Howell & Ors v Stamford Renewables Ltd & Ors [2014] EWHC 3627 (Admin)

Case No CO/2189/2014[2014] EWHC 3627 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 7 th November 2014
Before
MR JUSTICE CRANSTON
Between
HowellClaimantSecretary of State for Communities and Local GovernmentClaimantWaveney Borough CouncilClaimantStamford Renewables LimitedClaimantHowell-and-Secretary of State for Communities and Local Government-and-Waveney Borough Council-and-Stamford Renewables Limited Claimant 1 st Defendant 2 nd Defendant 3 rd 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)
Richard Harwood QC (instructed by Richard Buxton) for ClaimantRichard Honey (instructed by Treasury Solicitor) for First DefendantJeremy Pike (instructed by Mike Stamford – Public Access) for Third DefendantHearing Hearing dates: 28-29 October 2014Judgment

I INTRODUCTION

[1]This is a yet another challenge to a planning permission to erect a wind turbine, this time one to be located at Laurel’s Farm, Shipmeadow, Near Beccles, Suffolk, on the edge of the Norfolk Broads (“the Broads”). The application in this case is made under section 288 of the Town and Country Planning Act 1990 and CPR Part 8 to quash the decision of a planning inspector (“the Inspector”) who granted permission. The claimant contends that the decision was unlawful because the Inspector misinterpreted his duty with respect to the Broads; misapplied planning policies; failed to have regard to the energy output of the turbine; and failed to give any proper reasons for finding that there was no effect on the setting of listed buildings.[2]The claimant, with his wife, is the owner and occupier of Crake Hall, which is 500 metres from, and the nearest dwelling to, the proposed turbine. Crake Hall is outside the Broads. The claimant is a supporter of the local action group, HALT, which is opposed to unsuitable wind turbine development. The first defendant, the Secretary of State for Communities and Local Government, appointed Mr R P E Mellor, as the planning inspector. Crake Hall and the proposed turbine are in the area of the second defendant, Waveney District Council (“the Council”). The third defendant is the developer, Stamford Renewables Ltd based in Norwich. II BACKGROUND Planning Application and Environmental Assessment

II BACKGROUND

[3]In November 2012 the developer applied for planning permission to the Council to erect a single wind turbine of up to 2MW rated output capacity, a 60 metre high wind mast, and ancillary infrastructure at the site. The Council had indicated that the environmental impact assessment, required for the project, should include all information reasonably required to assess the effects of the project and that it would need to cover, in terms of potential impacts, areas including noise, landscape and visual impact, impact on the historic environment (in particular the impact on the setting of nearby listed buildings), and the likely impact – as suggested by the Broads Authority – on the landscape and the perception of the experience of the landscape. The Council referred to Natural England’s strong recommendation of the use of Landscape Character Assessment based on guidelines produced by the Landscape Institute and the Institute for Environmental Assessment. “Natural England”, it said, “encourages all new developments to consider the character and distinctiveness of the area …”[4]The Environmental Statement produced by the developer referred in its non-technical summary to the elements of a modern wind farm. One was the wind turbine, and the non-technical summary gave as an example a Vestas V90 2MW. It stated that it was not possible at that stage to specify precisely either the manufacturer or the model which would be chosen and that EC/UK procurement and tendering procedures would need to be followed after planning permission had been granted. However, for the purposes of the Environmental Statement, assessments had been based upon the Vestas V90 2MW wind turbine. Should planning consent be given, the model of turbine chosen would have to match or better the environmental performance of the turbine on which the assessment was based. It was anticipated that a single wind turbine at Laurels Farm would generate an annual average of approximately 5,256MW of electricity taking into account a 30 percent capacity or load factor. For a single Vestas V90 wind turbine rated at 2MW the maximum annual generation forecasted at a load factor of 35 percent, which was regularly achieved by a wind turbine in Lowestoft, would be 6,132MW. For the purposes of the Environmental Statement the capacity factor of 30 percent had been assessed as most likely, taking into account the single turbine at Ness Point, Lowestoft and the North Pickenham turbine near Swaffham in Norfolk.[5]Chapter 9 of the Environmental Statement covered landscape and visual impact assessment. It stated that the effects of the proposal on the Broads landscape character areas were not significant, ranging from low to negligible magnitude, with localised effects of medium magnitude on the area nearest the site. That was identified as not being “of Broads character” but was judged to have the same character as the adjacent undesignated landscape.