Bayliss v Secretary of State for Communities and Local Government & Ors [2013] EWHC 1612 (Admin)

Case No CO/8743/2012[2013] EWHC 1612 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT BRISTOL
Venue Bristol Civil Justice Centre,, 2 Redcliff Street, Bristol, BS1 6GRDate 13/06/13
Before
MR JUSTICE HICKINBOTTOM
Between
GERALD DAVID BAYLISSClaimantSECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTFirst DefendantPURBECK DISTRICT COUNCILSecond DefendantPURBECK WINDFARM LLPThird Defendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Douglas Edwards QC and Cain Ormondroyd (instructed by Richard Buxton) for ClaimantLisa Busch (instructed by the Treasury Solicitor) for First Defendant for The Second Defendant was not represented and did not appearJohn Litton QC (instructed by Burges Salmon) for Third DefendantHearing Hearing date: 5 June 2013
Judgment

Introduction

[1]This claim concerns the proposed construction of a wind farm at Masters Pit, Puddledown Road, near Wareham, just to the north of the Dorset Area of Outstanding Natural Beauty (“AONB”). The application for planning permission by the Third Defendant (“Purbeck Windfarm”) was refused by the Second Defendant planning authority (“the Council”); but, on appeal, after a nine-day inquiry in April 2012, on 6 July 2012 an inspector appointed by the Secretary of State, Mr Paul Jackson (“the Inspector”), allowed the appeal and granted planning permission for the erection of four wind turbines and ancillary works.[2]In this application under Section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”), the Claimant Gerald Bayliss seeks to quash that decision on three grounds. Mr Bayliss lives at South Trigon, to the north east of the site, and hence outside the AONB. He is a supporter of a group called Dorset Against Rural Turbines (“DART”), which was a statutory party at the Inspector’s inquiry.

The Legal and Policy Background

[3]The relevant legal background is uncontroversial: in relation to planning determinations generally, whether made by a local planning authority or by an inspector on behalf of the Secretary of State on appeal, the following propositions, relevant to this claim, are well-established. i) Section 70(2) of the 1990 Act provides that, in dealing with an application for planning permission, a decision-maker (i.e. a local planning authority, or an inspector who conducts an appeal on behalf of the Secretary of State) must have regard to the provisions of “the development plan”, as well as “any other material consideration”. ii) 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.”
That requires the proposed development to be in accordance with the development plan looked at as a whole, rather than with every policy in the plan, which may well pull in different directions and some of which may be more relevant to a particular application than others (R v Rochdale Metropolitan Borough Council ex parte Milne (2001) 81 P&CR 27 at [44]-[50]). Therefore, section 38(6) raises a presumption that planning decisions will be taken in accordance with the development plan, looked at as a whole; but that presumption is rebuttable by other material considerations. iii) “Material considerations” in this context include statements of central government policy set out in Planning Guidance Notes and Statements and, since March 2012, the National Planning Policy Framework (“the NPPF”) which replaced many earlier policy documents. Any local guidance is also a material consideration. iv) Whilst he must take into account all material considerations, the weight to be given to such considerations is exclusively a matter of planning judgment for the decision-maker, who is entitled to give a material consideration whatever weight, if any, he considers appropriate, subject only to his decision not being irrational in the sense of Wednesbury unreasonable (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780F-G). The courts have consequently left such decisions to be taken by the appointed decision-maker on the basis of guidance promulgated by the Secretary of State (see, e.g., R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 at [60] per Lord Nolan, [129] per Lord Hoffman and [159] per Lord Clyde). v) However, the relevant policy may include guidance as to the weight to be given to a particular factor. Where it does so, weight is still a matter for the decision-maker; but he must take into account any policy guidance as to weight, which is itself a material consideration. vi) A decision-maker must interpret national policy properly. The true interpretation of such policy is a matter of law for the court (Tesco Stores Ltd v Dundee City Council [2012] UKSC 13). Where a decision-maker has misunderstood or misapplied a plan or policy, that may found a challenge to his decision, if it is material, i.e. if his decision would or might have been different if he had properly understood and applied the guidance. vii) An inspector’s decision letter cannot be subjected to the exegesis that might be appropriate for a statute or a deed. It must be read as a whole and in a practical and common sense way, in the knowledge that it is addressed to the parties who will be well aware of the issues and the arguments deployed at the inspector’s enquiry, so that it is not necessary to rehearse every argument but only the principal controversial issues. Reasons for a decision must be sufficient to enable a party to understand how any such issue, of fact or law, has been resolved. In any event, a reasons challenge will only succeed if the aggrieved party has been substantially prejudiced by the failure to provide an adequately reasoned decision (see Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P&CR 26 at page 28 per Forbes J; South Somerset District Council v Secretary of State for the Environment [1993] 1 PLR 80 at pages 82H, 83F-G per Hoffman LJ; and South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 at [36] per Lord Brown). viii) In relation to a challenge to a decision-maker’s approach to policy guidance, in the South Somerset case, Hoffman LJ said this (at page 83F-H):
“The [decision] letter must be read in good faith and references to policies must be taken in the context of the general thrust of the inspector’s reasoning…. One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy…”
.

