Ecotricity (Next Generation) Ltd R (On the Application Of) v Secretary of State for Communities And Local Government [2014] EWHC 2699 (Admin)

[2014] EWHC 2699 (Admin)Case No CO/1472/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday 27 June 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF ECOTRICITY (NEXT GENERATION) LTDClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr J Pike appeared for ClaimantMr D Kolinsky appeared for Defendant
J U D G M E N T
[1]MR JUSTICE MITTING: On 25 November 2010 the claimants applied to Sedgemoor District Council for planning permission for the erection of four wind turbines for electricity generation to the maximum installed capacity of 9.2 MW at West Huntspill, Highbridge, Somerset. The officer recommended that planning permission should be granted. On 25 April 2012, by resolution of the Local Planning Authority's Development Control Committee, planning permission was refused.[2]The claimant appealed to the Secretary of State who appointed Mr S R G Baird, an inspector with considerable experience of wind farm Inquiries, to conduct the local planning inquiry into the appeal which he held in February and May 2013. On 11 October 2013, the Secretary of State recovered the appeal (in other words, decided to determine it himself) after receiving the Inspector's report. The Inspector's role was therefore not to decide but to recommend. In his report dated 5 November 2013 Mr Baird recommended that the appeal be allowed.[3]The Secretary of State disagreed and refused planning permission on 25 February 2014 (see paragraph 28 of this transcript). The three reasons for refusal given by the local planning authority were:(1) the landscape and visual impact of the development;(2) the cumulative landscape and visual impact considered together with another similar scheme nearby for which planning permission was also refused; and(3) the impact on protected species. Only one issue was ultimately dealt with (?) first. The site is within an area managed by Natural England as "a natural character of the area", the Somerset Levels and Moors. It is flat, open landscape divided by ditches and raised. It is flanked by the Mendips and Quantock Hills, both Areas of Outstanding Natural Beauty. Despite man-made influences, it consists of mainly roads, a railway and overhead power line, the Somerset Levels retain, in the Inspector's words, "a sense of quiet, unspoilt rural charm".[4]The Inspector was provided with a series of photomontages of the site, photographs on which turbines were pictured as near as possible as they would be built. In the Inspector's opinion, in paragraph 20 of his report, the visual effects of the scheme were understated on some, in particular photomontages 1 to 6. He conducted several visits to and around the site and saw it from a variety of vantage points which he described in his report. His conclusion on this issue was set out in paragraph 22:
" ..... I consider the landscape would be able to absorb the albeit substantial, but very slender, scale of these turbines without significant harm. In my experience, wind farms have been successfully absorbed into areas with extensive flat landscapes and substantial skies. The ability of the landscape to accommodate this scheme without unacceptable landscape and public visual impacts is shown by the photomontages looking from VPs 10, 11, 12, 13, 15 and 19. These photomontages and my assessment from viewing the area from these locations suggest that despite the height and spread of the turbines, they would be dwarfed by the landscape and in long range views they would appear as relatively small components of the overall view."
[5]One of the considerations which he was obliged to take into account by Section 38 (6) of the Planning and Compulsory Purchase Act 2004 was the Sedgemoor Local Development Framework Core Strategy "Shaping the Future for Sedgemoor 2006-2007", published in May 2013. It set out two relevant policies, D4 and D14. Policy D4 reads:
"Renewable or Low Carbon Energy Generation: The council will support proposals to maximise the generation of energy from renewable or low carbon sources provided that the installation would not have significant adverse impact taking into account the following factors."
Four factors are then listed of which the first is the most important and relevant:
"The impact of the scheme ..... on ..... character, visual amenity, historic features and bio-diversity."
Policy D14 deals with the natural environment:
"Landscape: Development proposals within the Mendip Hills AONB or the Quantock Hills AONB will only be supported where they enhance or conserve the natural beauty or the exceptional character or quality of the landscape in these areas. Elsewhere in the district proposals should ensure that they enhance the landscape quality wherever possible or that there is no significant adverse impact on local landscape character, scenic quality and distinctive landscape features as identified in the Sedgemoor Landscape Assessment and Countryside Design Summary."
[6]Both policies were informed by paragraphs dealing with the context in which they were proposed. In particular paragraph 5.39 of the document read:
"The council has undertaken a study to assess the potential for renewable and low carbon energy in the district (the EES carbon supplement study). The findings suggest that while the potential renewable or low carbon heat production is limited, there is some capacity at Sedgemoor for renewable potential production. This potential is largely a stand-alone wind projects, which, although not extensive, may be of significance regionally. It will be important to utilise this capacity, estimated to be approximately 28 MW, in order to contribute to regional and national renewable energy targets."
That is plainly a direct reference to a report commissioned from Ove Arup by three district councils, including Sedgemoor District Council, dated October 2010.[7]That report identified five sites within Sedgemoor for the possible siting of wind farms. Site no. 4 was Huntspill. It was expressed as a potential for 28 MW installed capacity. The report also however contained the following qualification:
"It has not been possible to conduct a landscape visual assessment of the site ..... through this study but such assessment would be required for any planning application ..... Such details ..... might further erode or expand the potential sites available within terms."
Thus what the Arup Report did was to identify an area within which 28 MW of installed capacity could have been achieved subject always to a landscape visual assessment of the particular sites on which it was proposed to erect the wind farms.[8]The Inspector's conclusion was set out in paragraph 25 of his report:
"Thus, whilst I consider that within a zone approximately 2km around the site there would be significant landscape and visual impact, having regard to the test posed by CS Policy D4, that change would not be significantly adverse or unacceptable. Overall the substantial and broad scale of the sky and The Levels landscape would allow these defining features to remain the dominant visual and physical characteristics and enable the landscape to absorb the substantial, but very slender, scale of these turbines."
