Lancashire, R (on the application of) v Northumberland County Council & Anor [2013] EWHC 3850 (Admin)

Case No CO/4320/2013Neutral Citation Number: 2013EWHC 3850 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue LEEDS DISTRICT REGISTRY, Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/12/2013
Before
THE HONOURABLE MR JUSTICE BLAKE
Between
R (on the application JOHN LANCASHIRE)ClaimantNORTHUMBERLAND COUNTY COUNCILDefendantR TAITInterested Party
Mr R Harwood QC (instructed by Richard Buxton Environmental and Public Law) for ClaimantMr S White (instructed by NCC Legal Department) for DefendantHearing Hearing dates: 21- 22 November 2013
JudgmentThe Honourable Mr Justice Blake :Introduction
[1]This is an application for judicial review of a decision of Northumberland County Council dated 16 January 2013 to grant Mr Tait (the interested party) planning permission to erect a wind turbine in land adjacent to his home situated in the town of Wooler, Northumberland. The claimant is a local resident who objected to the development on grounds that included its likely impact on the surrounding landscape and ancient monuments[2]The planning application was submitted on 6 June 2012. It was to install a single 11 KW Gaia wind turbine on a 18.4 metre high tower. The turbine had twin blades with a diameter of 13 metres making a total height from turbine base to tip of the blade at its tallest point 24.9 metres. In the design and access statement the turbine was estimated to be capable of generating 24,960 kilowatt hours (kWh), providing an annual CO2 saving of approximately 12.9 tonnes of carbon. The purpose of the energy created was to supply electricity to Mr Trait’s farmstead, consisting of a house, holiday cottage and caravan park. The proposal would thus reduce the carbon footprint of the farmstead and reduce energy bills; all excess energy was fed back into the national grid, and would contribute to the regional and national targets for the supply of renewable energy.[3]The turbine was to be located on agricultural land 195 metres from the main buildings of the farm complex and 800 metres east of the boundary of the Northumberland National Park. This was on undulating ground within the Wooler Hills local area itself part of the Cheviot fringe regional area. This is a landscape recognised as being sensitive to wind energy development. Further, this part of Northumberland was rich in archaeological and architectural features. To the east of the turbine lay the small town of Wooler with a conservation area and listed buildings; within the national park boundary and 1.5 kilometres west from the turbine site was the scheduled ancient monument (SAM) of Humbleton Hill iron-age fort; 350 metres south west lay the SAM of Green Castle, a medieval fortified site. A regional long distance footpath St Cuthbert’s Way passed by Green Castle and proceeded west and north to enter the Northumberland National Park; Homildon Hill, 750 metres north west of the turbine, was the location of a historic battle fought in 1402.[4]Statutory consultees were notified of the application in order to evaluate and give their opinion on the impact of the development on the environment. These included Northumberland Conservation, the County archaeologist, the Northumberland National Park Authority and English Heritage. None objected to the application and their responses were summarised in a report prepared by Jennifer Adamson, Principal Planning Officer, the final version of which was submitted to the Defendant’s Planning and Environment Committee meeting on 8 January 2013. Nothing turns on the response of the Conservation officer as it is common ground in this application that no harm was considered to be occasioned to the conservation area or listed buildings in Wooler. An issue arises as to whether the views of the other consultees, and in particular English Heritage were properly understood and sufficiently explained by the officer to the Committee members.[5]A number of local residents raised concerns about the possible noise consequences of the development, although the nearest non-associated property was some 330 metres away and the recommended guidance (ETSU-R-97 The Assessment and Rating of Noise from Wind Farms) states that a day decibel limit of 35 dB L A90 (1) Min is appropriate and that noise from this turbine will be below this level when a residential property not associated with the application is 137 metres or more distant from the turbine. The nearest residential property of any type was 200 metres away. Nevertheless, the defendant’s Protection Officer recommended the insertion of a planning condition related to noise as a precautionary measure and conditions 14 to 16 (set out in Annex 1 below) were imposed on the grant of planning permission.[6]The Planning Officer’s Report (POR) drew attention to a number of planning policies and related guidance. These included the UK’s renewable energy strategy (2009) and road map (2011); English Heritage’s guidance ‘Wind Energy and the Historic Environment’ (2005) and the National Planning Policy Framework (2012) (NPPF). Various regional and local plans were also cited.[7]The defendant is a newly constituted consolidated planning authority replacing a number of boroughs and districts within the county; some of the local plans have been preserved by the Secretary of State. These included Policies C26 and C27 of the Berwick upon Tweed Borough Local Plan (2009). These are in the following terms: POLICY C26 “Within the Kyloe Hills and Glendale Area of High Landscapes value, proposals for the development of wind farms designed to connect into the regional or national electricity supply network will be considered. Particular regard will be given to the following issues: i) The requirement for an Environmental Statement under any current Regulations; ii) The local wider and cumulative impacts on the landscape; iii) The need to protect features and areas of heritage and nature conservation interest; iv) Levels and effects of noise, shadow flicker and electromagnetic interference; v) The measures that would be taken, both during and after construction, to minimise the impact of the development on adjoining land uses and residential amenity; and, vi) The local and wider impacts of the development, including safety, employment tourism, education and levels of pollution; vii) All proposals will be balanced against Policies elsewhere in the plan. In doing so it will be acknowledged that wind energy can only be harnessed commercially where the annual mean wind speed is sufficiently high. 8.11.3 The Borough Council considers that the scale and character of the landscape is such that it would be able to accommodate the development of sensitively sited small scale renewable energy projects designed to supply an individual farmstead and related dwellings or other business. The Policy, in accordance with Supporting the Community Objectives 1, 4, and 8, is: POLICY C27 Within the Kyloe Hills and Glendale Area of High Landscape Value in considering small scale renewable energy projects designed to supply individual premises or groups of premises regard will be had: i) to their satisfactory integration into the landscape, or townscape; ii) to the avoidance of materially adverse effects, or cumulative effects on the use and occupation of neighbouring land, or on its landscape or nature conservation interests, and iii) in accordances with Policies elsewhere in the Plan.”[8]On 2 April 2013 a pre-action protocol letter (PAPL) was sent on behalf of the claimant challenging the grant of planning permission. On 12 April, before the expiry of the time for response to this letter, this claim was issued. In fact the defendant responded to the PAPL on 12 April and that response was considered by the claimant before the application was served on the defendant without modification. Amongst the points taken by the defendant is the contention that the application was not made promptly within the meaning of CPR 54.5 (1) and that relief should be refused in any event. The application was transferred to the Administrative Court in Leeds on 12 July 2013 and on 3 September 2013; Judge Behrens granted permission to apply and directed expedition.