Ground 1

[4]The site lies 800m north of the boundary of the Dorset AONB. The Claimant contends that the Inspector, having found that the development would cause some harm to the AONB, erred in his approach to the weight to be attached to that harm.[5]By section 85 of the Countryside and Rights of Way Act 2000, in exercising any function affecting an AONB, the Secretary of State (and, of course, an inspector acting on his behalf) is required to have regard to the purpose of conserving and enhancing the natural beauty of the AONB. That statutory provision is supported by provisions of two policy guidance documents: it is uncontroversial that neither formed part of the relevant development plan in this case, but both were material considerations.[6]The first is paragraph 115 of the NPPF, which states:
“Great weight should be given to conserving the landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to landscape and scenic beauty…”
. That requires particular consideration to be given to the conservation of the landscape of an AONB (and hence to any harm that might be caused to the AONB by the proposed development); and, although weight relative to other material considerations remains a matter for the decision-maker, it requires that factor inherently to be given particular weight.[7]The second is Policy MN24 of the Purbeck District Local Plan, a local plan that was never adopted (and therefore not part of the development plan) but which was nevertheless used by the Council in its consideration of the planning application, and was therefore a material consideration for the Inspector. Under the heading, “Renewable Energy Developments”, Policy MN24 states (so far as relevant to this claim): “Proposals for the development of renewable energy schemes will be permitted provided that: (i) the impact of the development on the immediate and wider landscape particularly within the [AONB]… is not detrimental…”.[8]Mr Douglas Edwards QC for the Claimant submitted that it is clear from the Inspector’s decision letter that he found that the proposed development, visible from the AONB, would have an adverse impact on, and hence result in harm to, the AONB – albeit limited harm to a limited part. The guidance required him to give that harm “great weight”: but, far from doing so, the Inspector did not refer to paragraph 115 of the NPPF, or its requirement to give harm to an AONB great weight, at all. Furthermore, he failed to distinguish between the harm he found within the AONB, and the harm he found outside it, notably in paragraph 91 of his decision letter where, in listing the factors that weigh against the proposal, he refers to simply:
“A limited degree of harm to landscape considerations including the natural beauty of the Frome Valley in the AONB.”
The Inspector ought to have distinguished between the harm respectively inside and outside the AONB, and given differential weight to the former, as required by paragraph 115 of the NPPF. In failing to do so, it is clear, Mr Edwards submitted, that the Inspector erred, not just in form but in substance, to take into account the policy requirement to give harm to the AONB “great weight”.[9]Forcefully as that submission was put, I do not find it compelling.[10]The Inspector’s consideration of the harm to the AONB must be seen in its proper context. It was common ground between all parties to the inquiry that “onshore wind is an important element in meeting the Government’s target for the generation of electricity from renewable sources” (see paragraph 82 of the decision letter). The NPPF, looked at as a whole, generally favours renewable energy developments, whilst of course requiring the benefits of such developments to be balanced against possible harm to the environment that they might cause. For example, paragraph 97 requires authorities to “have a positive strategy to promote energy from renewable and low carbon sources”, and to “design their policies to maximise renewable and low carbon energy development while ensuring that adverse impacts are addressed satisfactorily, including cumulative landscape and visual impacts…”. Paragraph 98 provides that planning authorities should not require applicants to demonstrate the overall need for renewable energy, and should approve an application, “unless material considerations indicate otherwise”, “… if its impacts are (or can be made) acceptable…”.[11]The visual impact of the proposed development from within the AONB was specifically raised as an issue in the Council Officer’s Report, and considered in some detail in section 1 of that report. The Dorset AONB Partnership Team suggested various mitigation measures, but these were not considered by the Officer to be effective or feasible in addressing those adverse visual effects (paragraphs 1.1.34-1.1.38). However, neither the Dorset AONB Partnership, nor Natural England (which has particular responsibilities for AONBs), nor the County Council raised any objection to the development on AONB grounds; and, at a meeting of the Council’s Planning Board on 30 November 2010, the Board resolved to grant planning permission subject to appropriate conditions being agreed. But, in the event, at a further meeting of the Board on 31 March 2011, such conditions were not agreed; and therefore, although in principle supportive of the development, the Board refused planning permission.[12]The reasons for refusal did not refer to harm to the AONB. Such harm was therefore not the focus of the appeal before the Inspector. That is reflected in the fact that the lengthy closing submissions of neither the Council nor DART (represented at the inquiry by Leading Counsel, although not Mr Edwards) referred to that harm as an issue, at all. Harm to the AONB was dealt with in the closing submissions of Purbeck Windfarm – of course, the appellant before the Inspector – in which it comprised five out of about 300 paragraphs (i.e. paragraphs 1.98-1.102). Those brief submissions did, however, confirm that some of the evidence adduced by DART suggested that the harm caused by the development to the view out of the AONB was indeed regarded as important by some of the witnesses.