Jarrett & Ors v Secretary of State for Communities and Local Government & Ors [2012] EWHC 3642 (Admin)

Case No CO/4414/2012

[2012] EWHC 3642 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Birmingham Civil Justice Centre

33 Bull Street

Venue Birmingham B4 6DS

Date 19/12/2012

Before

MR JUSTICE KENNETH PARKER

Between

JOHN PAUL MARTIN JARRETTClaimants

LEON FARRAND WHEELERClaimant

PAMELA MARGARET WHEELERClaimant

PAULINE CHERRYClaimant

BARBARA MILDRED JARRETTClaimant

Mr Richard Kimblin (instructed by Ansons LLP) for Claimants

Mr Peter Goatley (instructed by The Treasury Solicitor) for Defendant

Hearing Hearing date: 6 December 2012

Judgment

Mr Justice Kenneth Parker :

Introduction

[1]This is an application pursuant to Section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) in which the Claimants seek an order to quash the decision made on behalf of the Defendant, the Secretary of State for Communities and Local Government (“the Secretary of State”), by an Inspector appointed by him, RJ Yuille MSc Dip TP MRTPI, in a decision dated 19 March 2012 (“the Decision”).

[2]The Inspector decided an appeal by Mr Gavin Lloyd, the First Interested Party, against the decision of Shropshire Council (“the Council”), the Second Interested Party, to refuse an application to erect a 15kw wind turbine on an 18 metre high monopole mast. That appeal was determined by the written representations procedure with a site visit made on 7 March 2012.

The Inspector’s Decision

[3]The Claimants are local residents, who live in the properties which are referred to by the Inspector in his decision. They submitted their collective views in an objection to the appeal. At page 4 they listed the following four concerns: i) This site is 160 metres from the nearest bridleway; a distance which does not meet the British Horse Society requests detailed in PPS22. ii) PPS22 recommends ETSU-R-97 good practice for noise assessment for wind turbines. No tests have been carried out. Furthermore, this is a tranquil location with no significant masking background traffic noise. iii) Contrary to the local planning officer’s statement, the nearest road is a country lane and not a major highway. iv) No anemometer readings were submitted and so no realistic or reliable data is available on the likely output from the turbine. Furthermore, as this is not a windy area, on a national renewable scale, this is not an optimum site.

[4]There was a site view. The Inspector was alone with the applicant during a part of the site visit. In a witness statement for these proceedings, the Inspector stated: “When I undertook the site visit it necessitated gaining access to a field via a gateway which was approximately calf deep in mud. Neither the Council’s representative nor the appellant’s agent had any Wellington boots.” (paragraph 4)

[5]The Inspector identified the main issues as: “Whether the proposed turbine would have a harmful effect on the character and quality of the landscape and on the outlook of neighbouring properties and, if so, whether this would be outweighed by the benefits associated with the generation of renewable energy.” (paragraph 3)

[6]The Inspector found that there would be harm to the landscape character and that there would be an adverse effect on the outlook of neighbouring residents (paragraphs 6 to 9). He found that the turbine would be a similar height to nearby trees (paragraph 8). He considered there to be conflict with Policy CS17 of the Shropshire Core Strategy.

[7]He went on to consider the benefits associated with the generation of renewable energy. In this regard he referred to Policies CS6 and CS8 of the Shropshire Core Strategy.

[8]At paragraph 12, he found that:

“On balance, therefore, the harm to the character and quality of the countryside and to the views of neighbouring occupants would not be so significant as to outweigh the contribution it would make to the sum of renewable energy provision and the consequent mitigation of the adverse effects of climate change. In other words, the conflict of the proposed turbine with Policy CS17 is overridden by its compliance with Policies CS6, CS8 and PPS22 and the proposed development would be in accordance with the Shropshire Core Strategy as a whole.”

[9]The Inspector allowed the appeal and granted planning permission pursuant to four planning conditions, No 3 of which provides:

“Prior to commencement of works on the grid connection cable trench a method statement to protect great crested newts shall be submitted to and approved in writing by the local planning authority. This method statement should consider issues including but not limited to: working methods, timing, site clearance and storage of materials. The agreed works shall be fully implemented during the course of any construction works and any mitigation measures thereafter retained for the lifetime of the development.”