The Challenge

[9]The claimant submits that the grant of planning permission was unlawful for four reasons:- i) In advising the Committee for the 8 January meeting the POR failed to mention that the Northumberland Key Land Use Impact Study (2010) (NKLUIS) described the landscape in the locality as one of ‘high sensitivity’ where the assumption with respect to development was ‘protect’. NKLUIS had been commissioned by the defendant in order to assist with planning policy formation and had been cited in another wind turbine application in a different locality that had been rejected. ii) The POR failed to recognise that the development was for a wind farm that was designed to connect to the national power network and that accordingly Policy C26 rather than C27 was the relevant local planning policy. iii) Conditions 14 to 16 that the defendant considered necessary to attach to the planning permission were irrational and not enforceable. This was because no prior background noise assessment had been undertaken by the interested party or the defendant before permission was given for the turbine to be built and, therefore, there could be no effective comparison with noise levels created by its operation. Further reliance by the defendant on reports obtained by approved consultants was inadequate as there was no time scale for the provision of the reports and no obligation on the defendant to act in response to them. iv) The POR had in error applied the test of whether the development would cause substantial harm rather than harm to the SAMs in question and in doing so misrepresented what English Heritage, the National Park Authority and the County archaeologist were stating in response to the consultation.[10]I propose to consider ground 3 first. In my judgement there is nothing in this point. The condition had been recommended by the defendant’s relevant noise expert, the Protection officer who presumably has had some experience in the practicality of such a condition.[11]I accept the defendant’s submission that the condition was designed to protect against a contingency that deterioration of parts within the life of the development or other unforeseen circumstance would lead to noise levels greater than predicted. If a credible complaint was received that the decibel level at 200 metres was greater than the condition permitted, it was sensible to require the interested party to commission a report from a reputable consultant approved by the defendant within 21 days. The consultant would be expected to have the commissioning party’s cooperation when it came to measuring noise with the turbine working and silent in different wind conditions. The difference was capable of measurement. No time limit for the submission of the report could be set as it would depend on conditions on the ground, but there was a condition to submit a report that could be enforced if the defendant concluded that the interested party or the consultants were not acting promptly and efficiently. If there was evidence of a breach that required remedial action, there were no reasons to believe that the defendant would permit a breach of conditions to go unsanctioned.[12]This was a lawful condition capable of effective enforcement in the manner set out in the condition itself. I am not persuaded by the claimant’s submissions to the contrary.