[6]“Cultural heritage and historic landscape assessment” was chapter 11 of the Environmental Statement. It assessed the impact of the proposed turbine on seven sites. There was no impact on four of these. The church of St Bartholomew at Shipmeadow, the church of St Andrew Ilketshall and the church of the Holy Trinity at Barsham were all assessed as having high sensitivity and the turbine would compete with each of them for visual dominance. However, in each case the magnitude and significance of the impact were classed as negligible.[7]The noise chapter of the Environmental Assessment was prepared by Hayes McKenzie Partnership Ltd. Only the wind blowing from the turbine towards nearby houses was assessed since the wind blowing in the opposite direction would mean noise being significantly lower, especially where there was shielding between the site and the houses. Noise predictions were undertaken in a number of modes in which the noise output was reduced by reducing the rotational speed of the turbine with a resultant reduction in electricity energy produced. Mode zero is the standard mode of operation and modes 1 and 2 are reduced noise modes. Predictions were carried out using a Vestas V90 2MW turbine operating in mode 2. Hayes McKenzie Partnership Ltd noted that under a worse case, downward wind noise propagation conditions noise levels might be up to 2dB higher. Noise predictions were carried out for a wind speed of 10m/s at 10m height, which represented downwind propagation in all directions simultaneously although that was impossible in practice. For the claimant’s property, Crake Hall, the noise level in the field adjacent was 33dB.[8]The chapter on socioeconomic impacts in the Environmental Statement covered predicted electricity production for wind turbines set at 30 percent capacity. It was adapted from the performance figure delivered for the East of England in 2008. Ness Point, Lowestoft and North Pickenham, Norfolk, both achieved a much better 35 percent load factor in 2008 and continued to perform above 30 percent. In one of the appendices the calculation of energy generation used the formula: rated output capacity of the turbine x capacity or load factor of 30 percent x number of hours in the normal year. That translated to a calculation of 2MW x 0.30 x 8760 hours = 5,256MWHr per annum.

Council refuses planning application

[9]Shortly after the developer lodged the planning application the claimant wrote to the Council to confirm he and his wife’s objection. In a letter dated 10 December 2012 the claimant stated that their main objection was the small amount of power generated by the turbine, which did not warrant the hugely detrimental impact on the surrounding area. English Heritage wrote in mid December that it did not need to be consulted further on the application.[10]In early January 2013 the Council’s design and conservation officer criticised chapter 11 of the Environmental Assessment relating to cultural heritage and historic landscape. The study was dismissive of the contribution of the setting to the overall heritage significance of rural vernacular buildings, she said, asserting that their significance lay in their building fabric alone. She strongly disagreed with that. The particular character of the setting of farmhouses in the Waveney area contributed enormously to their significance. That was by far the largest category of listed buildings in the vicinity of the proposal and that character needed proper analysis before impact could be assessed. She noted that chapter 11 addressed only seven heritage assets. She disagreed with the assessment that the impact was only negligible or non-existent. English Heritage had previously expressed concern over the impact on Shipmeadow Church and Mettingham Castle and she remained concerned about a number of buildings, some of which were not even dealt with in chapter 11.[11]The Broads Authority was consulted about the planning application. At a meeting on 1 February 2013 the planning committee of the Broads Authority raised an objection to the application on the grounds of its adverse impact on the landscape of the Broads. The officer’s report for that meeting explained that the neighbouring local planning authorities at Waveney and South Norfolk had undertaken landscape characterisation work and had found that the landscape outside the Waveney floor on the valley sides and beyond formed part of the setting of the typical Broads landscape of low lying marsh and grazing land. The work of these authorities emphasised the underdeveloped and tranquil character of the area. The Waveney Valley exhibited subtle differences in character to the rest of the Broads area, with the valley itself relatively narrow and well pronounced valley sides. That increased the sense of connectivity to the adjacent landscapes which lay outside the Broads and which formed the setting of the typical Broads landscape. There was considerable inter-visibility between the areas identified in the Broads Landscape Assessment and those of the landscape types identified in the adjoining Council areas.