[10]The reason which he gave for imposing this condition is recorded in paragraph 13 as:

“There is also the possibility that there are great crested newts in the area and a condition ensuring their protection would be required.”

The Legal Framework

[11]The decision maker exercising powers under the 1990 Act is to have regard to the development plan. Section 70(2) states:

“In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.”

[12]The duty to have regard to the development plan has, since the 1991 amendments, been a duty to determine the application in accordance with the plan unless material considerations indicate otherwise. This is now a statutory duty pursuant to section 38(6) of the 2004 Act, namely:

“If regard is to be had to the development plan for the purposes 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.”

[13]Authoritative guidance has now been given in City of Edinburgh Council and Secretary of State for Scotland

[1997] 1 WLR 1447

where (at page 1459D-G) Lord Clyde stated:

“In the practical application of section [s38 (6)] it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse.”

[14]In Spelthorne Borough Council v Secretary of State for the Environment and Lawlor Land Plc [1994] 68 P. & C.R. 211, David Keene QC (as he then was) emphasised that a decision maker should make it clear whether or not he is treating the proposal as being in accordance with the development plan.

[15]As to a decision letter, that document should be “read in good faith”, as a whole and not as an examination paper. Further, it should be read as by an informed reader: South Somerset District Council v Secretary of State for the Environment

[1993] 1 PLR 80

(CA) at p.83, by Hoffman J, as he then was; South Bucks District Council v Porter (No 2)

[2004] 1 WLR 1953

(HL), by Lord Brown of Eaton-under-Heywood, at paragraph 26.

The Relevant Development Plan in This Case

[16]Shropshire Local Development Framework Adopted Core Strategy CS17: Environmental Networks stated, inter alia: “Development will identify, protect, enhance, expand and correct Shropshire’s environmental assets, to create a multifunctional network of natural and historic resources. This will be achieved by ensuring that all development:• Protects and enhances the diversity, high quality and local character of Shropshire’s natural, built and historic environment, and does not adversely affect the visual, ecological, geological, heritage or recreational values and functions of these assets, their immediate surroundings or their connecting corridors.

• Does not have a significant impact on Shropshire’s environmental assets and does not create barriers or sever links between dependant sites.” (my emphasis)

• Protects and enhances the diversity, high quality and local character of Shropshire’s natural, built and historic environment, and does not adversely affect the visual, ecological, geological, heritage or recreational values and functions of these assets, their immediate surroundings or their connecting corridors.

• Does not have a significant impact on Shropshire’s environmental assets and does not create barriers or sever links between dependant sites.” (my emphasis)

[17]Shropshire Local Development Framework Adopted Core Strategy CS8: Facilities, Services and Infrastructure Provision stated, inter alia: “The development of sustainable places in Shropshire with safe and healthy communities where residents enjoy a high quality of life will be assisted by:•

•

• Positively encouraging infrastructure, where this has no significant adverse impact on recognised environmental assets, that mitigates and adapts to climate change, including decentralised, low carbon and renewable energy generation, and working closely with network providers to ensure provision of necessary energy distribution networks.” (my emphasis)

• Positively encouraging infrastructure,

[18]Shropshire Local Development Framework: Adopted Core Strategy CS6: Sustainable Design and Development Principles stated, inter alia:

“To create sustainable places, development will be designed to a high quality using sustainable design principles, to achieve an inclusive and accessible environment which respects and enhances local distinctiveness and which mitigates and adapts to climate change. This will be achieved by: • • • And ensuring that all development: • • • Ensures that there is capacity and availability of infrastructure to serve any new development in accordance with the objectives of Policy CS8.”