Ground 3: Whether this was development within Policy C 26

[13]It is clear from the authority of the Supreme Court in Tesco Stores v Dundee City Council [2012] UKSC 13 at [17] to [19] that the true meaning of a disputed planning policy is for the court to resolve in the event of a challenge. However, the court does not construe the language of a policy as if it were a statute or a contract and in many cases the terms of the policy indicate that a planning judgement is to be made. The exercise of a planning judgement is for the decision-maker subject to the supervisory jurisdiction of the court.[14]I conclude that the language, context and purpose of the local planning policies in question all suggest that the present application was for a small-scale renewable energy policy designed to supply individual premises or groups of premises, rather than a wind farm designed to connect to the national grid.[15]As to the plain language of the policy, I consider that a development is not designed to connect into a regional or national grid merely because it is capable of supplying excess energy to the grid when domestic demand is low. If that had been the intention of the policy the words ‘is connected to the grid’ would have been used in Policy C 26 instead of ‘designed to connect’. The essential design object of the proposal was to supply the interested party’s farmstead rather than the grid.[16]The conclusion that C27 was the appropriate policy for the previous application is supported by other considerations of context and purpose. Read as a whole the two policies appear to me to be intended to contrast small-scale supply to individual premises with more large-scale commercial supply, and this proposal fits the former rather than the later. The fact that a small-scale supply to a single set of farmstead premises may generate unused surpluses that can be provided to the grid does not alter the essential character of the development.[17]The use of the word ‘wind farm’ is a pointer to an enterprise engaged in commercial exploitation of the wind as a resource for retail supply although neither side was able to refer me to a definition in planning law or guidance. The fact that there is one turbine only and that it is of a modest height is another such a pointer to the scale of this development being small. I accept that it may be possible in fact to have a wind farm consisting of one turbine only, but such a turbine is likely to be of the size of 65 to 100 metres referred to in English Heritage’s 2005 Guidance (see above at [6]) rather than a smaller one with the highest overall height being under 25 metres.[18]Policy C 27 should be considered in the context of preceding paragraph 8.11.3 that describes the nature of the present application very well.[19]I am, therefore, not persuaded that POR drew attention to the wrong policy or failed to identify the right one.

Ground One: The character of the landscape

[20]I now turn to the claimant’s submissions with respect to the absence of detailed reference to NKLUIS in the POR. It is submitted that this was an omission of a relevant consideration because the report failed to spell out the assessment of the particular sensitivity of the landscape.[21]It is common ground that NKLUIS was not a planning document to which regard was required by statute; nor was it a policy that the defendant had stated would be taken into account. There was no evidence of an invariable practice of referring to it in planning applications.[22]In a report dated 27 July 2012 in respect of an application to build a single wind turbine with an overall height of 27.1 metres in the parish of Thropton, the planning officer had noted (7.17) the NKLUIS landscape assessment and continued:
“The guiding principle for this area is for protection due to the high sensitivity of the landscape and the land for of the valley indicates an increased sensitivity to wind turbine development.”
[23]The decisive consideration leading to rejection of that application is contained in paragraph 7.19 that reveals that the location of the turbine was on an elevated steep bluff and thus conflicted with the recommendations of the Benson Report (2002), an earlier landscape assessment that such a development should avoid rocky outcrops; and the NKLUIS assessment was in harmony with the local Alnwick Renewable Energy SPD. This stated that the nature of the particular valley (Coquet Dale) made it unsuitable for wind turbine development.[24]The recent decision of the Court of Appeal in R (ota Watson) v London Borough of Richmond upon Thames [2013] EWCA Civ 513, summarises at [25] to [27] the relevant principles as to how and when a court decides that a consideration was a relevant and material one for the authority to take into account.

