“Failed to take into account a material consideration, namely advice contained within the letter of the Office of the Deputy Prime Minister dated25 November 2002 which amended advice in paragraph 40 and the footnote on page 16 of the Annex of Circular 11/95 on the Use of Conditions in Planning Permission”
“9. The appellant has suggested possible mitigation measures by the application of ‘Non-Auto Initiation Zones’ (NAIZs) over the proposed turbine. However, the MOD has stated that it requires the mitigation to be site specific to the proposal and it has not received a site specific mitigation proposal which it can assess to determine whether the proposal could be mitigated. On this basis, the MOD has maintained its objection. 10. Section 5.4 of the National Policy Statement EN-1 refers to impacts from the development of energy infrastructure on civil and military aviation and defence interests. The appellant has referred to paragraph 5.4.18 which indicates that, where proposed energy infrastructure development would significantly impede or compromise the safe and effective use of civil or military aviation or defence assets, Grampian conditions could be considered which relate to the use of future technological solutions to mitigate impacts. However, the paragraph also suggests that, where technological solutions have not yet been developed or proven, the likelihood of a solution becoming available within the time limit for implementation of the development consent needs to be considered. The MOD has indicated at the hearing that a technological solution has not been developed or proven for the current radar at RRH Staxton Wold and that there may not be a solution. 11. The appellant has supported the use of a Grampian condition in the current appeal by reference to other appeal decisions, including a recent decision on the proposed erection of 9 wind turbines at Fraisthorpe. However, that appeal decision indicates that an agreement had been entered into with the MOD for the design and implementation of an identified and defined mitigation solution. In the current appeal, the appellant has not put forward any such mitigation solution for the MOD to approve. Therefore, no direct comparisons can be made. 12. In the case of the current appeal, the appellant has not demonstrated that its suggested use of NAIZs or other technological solutions following the trials and modelling of the new TPS-77 AD radar capabilities would be able to be successfully applied, as no site specific mitigation proposals have been put forward. As such, there is nothing before me to demonstrate that a solution to ensure that the effects on the radar would be adequately mitigated would become available within the time limit for implementation if I granted planning permission. Therefore, I find on this main issue that the imposition of a Grampian condition would not offer an acceptable solution and there is insufficient evidence to show that the proposal would not cause any significant harm to the safety provided by the Air Defence Radar Service at RRH Staxton Wold.”
“The Inspector is not writing an examination paper on current and draft development plans. The 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. A reference to a policy does not necessarily mean that it played a significant part in the reasoning: it may have been mentioned only because it was urged on the Inspector by one of the representatives of the parties and he wanted to make clear that he had not overlooked it. Sometimes his statement of a policy may be elliptical but this does not necessarily show misunderstanding. 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 or proposed alteration to policy.”
“It is no part of the court’s duty to subject the decision maker to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to the parties, they are well aware of the issues involved and of the argument employed at the enquiry, it is not necessary to rehearse every argument relating to each matter in every paragraph.” (ii) In similar vein is the general statement by Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment[1993] 66 P & CR 263 at 271 – 272 where he said: “There are dangers in over-simplifying issues of this kind as also of over-complicating them. I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication.” (iii) Finally in R (Newsmith Stainless Limited) v Secretary of State for Environment Transport and the Regions[2001] EWHC 74 (Admin) Sullivan J (as he then was) said: “6 An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits. 7 In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments…Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable. 8 Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task…”
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
“What is appropriate depended on the circumstances and was to be determined in the exercise of the discretion of the planning authority. But the mere fact that a desirable condition appeared to have no reasonable prospects of fulfilment did not mean that planning permission must necessarily be refused…”
“First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable.”
“Failed to provide any or any adequate reasoning as to how he concluded that the proposed development would have an unacceptable moderate adverse effect on the appearance of the surrounding area overall and/or acted perversely.”
“20. Views of the turbine from the surrounding roads would be intermittent and would mainly be seen by passing motorists who represent low sensitivity receptors. They would be screened by the vegetation and buildings alongside the roads. As such, the visual intrusion experienced would be limited. The turbine would be visible from stopping places on some of the roads, such as on the A165, but it would be seen in the context of the road traffic and other man made features and buildings and, in some of these views, would be screened by intervening vegetation. 21. The wind turbine would be clearly visible from many of the houses in the area and in particular those on the northern edge of Leven. It would be most apparent from north or north east facing first floor windows where there is limited screening from garden boundary treatment. However, most of these views include man made features, such as telecommunications infrastructure and the proposed wind turbine would be far enough away from these properties to prevent it from appearing overbearing or dominant. Furthermore, most of the windows of these properties do not directly face the site of the turbine. Therefore, although these are regarded as potentially highly sensitive receptors, any adverse effects on views from these properties and residential amenity would be slight to moderate, but not significant. 22. The turbine would be visible from all of the sites that I visited. I agree with the Council these sites would be medium sensitivity receptors due to the temporary nature of their occupancy and the activities that are carried out on them. At my site visit, I observed that existing mounding and planting and the relative orientation of the receptors would have a significant mitigating effect on the visual prominence of the turbine from these sites. Whilst the turbine would be clearly visible from some locations within the site, no substantive evidence has been provided to demonstrate that this visual presence would have any significant harmful effect on the existing use of the sites for tourism. 23. I agree with the Council’s officer in the Committee Report that views from the public footpath network would be intermittent as a result of the topography of the landscape and existing vegetation. Although the turbine would appear as large, prominent structure in some of these views, it would generally be screened by the trees and hedgerows that line the footpaths. As such the users of the footpaths, who are considered to be medium to high sensitive receptors, would experience a slight to moderate adverse effect.”
“Based on the above, I find on this main issue that the proposal would result in moderate harm to the landscape in the immediate vicinity, as the height of the proposed turbine structure would make it stand out as a highly noticeable new feature on the skyline in some views, particularly from residential properties and the public footpath to the north of Leven. As such, it would fail to accord with Beverley Borough Local Plan 1996 (BBLP) Policy E3, as it would not minimise its visual impact on the surrounding areas. However, it would not cause any significant harm to wider views or character of the surrounding area, as the topography and vegetation would ensure that it would not dominate the landscape. It would also accord with BBLP Policy IN 13, as it would not significantly detract from the character, appearance or amenity of the area or conflict with neighbouring uses including tourism. ”
“Failed to provide any or any adequate reasoning as to how, by reason of causing a moderate adverse effect on the appearance of the surrounding area, the proposed development failed to represent sustainable development in accordance with the National Planning Policy Framework.”