[12]The Development Control Committee of the Council met to consider the planning application on 19 March 2013. The officer’s report recommended that permission be refused. That report recorded the objections which had been raised to the proposal. HALT had commissioned a report on the impact of the proposal on the landscape, justifying its objections on this basis. As regards power generation it used a 25 percent rather than a 30 percent capacity factor as the more probable, which produced a 15 percent reduction in the developer’s anticipated output. HALT stated that the developer’s Environmental Statement had ignored the checklist recommended by English Heritage regarding the impact on listed buildings and was in total agreement with the comments by the Council’s conservation officer.[13]The Suffolk Preservation Society also supported the Council’s design and conservation officer regarding the setting of heritage assets. The impact upon the medieval churches was of particular concern given that these were intended to be the most significant built form in the landscape and designed to have a dominant presence on the skyline. The magnitude of the adverse impact on the immediate setting of Barsham and Ilketshall Parish Churches alone illustrated the unacceptable harm associated with the development. The Suffolk Preservation Society also stated that the small amount of electricity to be generated by the proposed turbine, whose output might have to be even further limited because of the need to mitigate noise and harm to wildlife, meant that there was no counterbalancing substantial public benefit justifying the substantial harm to heritage assets.[14]The officer’s report noted that the most relevant local policy was Development Management Policy DM03 with its presumption in favour of renewable energy schemes. The officer’s report noted that the Council’s design and conservation officer had raised concerns about the Environmental Statement’s conclusion on the impact on some listed buildings in the vicinity. The officer’s report said this:
“While it is considered that the Environmental Statement may have underestimated the impact of the turbine on some heritage assets, on balance it not considered that this impact is sufficiently significant to warrant refusal of the application.”
[15]The planning committee refused the application. The first reason given concerned the implication for the landscape: the proposed turbine would have a significant detrimental visual impact on the character of the area. Secondly, the committee refused permission because of the detrimental impact on the amenities of nearby residents by virtue of noise. While the developer had suggested that the noise at the claimant’s property, Crake Hall, would be below the limits contained in the guidance, ETSU-R-97, that did not include any margin for error or uncertainty in the source noise data, nor did it include the 2dB worst case correction mentioned in the report. If these were included in the calculation the predicted level exceeded the ETSU lower daytime limit by between 1 and 2dBA.

The appeal to the planning inspector

[16]The developer appealed under section 78 of the Town and Country Planning Act of 1990 against the Council’s refusal to grant planning permission. Its grounds for appeal were lodged in May 2013. Various materials were produced for the appeal.[17]The local residents group, HALT, in its statement of case said that it would present evidence, amongst other things, about the claimed benefits in terms of energy generation of the proposed turbine. HALT’s evidence on this was prepared by Geoffrey Sinclair. He said that the nominal figure of 30 percent which the developer cited for on-shore locations failed to reflect the great variation in the performance of individual sites. The onshore figure for the East of England region was between 23.7 and 28 percent. The higher figures for North Pickenham and Ness Point were unrepresentative. Using a factor of 25 percent, rather than the 30 percent figure of the developer, he calculated the output of the turbine had been exaggerated in the application to the extent of 20 percent. In HALT’s opening statement to the inquiry, it asserted that its evidence would lead to the conclusion that in terms of relevant planning policy the energy benefits to be gained did not outweigh the significant harms which would result from the turbine. HALT repeated the point in his closing submissions.[18]Mr Griffiths for HALT also commented that the proposal militated against planning policy CS16 in that it was inconsistent with the historic landscape “which remains in the form of a series of local churches …” The Council also presented evidence to the inspector on this. Its landscape expert was Nicholas Newton. He stated that when viewing the site from the north east and across the Waveney river meadows, Barsham Church was the only significant built element of the view from the public footpath, Angles Way, which runs along the north bank of the river. The inclusion of the turbine in that view would have an adverse impact on the longstanding and largely unaltered setting of the church. Neil Buchanan, who has lived in Laurels Farmhouse all his life, gave evidence that the turbine would seriously detract from the picturesque rural and tranquil setting. Many views from within the curtilage of the church grounds would have views that would be poorer if the turbine was erected.