Lord Justice Richards concluded at [28] that :

“any distinction between a real possibility that he would reach ‘a different conclusion if he did take that consideration into account and’ and ‘a factor which, when placed in the decision maker’s scales, would tip the balance to some extent, one way or the other’ is to fine to matter…”
[25]Applying this test, I do not consider that the part of the quotation from NKLUIS set out in italics at [22] above was a material consideration in the present application, for the following reasons:- i) The sensitive nature of the landscape was acknowledged in the POR at 7.4 through to 7.9 (set out in Annex 2 below) where its characteristics are described by reference to Natural England’s National Character Assessment, NKLUIS itself, and the Benson Report; ii) At paragraph 7.10 the report stated:- “Due to the characteristics of the landscape surrounding the application site, its varied topography and the limited height of the proposed turbine it is concluded that the turbine would not have significant impact on the characteristics of any of these areas. This is supported by photomontages and wireframe diagrams submitted by the applicant that show that within ranges of just under 1 km and up to almost 5 km the visible impact of the proposed turbine would not be significant and from certain locations the view would be hardly discernible.” iii) By contrast with the Thropton application, a small scale renewable energy development in this area was not contrary to the local plan or supplementary guidance. iv) The distinction between the Thropton and the present application was the precise location of the turbine within the features of the natural landscape, rather than the general description of the landscape type. v) The high value of the landscape was referred to by many of the objectors whose views were accurately recorded in the report and were before the Committee (see appendix to the POR citing Bullock; Murray-John; Andres; Lyons and Key). vi) The high number of local objections was the reason why the officers had referred the application to the Planning Committee rather than decide the matter under delegated authority. The content of these representations would have been prominent in members’ minds. vii) The POR addressed the objectors concerns by reference to the photomontages and the zone of theoretical visibility diagrams submitted by the IP’s planning consultants at paragraphs 7.11 to 7.14.[26]The quotation from NKLUIS would therefore have added little to the information already before the committee. This was a case where a planning judgement had to be exercised about the impact of the development having regard to where it was to be located precisely. The conclusions reached are for the decision-maker rather than this court assigning particular weight to a document that did not purport to be planning policy and does not address the specific features of this application.

Ground 4: Substantial Harm:

[27]The claimant’s final ground relates to the impact of the development on two ancient monuments in the area.[28]The NPPF (2012) states:132. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification. Substantial harm to or loss of a grade 11 listed building, park or garden should be exceptional. Substantial harm to or loss of designated heritage assets of the highest significance, notably scheduled monuments, protected wreck sites, battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites, should be wholly exceptional.133. Where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, local planning authorities should refuse consent, unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss, or all the following apply: - the nature of the heritage asset prevents all reasonable uses of the site; and - no viable use of the heritage asset itself can be found in the medium term through appropriate marketing that will enable its conservation; conservation by grant funding or some form of charitable or public ownership is not possible and - the harm or loss is outweighed by the benefit of bringing the site back into use.134. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset , this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use.”[29]The claimant points to the following responses by the statutory consultees: i) English Heritage (10 December 2012) referring to the impact on Green Castle stated:
“I have examined the potential impact of the proposals on the setting of this site. As you will know the general setting of this earthwork has already been compromised to a large extent, as a scrap metal yard is located in close proximity to the south east. After due consideration I have concluded that there would be less than substantial harm caused to the monument’s setting by the turbine proposals and I would not therefore object to the development proceeding”. ii) The views of the Northumberland National Park’s archaeologist were communicated by email on the 11 December 2012 and stated:- “The potential for the proposal to impact upon heritage sites is low in its proposed location. This is based on an assessment of views towards and views from significant heritage assets, Humbleton Hill fort (SAM) and Homildon Hill (a Registered Battlefield. In my view neither their significance nor appreciation will be significantly diminished”. iii) The County archaeologist provided a full report on 14 December 2012: “The scale of the development proposed would not be significantly intrusive, even taking the movement of the blades into account. The setting of the monument (Humbleton Hill) is informed by its prominent location, use of natural topography and its command views… I do not consider that the proposed development would cause substantial harm to the setting or significance of the scheduled monument in the context of Paragraph 134 of the NPPF…. Taking into account the existing baseline conditions the magnitude of additional harm to the setting of the monument (Green Castle) arising from the proposed development would be low… (with respect to Homildon Hill) the proposed development would not harm the ability to understand or appreciate the narrative of events contributing to the outcome of the battle. The proposed development would therefore not be intrusive to the setting of the battlefield and would not cause harm to the setting or significance of the designated asset in the context of the NPPF…”
The overall conclusion was The overall conclusion was ‘the development will not significantly harm the setting or significance of the archaeological resource.’