The Grounds of Challenge

[19]Mr Richard Kimblin, on behalf of the Claimants, submits firstly that the Inspector did not correctly in law apply the provisions of the Development Plan to the circumstances before him. For cogent reasons (set out at paragraphs 6-8 of the Decision) the Inspector concluded that the development “would cause harm to the character and quality of the landscape and the outlook of neighbouring residents” (paragraph 9). Nonetheless, at paragraph 12 of the Decision the Inspector found in terms that the Development was in compliance with, among other policies, Policy CS8. However, Policy CS8 only supported development where such development had “no significant adverse impact on recognised environmental assets”. On the footing that the Inspector had just found such significant adverse impact, he could not rationally have concluded that Policy CS8 supported the development.

[20]In response, Mr Peter Goatley, on behalf of the Secretary of State, contended that, on a fair reading of the Decision as a whole, the Inspector had not found any relevant significant adverse impact, within Policy CS8, and he was, therefore, entitled to conclude that Policy CS8 did support the development. Mr Goatley boldly asserted: “In his assessment of the proposed turbine and its impact in paragraphs 4-9 [of the Decision] the Inspector identified the visual harm which he said would arise. What he did not do was, at any stage, to characterise that visual harm as having “a significant adverse affect on the environment”.” (paragraph 27 of the Defendant’s written skeleton argument)

Discussion

[21]I am simply not able to read the Decision in the manner advanced by Mr Goatley. First, at paragraph 3 of the Decision the Inspector identified the initial issue in the appeal to be “whether the proposed turbine would have a harmful effect on the character and quality of the landscape and on the outlook of neighbouring properties”. That was then the first exercise that the Inspector undertook and in respect of which he reached, if I may say so, clear and cogent conclusions at paragraph 9 of the Decision.

[22]Secondly, the Inspector reached an unambiguous conclusion that the development would run counter to the aims of Policy CS17. That conclusion could be reached only on the basis that the effects on the environment (identified in Policy CS17: see paragraph 11 above) were significant and had to be taken into account.

[23]Thirdly, if proper consideration is given to the nature of the adverse effects in question, it is well nigh impossible to see how the Inspector could have dismissed these effects as insignificant, as Mr Goatley’s argument implies. The “harm to the character and quality of the landscape and the outlook of neighbouring properties”, as explained by the Inspector, could not simply be dismissed as trivial or negligible.

[24]Fourthly, the fact that the Inspector did treat such adverse effects on the environment as significant is demonstrated by the structure of his reasoning. Having identified such significant adverse effects, the Inspector went on to balance such effects against benefits arising from the development along the lines spelt out in national and indeed local policy.

[25]Fifthly, if the Inspector had found the adverse effects to be trivial or negligible, he would, in my view, have stated that conclusion in terms in the decision. Such a finding would have wholly undermined the opposition to the development and would have shown that an otherwise beneficial development was sought to be blocked on grounds that were in truth spurious. That is not the course that the Inspector took.

[26]Finally, Mr Goatley’s construction of the Decision requires it to be read backwards. In other words, if the reader began at paragraph 12, with the statement that the development complied with Policy CS8, it could then be seen that the Inspector, by necessary implication, must have concluded that such adverse environmental effects as he had found at paragraphs 6-9 were not significant. I have to say that this back-to-front reading of the Decision, far from according with its straightforward meaning, would do credit to the subtlest and most creative Chancery lawyer.

[27]In summary, I find that the Inspector had no basis for stating that the development “complied” with Policy CS8 when, on the basis of his own findings, it plainly did not, because it would cause significant adverse environmental effects. In accordance with the authorities cited earlier in this judgment, it was incumbent on the Inspector clearly to identify that the development was not in compliance with Policy CS8 by reason of the significant effects on the environment that he had assessed. It was, of course, then open to him to balance that non-compliance against the other material considerations to which he properly referred in the Decision. If he had followed that procedure, it would have been plain to all how precisely he had reached his final determination. One of the vices of paragraph 12 of the Decision is that the structure of the Inspector’s reasoning has at the last gasp been rendered opaque and has indeed generated the contest between the parties in this appeal.

[28]In respect of the first ground, Mr Kimblin had a further point that the Inspector wrongly took account of Policy CS6. There was debate before me as to the nature and scope of Policy CS6. I saw considerable force in Mr Kimblin’s argument that that Policy is aimed at the design of infrastructure rather than with developments of the kind in issue here. However, it appears to me that I do not have to reach any conclusion on this matter.