[13]With that background, it is unsurprising that the Inspector dealt with harm to the AONB as he did. It is unsurprising that he dealt with it in fairly short order.[14]In paragraph 6 of his decision letter, he identified the main issues in the inquiry, as follows:• The effect of the proposed development on the visual amenity of the surrounding area;• The effect on the living conditions of nearby occupiers in terms of visual dominance and noise and disturbance; and• Whether the environmental and economic benefits of the scheme would be sufficient to outweigh any harm that might be caused. Understandably, he did not include harm to the AONB as a discrete main issue.[15]Having dealt with visual and residential amenity, and visual dominance (paragraphs 15-37) (including from Trigon: paragraphs 31-32), and noise (paragraphs 38-55), under the heading “Other matters”, he turned to deal with “Landscape considerations”. In paragraphs 56-58, he dealt with general visual impact issues. He dealt with the impact of the development specifically on the AONB in paragraph 59, as follows:
“Turning to the effect on the AONB itself, the site lies about 800m outside its Purbeck northern boundary. The turbines would be visible from within it as an incongruous and intrusive element on higher ground, particularly from the Purbeck Way alongside the Frome, although roads and railways also impinge on these views. In longer views from higher ground on the Purbeck Ridge such as the important view from Creech Hill, the turbines would be below the horizon and whilst noticeable, would be subsumed by the wider prospect. Although there would be an adverse impact on the natural beauty of the adjacent “Frome Valley pasture” part of the Dorset AONB, the impact would be limited.”
[16]It is clear from that paragraph that, as Mr Edwards submitted, the Inspector, having specifically considered the issue of harm to the AONB, found that the development would have an adverse impact on the views from, and hence result in harm to, the AONB. His consideration of that harm was particular: he considered that the development would cause limited harm to a limited part of the AONB, namely the Frome Valley Pasture. Having made that finding, the Inspector reverted to general landscaping issues in paragraphs 60-61: despite Mr Edwards’ submission to the contrary, his finding in paragraph 61 that “a significant adverse landscape impact would occur at distances up to 3km…” was clearly a conclusion in relation to the general landscape impact, and not in respect of the impact on the AONB although part of that area is of course within that 3km distance. The adverse impact on the AONB is dealt with in paragraph 59.[17]As I have indicated, Mr Edwards also focused on paragraph 91 which, for the purposes of the exercise the Inspector performed of balancing factors in favour of the proposal and those against it, Mr Edwards criticised for “lumping together” the harm to the landscape generally and the harm to the AONB specifically. That criticism is, in my view, harsh. In paragraph 8 of his decision letter, the Inspector referred to Policy MN 24, and specifically the provision of that local guidance that the impact of the development particularly within an AONB is not detrimental. I accept that a well-placed reference to paragraph 115 of the NPPF and/or the particular “great weight” given to the harm to the AONB as the Inspector had found it to be may have been helpful, in the sense that, had it been included, it may well have resulted in this challenge never being attempted; but, in my judgment, paragraph 59 makes clear that the Inspector had well in mind the special nature of the AONB and harm the development may have upon it. The only reason for him considering harm to the AONB discretely was that he understood that such harm was to be inherently given particular weight as required by the NPPF.[18]Mr Edwards suggested that the Inspector may not have had the NPPF in mind, because it was only published a month before his inquiry hearing. But, with respect, he clearly had it in mind: in the section of his decision letter on “Policy background”, he leads with the NPPF, upon which (he says) the parties made submissions, to which he had had regard. There is no reason to suppose that he did not do so. The NPPF guidance of course has to be looked at as a whole; and, in addition to paragraph 115 of the NPPF, the Inspector also no doubt took into account the guidance generally favouring renewable energy developments, such as paragraph 98 (which I refer to and quote in paragraph 10 above).[19]To borrow Lord Hoffman’s phrase (the South Somerset case, at page 83F), this was not an examination paper for the Inspector. It was unnecessary for him formulaically to recite every relevant policy or that the harm to an AONB inherently must be given “great weight”. Reading the decision letter as a whole, I have no doubt that he understood the special position harm to the AONB had in his deliberations, as required by the policy guidance; and, given the place the issue of harm to the AONB played in the appeal before him, I am satisfied that he dealt with the issue adequately and properly. The Claimant’s problem is not that the Inspector approached his task incorrectly, but rather he did not consider the harm to the AONB to be a powerful factor in all of the circumstances of this case. As I have indicated, that was unsurprising: it effectively reflected the position of the parties (including DART) in their closing submissions.[20]For those reasons, I do not consider that the Inspector erred in the manner he dealt with the harm to the AONB that the proposed development would cause.