[19]Another aspect of HALT’s case concerned noise. The developer had not guaranteed that the turbine would be operated in mode 2, its quietest mode, and if it were to be operated in its next quietist mode, mode 1, the noise assessment would fail at Crake Hall, the claimant’s property. If operated in mode zero, the noisiest but most efficient mode, the turbine would probably fail the ETSU guidelines at a number of other properties, not just Crake Hall.[20]For the developer evidence on noise was prepared by Hayes McKenzie Partnership Ltd. It noted the propagation of noise from a source to the receiver varied according to atmospheric (especially wind direction) and ground conditions. In making predictions, downward noise propagation was assumed together with source noise levels as warranted by the manufacturer. Operational noise levels at receptor locations could be up to 2dB higher and this worse case assumption was essentially an uncertainty factor and was believed to encompass all uncertainties relating to the noise propagation predictions. In its closing submissions to the Inspector the developer stated(1) that although at Crake Hall the predicted noise from the proposed turbine would be on the noise limit, but not above it, this was on the basis that 2dB had been added to the predicted noise imissions to provide a margin for error (as recommended by the Institute of Acoustics Guidance) and(2) that the lower data in noise limit was being used although ETSU allowed a higher daytime noise limit.[21]There was a statement of common ground on noise agreed between the expert for the Council and Hayes McKenzie Partnership Ltd for the developer. That agreed that since no data on uncertainty had been provided in respect of turbine noise levels, the factor of plus 2dB should be added. It was also agreed between the experts that the format of the noise conditions presented in the Institute of Acoustics guidance represented current best practice and that if planning consent were granted this format of noise condition should be applied.[22]The Council’s closing submissions covered a range of matters including the point that it was the natural beauty of the Broads, not simply where they were viewed, which was the subject of the statutory duty under the Norfolk and Suffolk Broads Act 1988. That necessarily included views into and across the Broads. The character of each of the landscapes surrounding the Broads was part of their visual context. The developer’s expert on landscape and visual impact was criticised for failing to acknowledge the importance of the continuous experience of seeing the turbine in views to the ridge from the long distance footpath of Angles Way. That continuous view to the left of the path and over the ancient settlement of Barsham, with its grade I listed church with characteristic round tower, would be seen to a recreational walker against the steady revolving mechanical feature of the turbine.[23]The Council’s closing submission acknowledged that it was now common ground that to cover uncertainties in the sound output of the wind turbines and propagation of sound a correction factor of 2dB should be added to the estimated noise levels set out in the developer’s Environmental Statement. That brought the levels at the claimant’s property, Crake Hall, to the limit set applying ETSU and the limit proposed in the proposed conditions to be attached to the permission. As regards the energy output from the turbine, the Council’s closing submission said that under ideal conditions the output was likely to be about a third of the 2MW. In the end this was a “very, very small” output. Under new planning guidance the need for renewable energy did not override environmental protection. The average output of less than 1MW of electricity was enough perhaps for a small village.[24]In his closing submissions for the developer Mr Pike stated that although at Crake Hall, the claimant’s property, the predicted noise from the turbine would be on the noise limit, but not above it, this was on the basis that 2dB had been added to the predicted noise emissions to provide a margin for error as recommended by the Institute of Acoustics and agreed with the Council’s expert. That lower daytime noise limit was being used, although ETSU did allow a higher daytime noise limit. As far as the impact on listed buildings, the Council agreed with the assessment in the Environmental Statement that there was no impact, and English Heritage had raised no objections. It was clear that the turbine would not be seen from Barsham Church or its immediate surrounds. The Council’s planning officer had fairly accepted that if policy DM27 of the development plan was read strictly, any harm to any landscape area in the district engaged a requirement to rule out alternative, more appropriate sites and the policy would not be compliant with the NPPF.