[29]The first ground of appeal, therefore, succeeds. It was not argued that, if the Claimants succeeded on this ground, the challenged Decision could stand. In any event, for the reasons given, I would conclude that the error was a material one that undermined the validity of the Inspector’s reasoning and that the Decision should accordingly be quashed.

[30]In the light of this finding it is strictly unnecessary for me to consider the other grounds of challenge, but I shall do so briefly.

The Second Ground of Challenge

[31]The Claimants contend that the Inspector failed explicitly to address certain concerns that they had expressed and that he was obliged in his Decision to set out, if that were the case, why he had rejected these concerns. The matters identified were the need for surveys of bird migration, the impact upon bridleways, including the guidance contained in PPS22, adverse noise effects and the lack of anemometer readings.

[32]The Inspector had these concerns before him and I do not believe that it would be right for me to infer that he did not address his mind to them simply because he does not expressly deal with them in his Decision. Furthermore, the Inspector was obliged to make his determination on the central issues in the appeal, which he correctly identified at paragraph 3 of the Decision. He was not obliged to respond to each of the specific points raised by the Claimants. He had to be allowed some margin of appreciation to determine what matters justified express consideration and what did not.

[33]In the present appeal each of the matters relied upon by the Claimants had been fully dealt with in the Council’s Committee Report and they were not matters upon which the Council had relied in reaching its decision refusing planning permission, or which the Council invoked in resisting the appeal. For example, in respect of both bats and birds, the Council’s ecologist had confirmed “that a domestic scale wind turbine at this distance is unlikely to have any impact upon bats and birds including raptors and owls and this separation distance is therefore considered acceptable”. In respect of bridleways and public footpaths, the Council had had regard to the guidance in PPS22 and, in the light of its assessment, regarded the separation distance as acceptable. As to noise, the Council’s Pollution Control Officer had concluded that the predicted noise levels perceived at the nearest residential properties at the various speeds would be negligible.

[34]In my view, the Inspector was entitled to take into account how the Council had responded to the various concerns in determining whether he was required to deal with them expressly in the Decision. The Council had given what appeared to be convincing answers to those concerns, and the Council itself, although refusing permission, did not rely on any of these matters. In those circumstances, it seems to me that the Inspector was not required to deal expressly with the individual points pressed by the Claimants but was entitled to focus on the main issues that he identified in his decision. Of course, the Inspector was at liberty to express in the Decision his conclusions on these matters that he treated as ancillary and not as lying at the core of the appeal, and perhaps as a matter of good administration and complete transparency he might have done so. However, for the reasons given, I do not conclude that he was legally obliged to do so.

The Third Ground of Challenge

[35]This related to the condition referred to at paragraph 9 above. In the original Grounds of Appeal it was alleged that the Inspector had no power to impose a condition of this nature. However, that formulation fell away during the course of the hearing, and the gravamen emerged to be similar in nature to that raised in the Second Ground of Challenge, namely, that the Inspector had proceeded on the impermissible but inarticulate basis that there was no real concern in respect of newts occasioned by the creation and operation of the wind turbine as such.

[36]However, in my view, the same considerations apply to the position of newts as apply to the other matters raised by the Claimants: this aspect had been explored by the Council which concluded that newts were adequately protected by the imposition of the relevant condition. This again was not a matter which the Inspector was required to deal with expressly in the Decision.

The Fourth Ground of Challenge

[37]At paragraph 8 of his Decision the Inspector stated that the turbine would be “similar” in height to nearby trees.

[38]The Claimants pointed to evidence (not challenged) that in relation to Lower Spring Cottage to the south-east of the appeal site, the relevant trees are 13-14 metres high. At Keld Cottage to the west of the appeal site, the relevant trees are only 11-15 metres high. The turbine blades would be approximately 24 metres high. It is, therefore, argued that the Inspector made an error of “material fact”.

