“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.” • 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.”
“Prior to the commencement of development, a landscape and ecological management plan, which should include further hedgerow and tree planting at the site as well as a timescale for implementing the proposed planting, shall be submitted to and approved by the Local Planning Authority. [reason] In order to minimise the potential visual impact to the recreational users of the Spindle Lane footpath and to aid the implementation of some of the key actions for the Woodborough Sloping Farm Land policy zone.”
“8. The rating level of noise from the wind turbine (including the application of any tonal penalty) when calculated in accordance with the method described in the guidance document ‘ETSU-R-97: The Assessment and Rating of Noise from Wind Farms’ shall not exceed the values set out in table 1”
“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 development should not be approved, except in very special circumstances. … 3.2 Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.”
“The visual amenities of the Green Belt should not be injured by proposals for development within or conspicuous from the Green Belt which, although they would not prejudice the purposes of including land in Green Belts, might be visually detrimental by reason of their siting, materials or design.”
“20. The principles for addressing material considerations were set out by Laws LJ in R. (on the application of J (A Child)) v North Warwickshire BC[2001] EWCA Civ 315 ; The Times, March 30, 2001. There Laws LJ said that the operative statute may provide a lexicon of relevant considerations to which attention had to be paid but if the statute provided no such lexicon--or at least no exhaustive lexicon--the decision maker had to decide for himself what he would take into account. In doing so he had obviously to be guided by the policy and objects of the governing statute, but his decision as to what he would consider and what he would not consider was itself only to be reviewed on conventional Wednesbury grounds ([20]). 21. In R. (on the application of Kides) v South Cambridgeshire DC[2002] EWCA Civ 1370 ; [2003] JPL 431;[2003] P & CR 19 , the Court of Appeal addressed what was a material consideration in the planning context. Jonathan Parker LJ said: “121. In my judgment a consideration is ‘material’, in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues.”
“It may be conceded at once that the material considerations to which the Minister is entitled and bound to have regard in deciding the appeal must be considerations of a planning nature. I find it impossible, however, to accept the view that such considerations are limited to matters relating to amenity. So far as I am aware, there is no authority for such a proposition and it seems to me wrong in principle. In principle, it seems to me that any consideration which relates to the use and development of land is capable of being a planning consideration.”” “121. In my judgment a consideration is ‘material’, in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues.” “It may be conceded at once that the material considerations to which the Minister is entitled and bound to have regard in deciding the appeal must be considerations of a planning nature. I find it impossible, however, to accept the view that such considerations are limited to matters relating to amenity. So far as I am aware, there is no authority for such a proposition and it seems to me wrong in principle. In principle, it seems to me that any consideration which relates to the use and development of land is capable of being a planning consideration.””
“…It is one thing to say that consideration of a possible alternative site is a potentially relevant issue, so that a decision-maker does not err in law if he has regard to it. It is quite another to say that it is necessarily relevant, so that he errs in law if he fails to have regard to it. 18. For the former category the underlying principles are obvious. It is trite and long-established law that the range of potentially relevant planning issues is very wide (Stringer v Minister of Housing and Local Government[1970] 1 WLR 1281 ;[1971] 1 All ER 65 ;(1971) 22 P & CR 255 QBD); and that, absent irrationality or illegality, the weight to be given to such issues in any case is a matter for the decision-maker (Tesco Stores Ltd v Secretary of State for the Environment[1995] 1 WLR 759 ;[1995] 2 All ER 636 ;(1995) 70 P & CR 184 HL at 780). On the other hand, to hold that a decision-maker has erred in law by failing to have regard to alternative sites, it is necessary to find some legal principle which compelled him (not merely empowered) him to do so. 19. Of the many cases referred to in argument before me, the only one in which an error of the latter kind was found by the courts was Secretary of State for the Environment v Edwards (PG)(1995) 69 P & CR 607 ;[1994] 1 PLR 62 CA (Civ Div). The facts illustrate the special circumstances which are necessary to support such an argument.”
“9. Given the above policy guidance, I was of the opinion that the application should be considered on its own individual merits with the site specific merits being assessed rather than assessing why the application site was more appropriate than any other potential sites. Moreover, because the applicant wished to use the renewable energy in his farming enterprise it was therefore not an option for the applicant to consider a wide variety of sites in the district over which he had no control and at locations where the energy could not be used. 10. Similarly, as the supplement to PPS1 states that the applicant does not need to justify the need for renewable energy or why such a development should be sited in a particular location, I am of the opinion that alternative ways of producing renewable energy at the site is not a material issue in this instance. Instead, the proposal should be assessed on the individual merits of the proposed wind turbine scheme. There is no policy basis for the planning authority to refuse one form of development for another form of development unless there is a clear policy basis to do so. The local planning authority would lose at appeal and would be liable for costs.”
“(1) Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section and sections 106A and 106B as “a planning obligation”) enforceable to the extent mentioned in subsection 3 – (a) Restricting the development or use of the land in any specified way, (b) Requiring specified operations or activities to be carried out in, on, under or over the land; (c) Requiring the land to be used in any specified way; or (d) Requiring a sum or sums to be paid to the authority … on a specified date or dates periodically.”
“The simple design of the procedures [for enforcing conditions] disguises a potential maze of complexity, and it is likely that local planning authorities will wish to resort to these powers only in the clearest cases of breach. The complexity arises in four key areas: … ”
“8. ….Iam bound to say I found this discussion and argument sterile. There is no doubt that either can be enforced. There is no suggestion that the local planning authority would not enforce an undertaking that has been entered into if there were plain breaches of it. The difficulty or otherwise of enforcement is not a proper subject for litigation in or decision by this court. The question is whether the undoubted slip that was made, however it is to be described, is such as to require this court to interfere and to quash the permission. 9. I have come to the conclusion that there is no proper case for quashing that decision for the reasons advanced under the first category of the claim as argued by Mr. Harwood. It is not arguable that it is appropriate to quash the permission for those reasons. I decline to give permission on those grounds”
“20 …. I think it important to bear in mind the nature of what is involved in giving a screening opinion. It is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all. I think it important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term “screening opinion”.”
“i) the proposal, being for just one wind turbine, was of local importance only; and ii) whilst it was accepted that it was in the green belt, the site together with the immediate surrounding area were not environmentally sensitive or vulnerable locations in any other respect; and iii) the proposal was not unusually complex and potentially hazardous; iv) the consultations and considerations which would have to be undertaken should a full application be submitted would fully address the impact of the proposed turbine; this again is evident from her letter which fully details the considerations and consultations necessary.”
“6. I have been shown a copy of the Claimant’s Grounds in this application for permission to apply for judicial review. I note that it is suggested that I considered that an EIA was not required because the Council would receive the necessary information in any event, if a full application was made. This suggestion is quite wrong. What I actually said, and the basis of my decision was, that the consultations and considerations which would have to be undertaken on a full application would produce consultation responses which would themselves be useful information about the effects on the environment. As a matter of fact I consider this to be accurate. I do not see any conflict at all with this statement of fact and the process which I went through in order to decide whether an EIA should be required. 7. I wish to make it quite clear that I did not decide that an EIA was not required because reports on issues such as landscape impact and noise would be produced in any event. 8. However, having considered the particular characteristics of the development and the particular location in which it was proposed to be located, it was clear to me that, notwithstanding that an EIA was not required, the applicant would need to provide certain information to support the application. It is standard, and indeed good, practice to provide information to would-be applicants in advance of the making of an application so that they understand what information the Council will require in order to determine their application. It is for that reason that I used the same letter to explain to the applicant’s agent the information which the Council would seek.”