The Inspector’s decision letter

[25]The Inspector held an inquiry over six days in October and November 2013 and conducted a number of site visits. His decision letter was issued on 2 April 2014. The Inspector concluded that there would be some adverse effect on the landscape but not enough to amount to a significant adverse effect, some visual harm, and an adverse effect on the convenient operation of flying activities at a neighbouring airstrip. He concluded overall that the development satisfied the relevant development plan policies and that there were significant benefits from the development.[26]At the outset of his Decision letter, the Inspector identified the provisional main issues as the effect of the development on the landscape character of the area; the living conditions of the nearest residents in terms of outlook (incorporating other visual impact); the living conditions of nearby residents in respect of noise; and whether any identified harm in these respects would be outweighed in the benefits: [5]-[6].[27]The inspector began the part of his decision letter discussing planning policy echoing the words of section 38(6) of the Planning and Compulsory Purchase Act 2004, that he was required to determine the appeal in accordance with the development plan unless material considerations indicated otherwise. He then noted that the National Planning Policy Framework (“NPPF”) was generally supportive of renewable energy infrastructure, even small scale projects. At paragraph [11] the inspector stated that policy CS16 was not fully consistent with the more specific policy and directly relevant policy tests set out for low carbon and renewable energy in the more recent DMP policy DM03 which, unlike CS16, also included provision for the balancing of harm with benefits. Referring to DM03, he said that he interpreted it to mean that some adverse effects could be accepted and that the identification of sufficient benefits can effect whether such adverse affects were to be regarded as significant: [12]. Policy DM03 remained more consistent with the NPPF than did CS16 and therefore merited greater weight.[28]In terms of DM27, the inspector noted that the site lay within area H4, Tributary Valley Farmland. He then said:
“[T]hose provisions are not consistent with the different and more specific test for renewable energy policies in DM03 to which more weight should be attached”: [16]. He added that Tributary Valley Farmland “lack any national landscape designation. They are only local landscape character area designations and it is not explained [in DM27] why these have different treatment from other local landscape character areas”: [17]. The inspector noted that the wording of DM27 created a sequential test which was not consistent either with the former national policy PPS7, Sustainable Development in Rural Areas, or with the similar current national policy in the NPPF which superseded it. Paragraph 116 of the latter only applied to “major” development proposals within one of the nationally designated areas. Literal application of DM27 would create a potentially much more onerous requirement since it could apply to development in areas which were neither nationally designated or even within the setting of such areas: [18]. The sequential test would be particularly onerous and impracticable to apply to wind energy proposals: [19]. Thus the inspector concluded: “20. It is concluded that the DM27 sequential test is not consistent with the framework. There is also potential conflict with a different specific test for large scale renewable energy infrastructure set out in policy DM03 and its supporting text. I therefore accord the DM27 sequential test little weight. However, the policy merits full weight in relation to the consideration of the effect of development on landscape character areas.”
The Inspector returned to this in his overall conclusion as follows:
“137. Having regard to these benefits as required by Policy DM03 and which would contribute towards that policy’s renewable energy targets, it is concluded that the identified adverse effects upon the landscape in particular do not qualify as significant adverse effects in the terms of that policy. Neither do the landscape and other identified adverse effects here outweigh the significant benefits either in the terms of that development plan policy or of national policy. The proposal is accordingly in compliance with the most directly relevant development plan Policy DM03 and the first part of Policy DM27 which in turn are broadly consistent with national policy. That compliance merits greater weight than either the other more general development plan policies or the SPD and other local guidance documents where there is any conflict.”