[39]The Inspector visited the site, having seen the requisite plans. He understood the nature of the proposed development and its general visual impact. He noted that “a neighbour has erected a mock up of the turbine in a nearby field close to the proposed position. Although this was 2m or so lower than the proposed turbine and some distance from its actual position it acted as a useful reference point at the site inspection”

[40]He also noted that “the proposed turbine would be a prominent, isolated feature in this agricultural landscape, being considerably taller and bulkier than the pole mounted power lines in the vicinity, and its stark utilitarian appearance would be out of keeping with the rural character of the area. ”

[41]He also understood its visibility from a number of properties in the locality, the road that serves those properties and that in those views the tips of the turbine would break the skyline.

[42]In this context, therefore, the Inspector’s reference to the turbine being “similar in height to nearby trees” was not intended to be a precise measurement.

[43]It was intended to express a broad visual impression that, in the exercise of his judgment, he was entitled to make. It is important in this context not to treat what are intended to be statements of impression or assessment as statements of “fact”. The court has traditionally been reluctant to interfere on the ground of alleged factual error and one of the reasons for that reluctance has been the need to leave matters of evaluation and judgment to the primary decision maker. To allow an impression or evaluation to be readily reclassified as a statement of fact would simply encourage challenges that could not otherwise, for good reason, be permitted.

The Fifth Ground

[44]The Planning Inspectorate Procedural Guidance for Planning appeals and called-in planning applications states at section 4.7 under “The site inspection” the following:

“4.7.1 Inspections of the appeal site and any relevant neighbouring land or properties are normally carried out where it is necessary to assess the impact of a development on its surroundings. The purpose of the inspection is for the site and its surroundings to be viewed, not for the case to be discussed with any parties. 4.7.2 Where access is required, arrangements will be made with the appellant and/or landowner to allow the site to be inspected. Similar arrangements will be made with neighbours where it is necessary to inspect the site from their property. Depending on the nature of the case and the site, it may be necessary to seek the attendance at the site inspection of a representative of the appellant and other appeal parties including, where appropriate, interested persons. In all cases there will be no discussion in relation to the case with any party on site.”

[45]In the Procedural Guidance Note, the Planning Inspectorate states at paragraph 16:

“Inspectors should not be accompanied at any stage of the site visit by a representative of one party without the representative of the other party being present, unless the visit has been specifically arranged on this basis by the office.”

[46]The Claimant relies on the Procedural Guidance Note: the Inspector was for a relatively short time alone with the Appellant, contrary to the advice in paragraph 16, and the Decision is, therefore, tainted by bias.

[47]It is necessary on this Ground to revert to first principles: “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” (Magill v Porter

[2001] UKHL 67

[2002] 2 AC 357

at [103], by Lord Hope)

[48]In this context appearances do matter because: “It has … been accepted for many years that justice must not only be done but must also be seen to be done.” (Davidson v Scottish Ministers

[2004] UKHL 34

at [7], by Lord Bingham)

[49]It is, therefore, necessary to look at the specific facts in each case. In the present case the Inspector was with the Appellant only for a relatively short time. The Inspector’s purpose of going together with the Appellant into the field was simply in connection with the location of the turbine. The officer of the Council (whose decision was under appeal) had the opportunity to accompany the Inspector but chose not to do so, apparently because she did not have suitable footwear. The Inspector and the Appellant were in view at all times, although any conversation could not be heard. The Council raised no objection at the time, or subsequently, to what occurred, although of course the Inspector allowed the appeal against the Council’s decision.

[50]I accept that the Inspector did not follow the advice in paragraph 16 of the Guidance Note to the strict letter, and it is of course always desirable that he should do so, unless necessity precludes his doing so, in order that no allegation of bias could be made. However, having regard to the precise circumstances in this case, the duration and purpose of the contact, the close presence of the Council’s officer, and the Council’s acceptance at the time and subsequently of the procedure adopted, no fair-minded and informed observer would conclude that there was a real, as distinct from a fanciful, possibility that the Inspector was biased in reaching his determination on the appeal. I reach that conclusion, paying due regard to the need to ensure that justice should be seen to be done.

Conclusion

[51]For the reasons given, I uphold the First Ground of Appeal and quash the challenged Decision.