the Inspector had reached a conclusion about the impact of noise which was unreasonable.[70]If, however, in truth, there was substantial evidence before the Inspector which justified his planning conclusion about the effect of noise he has singularly failed to explain what it was. He did not rely upon any of the evidence adduced by the Second Defendant about noise. Paragraph 21 of the Inspector's decision letter is perfunctory in its description of the evidence given by the local residents; it does not begin to explain how it might be sufficiently compelling to displace the powerful case presented by the Claimant on the issue of noise.[71]As I have said paragraph 23 is a crucial paragraph to the Inspector's reasoning on the issue of noise. However, it does not begin to explain how the cumulative impact found to exist can be both compliant with ETSU-R-97 but yet constitute a breach of Policy MEW 10(iv) of the UDP. In my judgment clear and cogent reasons were necessary for such a conclusion and yet the same are singularly lacking in the decision letter.[72]Paragraph 23 is also important because it suggests that a significant number of local residents would be unacceptably affected by noise. The paragraph does not attempt to describe the location of the relevant residences or why the number affected should be categorised as significant. I appreciate that the participants at the local inquiry would know which residences were discussed in the context of noise and it might therefore be said that such detail was unnecessary. It is to be noted, however, that all the residences under discussion were well in excess of 500 metres from the nearest turbine. In my judgment, at the very least, an identification of each residence potentially affected was called for and an explanation given as to why the impact upon each was considered unacceptable. There is simply no means of knowing from the decision letter whether it was correct to conclude that a significant increase in noise would be caused to a significant number of local residents.[73]As the extract from Lord Brown’s speech in the South Bucks makes clear, reasoning will be deficient if it gives rise to a substantial doubt as to whether the decision-maker erred in law by failing to reach a rational decision on relevant grounds. I am satisfied that the reasoning set out in this decision letter, as it relates to noise impact, gives rise to a substantial doubt, at the very least, about whether the Inspector has reached a rational decision on relevant grounds. Accordingly I conclude that the reasons challenge under ground 4 insofar as it relates to the issue of noise is well-founded.[74]Ground 2 also contains an allegation of procedural unfairness. Paragraphs 80 to 82 of the Details of Claim are in the following terms:- “80. The introduction the concept of “noise nuisance” and the reliance that the Inspector placed on his own experience without reference to the claimant and its experts was unfair and inappropriate and deprived them of the opportunity to address considerations that the Inspector regarded as material.81. It was incumbent upon the Inspector to at least canvas the possibility that he was minded to decide the noise issue on the basis of a new and unexplained concept “noise nuisance”. He did not do so, and a breach of natural justice occurred as a result.82. Further the Inspector did not test his own (inexpert) impressions formed on site visits in the course of the expert noise (or other) evidence given to the inquiry, nor did he give the claimant any adequate opportunity to rebut the impression he had formed. This, too, was a breach of natural justice.”[75]I do not accept that the complaint of procedural unfairness is made out. In summary the Inspector heard evidence from a number of local residents who complained about noise impact. It was obvious that he was undertaking a series of visits to points in the vicinity of the proposed development and it would have been equally obvious, in my judgment, that he would seek to assess likely noise impact at those points. None of this needed to be “spelled out”. The Claimant was represented by a very experienced team. It is inconceivable, in my judgment, that the team did not realise that it had to respond to the residents’ complaints and such judgment as the Inspector might form from his own assessment and those complaints. Further, a glance at the closing submissions made on behalf of the Second Defendant shows that a number of submissions were made as to why the noise likely to be generated by the proposed development was unacceptable and some of those submissions related squarely to the alleged effect upon residential amenity. The solicitor acting for the claimant had every opportunity to address these issues in his closing submissions. It was unnecessary, in my judgment, for the Inspector, himself, to alert the Claimant to the possibility that he might accept evidence which had been presented to him particularly since the Second Defendant made a number of submissions about it and the Claimant had the right to respond.[76]Ground 3 is the Claimant’s base-line argument. I have dealt with this point earlier in this judgment as it relates to landscape and noise issues. Nothing further needs be said.[77]Ground 5 alleges that the Inspector failed to reach a decision in accordance with policy. It also alleges that the decision letter failed to offer a clearly reasoned and consistent approach. In my judgment ground 5 adds nothing to the grounds previously discussed in detail. I propose to say no more about it.

Conclusion

[78]As I pointed out in paragraph 17 of this judgment the First Defendants accept that if the Claimant establishes any of its main grounds of challenge the Inspector's decision should be quashed with the consequence that the Claimant’s planning appeal should be reconsidered. I have reached the conclusion that the Inspector erred in law in at least one important respect. In my judgment, he failed to provide adequate reasons for his conclusion that the noise impact of the proposed development was unacceptable; his reasoning gives rise to a substantial doubt, at the very least, as to whether he erred in law when reaching his conclusion upon the issue of noise impact.[79]I propose to hand down this judgment at the Birmingham Civil Justice Centre on Thursday 20 May 2010 at 10.30am. An electronic copy of this judgment will be made available to the Mold Crown Court by the time of handing down so that any person interested in this judgment but who is not a party may collect it on the day of handing down.

Cited in 1 later judgment