[29]As regards Landscape Character, the Inspector stated that analysis of the particular effect of the proposal on the landscape character areas on and around the appeal site, including within the Broads, required attention to be given to the baseline character of the landscapes, their sensitivity to change, and the magnitude of change which would result. That would inform the degree of significance of the landscape impact and the extent of the harm: [36]. In terms of baseline character, he noted the churches at Barsham and Shipmeadow, their respective distances from the turbine site of about 1km and 1.7km, but that they are associated with groups of trees and are not particularly prominent in the landscape: [39]. As to sensitivity, the closest Broads area to the site was LCA0 land, not of Broads character and not assessed in the 2012 LSS study commissioned by the Broads Authority: [43], [49]. On magnitude, the Inspector invoked the methodology used for landscape and visual impact assessments (“LVIA”), high, medium, low and negligible. Within the nearest part of the Broads, views towards the turbine would be within the LCA0 land and for about 1km from the turbine would be as the dominant landscape characteristic of highmagnitude, except where screened by trees: [65]. For these nearer parts of LCA 2 and LCA3 the magnitude was medium; formore distant parts it was low.[30]In terms of overall significance of landscape effects, the Inspector used the LVIA classification: “major” significance, as indicating an effect very important in the planning decision making process; “major-moderate”, an effect material in the planning process; and “moderate”, an effect not considered material: [66]. The significance of landscape effects would be major up to 1km in the nearest part of Area H4 and adjoining parts of Areas LCA0 and I2, and major-moderateup to about 2km where the turbine would be visible as a prominent landscape feature in parts of the LCA2 and LCA3: [71]. However, that type significance did not automatically translate as a “significant adverse effect” for the purposes of DMP Policy DM03: [72].[31]The Inspector then concluded on landscape effects that an adverse effect on the landscape immediately around the turbine was a near inevitable effect for any large turbine development in a rural landscape. As to the effects on the designated Broads landscape, the turbine was not within the Broads or the enclosed valley. It was in the H4 character area, and although that at least in part contributed to the setting of the Broads, the turbine would be beyond an apparently wooded crest and at the outer edge of that area: [73]. The Broads itself had experienced human intervention and still had 70 drainage pump towers and mechanical revolving sails, albeit not now within this part of the Waveney Valley: [75]. The Inspector dealt with the section 17A duty under the Norfolk and Suffolk Broads Act 1988 as follows:
“80…It can be concluded that the natural beauty of the Broads landscape itself would not be affected, simply because the turbine would be outside the designated area and would not obstruct views into it. Whether or not the enclosure of the valley is a key landscape characteristic, the turbine would clearly be located outside of the enclosed valley and would not reduce that sense of enclosure. Its apparent scale would be diminished by distance. NPS EN-3 confirms that the sight of a turbine outside the designated area should not be a reason for refusal. All the key characteristics of the Broads landscape would remain visible and the turbine’s dominance of its immediate surroundings would not extend as far as those areas defined as of Broads character. It would be a new feature on the horizon seen against a small part of the wide sky but would not fail to conserve the natural beauty of the Broads. 81. There was some debate at the Inquiry as to whether consideration of effects on the Broads should relate to the whole of the designated area or only to the Waveney Valley near the appeal site. The S17A duty clearly applies to all the designated land and its constituent parts and it should not be necessary to demonstrate some effect on the whole Broads area. However it is relevant here that the small LCA0 part of the designated area closest to the turbine is not defined in the Broads LCA as of Broads character and that the landscape character perceived within that area is akin to that of the adjoining nondesignated landscape. Thus any changes seen within or from that landscape would have less effect on perceptions of the Broads than would changes seen within or from areas of Broads character that include LCA2 and LCA3. 82…[T]he turbine would not conceal or replace key characteristics of the landscape of the Broads or its natural beauty or prevent the public enjoyment of its landscape qualities.”