Ground 2

[21]The second ground of challenge focuses on, not the harm the development would cause, but its benefits. The Inspector had to balance the benefits of the development, against the factors that weighed against the proposal. The Council and DART submitted that the benefits were not as great as Purbeck Windfarm suggested.[22]Mr Edwards submitted that the Inspector erred in his approach to such benefits, in the following passage from paragraph 85 of the decision letter:
“… I give little weight to arguments that the wind resource in Dorset is insufficient to justify the development; quite apart from the prevailing conditions that I experienced during the time the Inquiry sat, the developer has established that the development would be viable, based on measurements taken on site over a considerable time. The Council does not dispute that Purbeck has the best wind resource in Dorset.”
That paragraph contributed directly to the Inspector’s conclusion at paragraph 95, which was his crucial overall finding:
“The development would be capable of producing up to 9.2 MW which would make a meaningful contribution to renewable electricity in Dorset as part of a mix of resources. Having regard to all matters raised, the environmental and economic benefits of granting permission for the development significantly outweigh the limited degree of harm that would occur.”
[23]Mr Edwards submitted that three distinct errors were revealed in the short passage I have quoted from paragraph 85.[24]First, he said that the Inspector erred in taking into account his own experience of the wind conditions in the month of April 2012 (i.e. during the course of the inquiry). There is nothing in this point: it may or may not have been breezy on the site when the Inspector visited the site, but his comment about his own experience was clearly no more than an aside to which he gave no real weight; and, in any event, by his use of the phrase “Quite apart from…”, he made clear that the development was justified without regard to that experience.[25]Second, he submitted that the point concerning Purbeck having the best wind resource in Dorset was not a point put to the Council’s expert at the inquiry (Colin Godfrey of CLG Energy Consultants Ltd); and, if it had been put, Mr Godfrey would have said that better wind speeds were found in West Dorset, and consequently that area (and Cornwall and North Devon) had a higher capacity (Colin Godfrey 20 August 2012 Statement, paragraphs 18-20). In the circumstances, the Inspector was again wrong to take it into account.[26]Mr John Litton QC for Purbeck Windfarm accepted that the matter was not put to Mr Godfrey at the inquiry; but suggested that the proposition in the Inspector’s report came from appendix 4 to Mr Godfrey’s own proof of evidence for the inquiry, which was a map showing the results of the South West Region Large Scale Wind Resource Assessment. That shows energy density, i.e. the energy that could be generated from turbines that the area could in practice support. The energy density for Purbeck District is indeed higher than elsewhere in Dorset.[27]Before me there was a debate as to whether energy density is the same as wind resource. That debate was short; but in any event, in my judgment, sterile. On any view, this development would make a meaningful contribution to renewable electricity; and, if there were other areas in Dorset or other parts of South West England where the wind was such that developments there might make bigger contribution, then that was irrelevant to the Inspector’s planning determination. He was not making a relative assessment. Looked at in the full context of the decision letter as a whole, I am entirely unpersuaded that, by referring to Purbeck having “the best wind resource in Dorset”, the Inspector gave that point any real weight.[28]Third, it was submitted that the Inspector erred in law in making the findings he did make in paragraph 85, because Purbeck Windfarm refused to provide “[wind] measurements taken on site over a considerable period of time”, which DART had repeatedly requested. The Inspector erred (Mr Edwards submitted) because the capacity of the development was in issue: the capacity factor relied upon by Purbeck Windfarm was 25%, and that put forward by Mr Godfrey (supported by a second expert on behalf of the Council, Mr Martin Wood) was only 19%. The capacity went to two possible issues,(i) the viability of electrical output, and(ii) the financial viability of the development. The Inspector failed to consider what weight ought to be given to Purbeck Windfarm’s assertions as to wind capacity, in circumstances in which those assertions could not be tested. Mr Edwards relied upon paragraph 11 of the PPS 22 Companion Guide, which makes clear the importance of information derived from anemometers in assessing whether a site will harness wind power satisfactorily.[29]Therefore, it was submitted that, in the absence of such data, the weight the Inspector gave to the benefits that the proposed development would deliver was flawed; as was the exercise the Inspector performed balancing the benefits and detriment of the development.[30]In considering this ground, it is worth noting again that paragraph 98 of the NPPF provides that applicants for renewable energy development do not have to demonstrate overall need for renewable or low carbon energy.[31]The decision letter was naturally informed by the issues before the Inspector, and the way in which each party put its case to him. Wind measurements are often potentially commercially sensitive data; and so it is not unusual for expert agreement to be sought in the form of a Statement of Common Ground. That happened in this case. In relation to the two issues between the parties – the viability of electrical output, and the financial viability of the development – the agreement reached said: “The electricity output from the proposed development would currently constitute electricity supply from an eligible renewable source for the purposes of the Renewable Obligations. As such it is agreed that the proposal would currently contribute to the national objective of promoting renewable energy technologies” (paragraph 4.2). “It is agreed that the commercial viability of the proposed development is a matter for [Purbeck Windfarm] and not a land use consideration” (paragraph 9.2) It was therefore not in dispute that(i) the development would generate meaningful amounts of electricity, and(ii) commercial viability was entirely at the risk of the developer, and was not a planning matter.[32]However, neither paragraph 98 of the NPPF nor the expert agreement is a full answer to the point, because the Inspector was required to balance overall benefits and overall detriment, which in turn required him to assess the extent of benefit. But it is quite clear from paragraph 86 that, even on the basis of the capacity figure relied upon by the Council and DART – which the Inspector unexceptionably rounded up to 20% - the Inspector clearly considered that benefits outweighed the harm. Mr Edwards focused on paragraph 86 of the decision letter; but paragraphs 87-89 explain why, even at 20%, the benefits were substantial, in the light of the general policy encouraging renewable energy. And, as Mr Litton submitted, the balancing exercise performed by the Inspector was not a close call: the Inspector considered that “the environmental and economic benefits of granting planning permission for the development significantly outweigh the limited degree of harm that would occur” (paragraph 95).[33]For those reasons, I do not find any of the limbs of the second ground made good.