The Inspector also took into account national policy statements EN1 and EN3 which lay heavy emphasis on the need to bring forward renewal electricity generating projects to achieve national and European Union Commission targets. His overall conclusion was set out at paragraph 67:
"I conclude that subject to the imposition of appropriate planning conditions the proposal would not have an unacceptable impact on, landscape character, public visual amenity, ecology and the living conditions of nearby residents and this proposal would not conflict with the objectives of relevant development plan Policies D4, D14 and D16 and national policy ..... "
Hence, he allowed the appeal.[9]The Secretary of State disagreed. The only and determinative question was the impact on landscape and visual amenity. The critical paragraph, the Secretary of State held, was paragraph 13 (I set it out in full):
"The Secretary of State has considered the Inspector's overall findings on the scheme's landscape and visual impact, including his view that, having regard to the test posed by CS Policy D4, the change which the scheme would bring about would not be significantly adverse or unacceptable. The Secretary of State does not share this view. The Secretary of State has had regard to paragraph 15 of the Planning Practice Guidance for Renewable and Low Carbon Energy which states that local topography is an important factor in assessing whether wind turbines could have a damaging effect on landscape and which makes clear that the impact of wind turbines can be as great in predominantly flat landscapes as in hilly or mountainous areas. He has given careful consideration to photomontage VPs 1-6, the Inspector's comments on these at IR20-21 and paragraphs 6.43 – 6.50 of the Council's Landscape Proof of Evidence. In the view of the Secretary of State the evidence shows that the scheme would have a significantly adverse impact from those viewpoints, especially where the view is not screened, for example by trees. In view of this finding, he disagrees with the Inspector that no conflict would arise with CS Policy D4. He also concludes that conflict arises with CS Policy D14 as he considers that the scheme would have a significant adverse impact on local landscape character, scenic quality and distinctive landscape features, albeit this impact is limited to the area within about 2km of the appeal site."
[10]Having disagreed with the Inspector's conclusion on the impact on landscape visual amenity, he went on in paragraphs 20 to 25 to consider the importance of that matter in relation to national policy as set out in EN1 and EN3. His conclusions were as follows:
"20 ..... he considers that the scheme's landscape and visual impact would be significantly adverse from viewpoints within about 2km of the appeal site. Given this finding he considers that the scheme conflicts with CS Policy D4 and D14. 21 The Secretary of State has considered whether there are material considerations which outweigh this conflict. He recognises that the scheme would contribute to targets for the production of renewable energy and that paragraphs 97 and 98 of the Framework make clear that even small scale projects provide a valuable contribution to cutting greenhouse gas emissions. He has taken account of the scheme's benefits in terms of renewable energy, including evidence Document 1 which states that the turbines proposed each have a maximum generating capacity of 2.3MW and that the total installed capacity of the proposal would be 9.2MW. The Secretary of State considers that the proposal offers a considerable benefit in terms of addressing the need for renewable energy and in helping to meet relevant targets for such energy. However, he does not consider that the conflicts he has identified and the harm that this scheme would cause to the landscape and visual impact are outweighed by the scheme's benefits."
[11]As the passages from the Inspector's Report and the Secretary of State's decision letter which I have read demonstrate, this is classically a case for planning judgment. As it happens, the Inspector's judgment and that of the Secretary of State differed.[12]That fact by itself, as Mr Pike for the claimants readily accepts, cannot mean that the Secretary of State has necessarily made an error of law or has erred in any other respect in the approach to his decision. But Mr Pike submits that the Secretary of State has erred in two significant respects. First of all, he says that he has not had regard to the notes about the context in which Policy D4 and Policy D14 are set, as set out in the Local Development Plan itself. He relies on the observations of Lord Justice Richards, with whom the other members of the Court agreed, in Cherkley Campaign Ltd v Mole Valley District Council [2014] EWCA Civ 567 (paragraph 16):
" ..... it seems to me, in the light of the statutory provisions and the guidance, that when determining the conformity of a proposed development with a local plan the correct focus is on the plan's detailed policies for the development and use of land in the area. The supporting text consists of descriptive and explanatory matter in respect of the policies and/or a reasoned justification of the policies. That text is plainly relevant to the interpretation of a policy to which it relates but it is not itself a policy or part of a policy, it does not have the force of policy and it cannot trump the policy."
[13]Mr Pike submits that without express reference by the Secretary of State to his decision as to paragraph 5.39 of the context notes he cannot demonstrate that he has correctly understood Policy D4. I do not accept that proposition.[14]What Ove Arup did and what the Local Plan expressly referred to in paragraph 3 was to identify a site within the area of the three districts in which electricity generation by wind could be achieved. As I have noted, the report itself expressly stated that it had not been possible to conduct a landscape and visual assessment of the areas identified by the study. When a similar proposal was made like this one, what the decision makers had to do was to determine whether, in the light of Policy D4 which was in general terms, it did or did not have a significant adverse impact on landscape character and visual amenity. It does not follow that because wind turbines on this site were, in the judgment of the Secretary of State, unacceptable so no wind turbines within the larger area identified suitable for tagging (?) wind turbines could be erected.[15]What the Secretary of State had to do was to consider this particular proposal in the light of the two policies, D4 and D14. Having done so, the Secretary of State in my judgment reached a clear and adequately reasoned decision to which he was entitled to come. The critical difference between him and the Inspector was not whether or not the local policy effectively required that planning permission for these four turbines be granted; it was whether or not they would have, in the language of Policy D4, a significant adverse impact on landscape character and visual amenity. It expressly factored into the decision letter a reference to paragraph 5.39 of the Core Strategy. It would not have assisted either in the understanding or added to or detracted from its force.