[32]Under the heading Visual Impact, the Inspector said that section 17A also requires regard to whether enjoyment by the public would be promoted. That was partly a landscape consideration. In visual terms the consideration was whether perceptions of that natural beauty and public enjoyment of it would be significantly affected by the sight of the turbine: [84]. The turbine would be prominent on the skyline from some important viewpoints within the Broads including from Geldeston Lock, parts of the Waveney River and from parts of Angles Way and other public rights of way used for recreation. Some members of the public would consider the change adverse whilst others may view it more positively or indifferently. “Whilst it cannot be concluded that the turbine would itself actively promote public enjoyment of the area’s natural beauty, neither can it be concluded that there would be direct conflict with that purpose or that people would be deterred from visiting the Broads or the Waveney Valley”: [88]. The Inspector summed up these landscape and visual effects in his overall conclusions: there were no significant adverse effects on the landscape [135].[33]Noise was the next issue addressed in the decision letter. At paragraph [97] the Inspector recorded that because of issues of uncertainty raised by the Council, the two parties agreed that a factor of 2dB should be added to the warranted sound power levels for the wind turbines in accordance with the Institute of Acoustics Good Practice Guide. This would raise predicted noise levels at Crake Hall, the claimant’s property. He also recorded the agreement between the experts about the format of the noise condition in the permission, noting that there were still unresolved issues: [99]. One of these uncertainties, agitated by the Council, was the turbine inevitably operating above the limit under the condition. As to this the Inspector said: [100]… “[I]t is not inevitable that the noise limits would be exceeded. It is not more than a possibility, particularly as the limit already includes a 2dB margin for uncertainty in relation to sound power levels. Neither does it mean that if noise levels occur above the limits they must thenceforth be suffered at the affected property. The noise limits in the condition could be enforced by the Council…The financial risk of proceeding with the development would lie with the developer. If the developer was not confident that the noise limits could be met and sufficient energy be generated then the development would be unlikely to proceed.” On noise the Inspector concluded that the noise imissions were likely to remain reasonably low and compliant with the ETSU-R-97 guidance, and could be adequately controlled by condition: [106].[34]When considering “Benefits”, the Inspector noted that national guidance in PPG (March 2014) confirmed that increasing the amount of energy from renewable energy will help to make sure the UK has a secure energy supply, reduce carbon emissions to slow down climate change, and stimulate investment. This was reflected in the Waveney Core Strategy: [119]. Waveney district was especially likely to be affected by climate change: [120]. National targets for renewable energy would not be met unless there was adequate provision at local level, and adopted development plan in DMP Policy DM03 included a target to seek 30% of electricity in the district from renewable sources by 2020: [121]. The Inspector then said:
“122. Opponents of the appeal scheme have suggested that the 2MW turbine would make an insignificant contribution towards meeting the target. However that is a typical capacity for a wind turbine which is near the top end of the scale for onshore turbines. The only way to markedly increase capacity would be to add further turbines which would have a greater impact on their surroundings. Indeed the number of turbines proposed at this location has previously been reduced because of such impacts. As was pointed out at the Inquiry, the 2MW capacity could be equivalent to as many as 100 of the 20m high turbines preferred by the Broads Landscape Sensitivity Study if the output of each such turbine was a typical 20kW. That suggests that a 2MW capacity would be relatively high.”
[35]The Inspector referred to paragraph 98 of the NPPF (small scale projects provide a valuable contribution) and to the absence of evidence that the renewable energy targets can be met without additional onshore wind turbines. He concluded that the development would have significant benefits to weigh with the identified harm: [124]. These benefits were significant, which compared with the identified adverse effects upon the landscape in particular, which did not qualify as significant adverse effects in the terms of policy DM03: [137].[36]Under the heading Other Matters the Inspector considered the listed building issue. He said that he paid particular regard to the statutory duty in relation to listed buildings and their settings as set out in section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990. He added:
“125…No such building or area would be directly affected. I agree with the decision of the Council not to advertise the development as affecting the setting of any such building or area as I do not consider that any settings will be materially affected. In particular English Heritage has not raised any objection to the effect on the church at Shipmeadow, which was the subject of an objection to a previous scheme and a reason for refusal of that scheme. I also consider that the church at Barsham is too far away and subject to filtered views such that its setting also will not be materially affected, whether in views to or from the church, notwithstanding that the turbine and the church would appear in the same views from some locations. The setting of the churches would be preserved.”