Ground 3

[34]Finally, Mr Edwards submitted that the Inspector erred in the way in which he dealt with safety.[35]It was common ground between the parties that the Companion Guide to Planning Policy Statement PPS 22 was a material consideration for the purposes of this planning decision. That Guide provides, so far as relevant to this claim, as follows:
“Safety 49. Experience indicates that properly designed and maintained wind turbines are a safe technology. The very few accidents that have occurred involving injury to humans have been caused by failure to observe manufacturers’ and operators’ instructions for the operation of the machines. There has been no example of injury to a member of the public. … Proximity to Roads, Railways, and Public Rights of Way and Power Lines 52. Applicants are advised to consult at an early stage with the Highways Agency for trunk roads and the local highways authority for all other publicly maintained highways…. 53. Although a wind turbine erected in accordance with best engineering practice should be a stable structure, it may be advisable to achieve a set-back from roads… of at least fall over distance, so as to achieve maximum safety.” 54. Concern is expressed over the effects of wind turbines on car drivers, who may be distracted by the turbines and the movement of the blades….”

Proximity to Roads, Railways, and Public Rights of Way and Power Lines

[36]Mr Edwards criticised the Inspector for not substantively considering the safety issue of fall over distance, rather saying (at paragraph 77 of his decision letter) that he had “… no doubt that the question of proximity and distraction will be assessed again”. That question would not, Mr Edwards submitted, ever be reconsidered in a planning context. The Inspector erred in not getting to grips with it.[37]However, again I consider the criticism unwarranted. The Inspector expressly referred to the fall over distance in the Companion Guide, and the fact that DART relied upon it (see paragraph 74 of the decision letter). Reading the decision letter as a whole, I do not accept that the Inspector did not consider the safety aspect of the fall over distance: he clearly concluded that, if compliant with post-planning regulation by way of Health & Safety requirements, there was no real safety risk by way of the development being within the fall over distance of a highway or otherwise. The Council (as planning authority) of course had no safety concerns over the proposed development; and, as the Inspector noted, the Highway Authority had no objection to the proposal.[38]There is no merit in this third ground.

Conclusion

[39]For those reasons, I do not find any ground made good; and I dismiss this application.

Cited in 4 later judgments