[16]For those reasons I reject the attractively advanced submissions of Mr Pike that the Secretary of State's decision letter was in fundamental error either because it did not adequately set out reasons or because the reasons set out were inadequate to justify the decision.[17]The second ground of challenge is that the Secretary of State should not have done a desk exercise when the Inspector had conducted not only the exercise of assessing the photomontages but also conducting extensive visits to and around the site. He draws attention to guidance given by Scottish Heritage, (see paragraph 30 of this transcript) there being no guidance by English Heritage, which is he said, and I accept, widely accepted when siting of wind turbines is in issue; the document in which it is given is Good Practice Guidance of 29 March 2006, commissioned by and adopted by Scottish Heritage. It is not necessary for me to cite extensively from it (citation from paragraph 7 will do):
"It is important to stress that visualisations, whether they are hand drawn sketches, photographs or photomontages, will never appear 'true to life'. Rather, they are merely tools to inform an assessment of impacts; and, like any tool, their application requires careful use. Interpretation of visualisations always needs to take account of information specific to the proposal and site, such as variable lighting, movement of components, seasonal differences and movement of the viewer through the landscape. Thus visualisations in themselves can never provide the answers – they can only inform the assessment process by which judgements will be made."
There is no suggestion that the Secretary of State or Mr Pickles conducted some of these (?).[18]Consequently, Mr Pike submits that the Secretary of State was in a significantly worse position than was the Inspector to make a judgment about the impact of the proposals on landscape and visual amenity.[19]The first difficulty with that submission is that it is settled case law that in a recovered case there is in general no obligation on the Secretary of State himself to conduct a site visit or to commission a civil servant to do so. I need cite only one authority for that proposition in Novalong Ltd v Secretary of State for Communities & Local Government [2008] EWHC 2136 Admin where Mr Jsutice Sullivan (as he then was) said:
"57 ..... The court hearing an application under section 288 is exercising a legal judgment: was the inspector's conclusion so unreasonable as to be unlawful? Whereas, the Secretary of State on appeal under section 78 is exercising a planning judgment: does she agree or disagree with the views expressed by the inspector? Subject to giving adequate reasons she is entitled to disagree with the inspector on matters of planning judgment, even though she will not have seen the site herself. It is in the nature of recovered appeals that the decision­taker will not have seen the site and will be relying upon the inspector's report and the documents, maps, photographs, etc, accompanying the report. In the present case those included, not merely the environmental impact assessment, also a landscape appraisal and a number of drawings, including a height contour plan and an illustrative master plan."
[20]The Secretary of State was supplied with details of just such in this case. They included the target (?), and of course the experts relied on by the planning authority. They also - and this is of particular significance in this case - included the Inspector's own detailed comments about the photomontages and the impact which the turbines had made on Mr Eversey (?), the local planning authority's expert. He accepts at paragraph 20 - "In the light of the above, I agree with the LPA that for the number of photomontage vantage points the significance of the ..... scheme is understated. The particular view that was affected was vantage points 1 to 6 ..... In this area I consider ..... wind farm height and the impact of the development is significant in environmental ..... terms. The key impacts on the immediate landscape ..... by drivers ..... on the A38 which borders on [the park] and on the raised banks of the Huntspill River. Thus given their height, the turbines and the rotating blades will have a significant impact on the immediate landscape where they will become a major component in that landscape and add a significant public visual impact."[21]In his decision letter (at paragraph 13 which I have already cited), the Secretary of State expressly had regard to those points by the Inspector about those photomontages which the Secretary of State had to see for himself. He also had regard to paragraphs 6.43 to 6.50 of Mr Eversey's (?) written evidence which contained his assessment of the view points from photomontages and vantage points 1 to 6 - - I will start that sentence again, in Mr Eversey's view, the impact of the construction of the wind turbines on the views shown on the photomontages 1 to 6 would be either major or moderately major.[22]Taking all those factors into account, what the Secretary of State had was evidence, including evidence from those who had visited the site extensively, that the evidence that he had in the photomontages considerably understated the picture and that the effect that the erecting of the turbines would have, as the Inspector put it, [was] a significant effect in environmental stated terms. This is therefore not a case in which the Secretary of State has simply based his judgment on his view as opposed to more extensive material. He has accepted the Inspector's conclusions based, in part, on his own view of the site but reached a different conclusion. That is a classic exercise of planning judgment. It is not one with which this court can interfere. There is nothing special about the characteristics of this site or of this application which requires exceptionally the Secretary of State or a civil servant to visit the site personally before disagreeing with the views of an Inspector who has.[23]Those being the two principal grounds on which Mr Pike relies, I dismiss this appeal.[24]I mention in passing that what he said was a third ground of appeal was in fact no more than anodyne observation on the fact that the Secretary of State had regard to his own national guidance to the effect that it was important in assessing whether the wind turbines would have a damaging effect on landscape. That effect could occur on flat landscapes as on mountainous landscapes.[25]For those reasons this challenge is dismissed. I described it as an appeal. I should correct that and say "challenge".[26]MR PIKE: There were two matters in the judgment. I wonder would it assist if I mention a very minor correction.