The overall conclusion was

[30]I have highlighted in italics the passages on which Mr Harwood QC for the claimant places reliance to contrast harm with significant harm. He submits that although none of these consultees objected to the development, they were by implication advising the defendant that the development would cause harm to Hambledon Hill and Green Castle albeit not significant harm. The inference of harm arising from their responses was sufficient to engage paragraph 134 of the NPPF and required a balance of benefits to justify the harm.[31]Mr White QC for the defendant disputes this interpretation. He submits that it is inconceivable that English Heritage or the National Park archaeologist, each of whom had a function to give informed advice about the impact of development on such heritage assets, would have failed to object if there had been actual harm caused by the proposal. Indeed if there was harm, none of the consultees have spelt out what it was and it would accordingly be impossible for the committee to have balanced the energy benefits of the application against the harm caused. The POR reflected the views of the consultees and was entitled to reach an overall conclusion of no harm. Alternatively, any harm was on such a minimal scale and so unspecific in nature as to fall to be disregarded. In any event, any such harm could not have made a material difference to the planning outcome.[32]Mr Harwood is entitled to submit that an opinion stating that there is no significant harm is not the same as a statement that there is no harm. However, for the harm to be weighed in the balance of paragraph 134 assessment the decision maker must be able to understand what the harm is and what weight can be given to it. Despite the guarded terms of the archaeologists’ assessments, I cannot see how a proposed turbine that is outside the National Park boundary and located on ground about 130 metres high could cause any harm to the setting or significance of Humbleton Hill that is 1.5 kilometres away and on much higher ground (298 metres).[33]The case of Green Castle might be more debatable as the turbine is only 350 metres away. However the English Heritage (2005) guidance makes plain that mere fact of visibility is not a source of harm to every SAM and here the pristine nature of the historic site had already been compromised by a more intrusive and much closer twentieth century development. Any residual harm constituted by simple visibility would in those circumstances be minimal. This was not the kind of intrusive dominating development that diminishes the impact of the monument, its setting or significance.[34]If the fact of visibility alone had to be weighed in the balance, against the development in the application of the relevant planning policies, then the Committee were able to make the assessment for themselves with the information supplied by the consultants, the photomontages and the such like. The POR was not misleading and the final recommendation in favour of the application was precisely phrased in terms of a balance:
“The proposed single wind turbine would contribute to the provision of a clean and unsustainable source of locally produced renewable energy that is consistent with national, regional and local planning policy guidance and targets. The potential impacts on the environment and local communities of the proposed wind turbines are not considered to be of such significance to outweigh the wider benefits of the proposed wind turbine. The proposed development is therefore considered to accord with saved polices from the Berwick-upon-Tweed Borough Local Plan.”
[35]In those circumstances, I do not conclude that to the limited extent that English Heritage and the County archaeologist were indicating that some harm was caused to the setting of Green Castle this could have made any difference to the planning outcome. The POR accurately reflected the responses of each at paragraphs 7.19 to 7.22. The importance of the English Heritage contribution to the issue would have been well-known to members as consideration of the application had been adjourned specifically for its views to be obtained. There were tangible carbon footprint benefits arising from this modest scale development and the intangible nature of any detriment to the SAM would not have outweighed them. Accordingly this ground also fails.

Lack of Promptness:

[36]As I have dismissed the application, there is no need to consider whether relief should in any event have been refused because of the delay. I consider that given this is a challenge by local residents and not a commercial body or directly interested party, the only arguable period in chronology when it could be said the claimant had not been prompt was the period of some 22 days between 27 February 2013 when the residents had informed Richard Buxton solicitors that they had raised the funds and 21 March 2013 when instructions were sent to counsel. As an experienced litigator in this field of law, Richard Buxton would have been well aware of the importance the courts attach to promptness in the context of challenges to planning decisions, and the risk that even a claim that has merits may not result in relief quashing the permission if there is prejudice to the interested party or the requirements of good administration.[37]However, the delay of 10 days or so in sending out instructions, that I consider has not been satisfactorily explained, pales into insignificance in the normal time scale that the court needs to process application and list them if permission is granted. In an area of law so interconnected with European Union principles, where the residual three month time limit is held to apply in the interests of transparency and certainty, a successful developer could have no legitimate expectation that the grant of permission would not be challenged if no proceedings have been instituted within say two months.[38]Permission was granted in this case in September 2013 and because the case was listed in Leeds the final hearing has been achieved in under three months thereafter. Once permission has been granted the court’s focus is on discretionary refusal of a quashing order rather than an extension of time, and the interested party has supplied no information to suggest that there would be particular prejudice if a quashing order had been made. If good grounds for relief had been made out, I conclude that there is insufficient evidence of prejudice to justify refusal of relief on a discretionary basis.[39]However, for reasons given there are no such grounds and this application is accordingly dismissed.