MR JUSTICE MITTING: Certainly.

[28]MR PIKE: Relatively early on in the judgment you said that the Inspector had allowed the appeal and the Secretary of State disagreed. The Inspector in fact just recommended that the appeal be allowed.

MR JUSTICE MITTING: Quite right - recommended.

[30]MR PIKE: The second point was in relation to the SNH guidance, Scottish Natural Heritage is the name of the organisation. In addition, you said there was no equivalent English Heritage guidance; it would in fact be guidance from Natural England.

MR JUSTICE MITTING: Quite right.

[32]MR PIKE: That was the only point.[33]MR JUSTICE MITTING: Thank you for that. I will correct that in the transcript.[34]MR KOLINSKY: May I raise the question of costs?

MR JUSTICE MITTING: Yes.

[36]MR KOLINSKY: We have an agreed position. There is a summary schedule. We have done a downwards revision to take account of the fact that the matter proceeded more swiftly today than was budgeted in the schedule. I will be corrected if I am wrong, but I understand that there is agreement that you make an order in the Secretary of State's favour for £8,866.[37]MR PIKE: Yes. We are content with that figure.

MR JUSTICE MITTING: If you are content so am I.

[39]MR PIKE: One brief matter. I do ask your Lordship for permission to appeal. I appreciate that you probably will not accede to my request. In respect of grounds 1 and 2, I would ask you for permission to appeal: in ground 1, principally because with the greatest respect your judgment did not address the point central to my submissions of what was said in the text at 5.39 of the Core Strategy about the importance of utilising the potential capacity, that that was something that had to be borne in mind when deciding whether there was conflict on D4. That is the first point.[40]In relation to the second ground, I observe that the SNH guidance and its application is, I submit, a very important general issue. It was not considered by the Secretary of State. There has been no suggestion that it was. This is a matter that the Court of Appeal ought to consider given the number of other similar proposals where the same issue arises.[41]For those two reasons I would ask your Lordship to grant permission to appeal.[42]MR JUSTICE MITTING: I refuse permission to appeal. I do not believe that you have a reasonable prospect of success on an appeal ground. Nor do I believe that they raise some other compelling reason for the matter to be considered by the Court of Appeal.[43]Thank you for your succinct submissions. In the context of planning cases they were succinct.

Cited in 1 later judgment