III THE CLAIMANT’S CHALLENGE Ground 1: The Broads statutory duty

III THE CLAIMANT’S CHALLENGE

[37]The Broads comprise over 300 square kilometres of wetland landscapes in east Norfolk and Suffolk. The Broads Authority describes it as “the UK's largest protected wetland and boast[ing] a quarter of its rarest species. The broad, shallow lakes are man-made rather than natural. They began as pits dug for peat to provide fuel during medieval times. Over the centuries water levels rose, the peat diggings became flooded and by the 14th century they were abandoned.” The special characteristics of the Broads, as summarized from the Broads Plan 2011, are the wide, open landscape, the winding waterways, the big skies, the abundance and diversity of nature, the sense of space, tranquillity and wildness, the local character of beautiful churches, windmills and quiet villages, and the opportunities for boating and sailing.[38]The Broads Authority was constituted under the Norfolk and Suffolk Broads Act 1988 (“the 1988 Act”) with a general duty to manage the Broads for the purposes of conserving and enhancing the natural beauty, wildlife and cultural heritage of the Broads; promoting opportunities for the understanding and enjoyment of the special qualities of the Broads by the public; and protecting the interests of navigation: section 2(1). Under section 2(4) the Broads Authority is under a duty to have regard to the national importance of the Broads as an area of natural beauty and one which affords opportunities for open-air recreation; the desirability of protecting its natural resources from damage; and the needs of agriculture and forestry; and the economic and social interests of those who live or work there.[39]In 2006 the Broads Authority undertook a landscape character assessment of different parts of the Broads (“the Broads LCA”). It divided the Broads into landscape character areas (“LCAs”) based upon common landscape characteristics. In 2012 the Broads Authority commissioned the landscape consultants, LUC, based in London, to prepare a study for planners and development management officers when considering planning applications for renewable energy schemes: the Broads Landscape Sensitivity Study for Renewables and Infrastructure (“the LSS”). In the report LUC built on the 2006 study.[40]The proposed turbine at Laurel’s Farm will be 750 metres from the Broads. It will be closest to a landscape character area identified in these studies as LCA0, which is said to be “not of Broads character”. In both the 2006 Broads LCA and the LSS, area LCA0 was not separately assessed but was regarded as having the character of the neighbouring area. The turbine will be about 1 km from the nearest edge of area LCA2, and about 1.2 km from the nearest edge of area LCA3. In the two studies, LCA2 was characterized as predominantly a calm and tranquil pastoral area with marshland and watercourses lined with poplars. Area LCA3 included a river floodplain with mixed farming, some loss of field boundaries, significant river traffic and some road noise. As a result of the LSS in 2012, this was updated and there was reference for LCA3 to wide open landscapes and winding waterways, but with overhead power lines reducing the sense of tranquillity locally, and valley slopes and woodland blocks reducing outward views.[41]The “neighbouring area” in this case, to which LCA0 refers, is where the turbine will be located and the claimant lives. It lies in the local character area which has been classified by LUC, in a separate landscape character assessment in 2008 for the Council, as landscape type H4, Mid Tributary Valley Farmland. The landscape of the area is cut by tributaries draining into the River Waveney. The land use in the valley bottom is a mixture of arable, pasture and settlement. It forms part of the landscape setting of the Broads abutting the Broads Authority boundary along much of its length.[42]This first ground of challenge is that the Inspector made an error of law in misinterpreting his duty with respect to the Broads.Under section 17A of the 1988 Act, in exercising or performing any functions in relation to, or so as to affect, land in the Broads, the Secretary of State (and hence the Inspector) “shall have regard to the purposes of—(a) conserving and enhancing the natural beauty, wildlife and cultural heritage of the Broads;(b) promoting opportunities for the understanding and enjoyment of the special qualities of the Broads by the public; and(c) protecting the interests of navigation.”[43]For the claimant, Mr Harwood QC contended that the purpose of conserving natural beauty applies to the whole of the area designated as the Broads, regardless of whether as with areas classified as LCA0 it might be thought not to have a “Broads character”. As the Planning Practice Guidance correctly recognises the duty is relevant in considering development proposals that are situated outside the area’s boundaries, but which might have an impact on the setting and implementation of the statutory purposes of the protected area. In Mr Harwood’s submission, since the Inspector found that there would be major landscape impacts on the Broads at paragraphs [67] and [71], he erred in failing to find that there was harm to its natural beauty. The Inspector had misinterpreted section 17A by taking too narrow a view of what may fail to conserve natural beauty.[44]In this case, Mr Harwood contended, the Inspector’s finding in paragraph [80], that the natural beauty of the Broads would not be affected because the turbine would not obstruct views into it, was a narrow and legally erroneous interpretation of the conservation of that natural beauty. It ignored the dominance of some land within the Broads area by the turbine because that land was not of Broads character. What was proposed was a massive structure, less than half a mile from the Broads. In reaching his conclusion the Inspector had erred in law because the statutory duty under section 17A of the 1988 Act applied to the natural beauty of all the land within the Broads area. The Inspector’s conclusion in paragraph [82] that “the turbine would not conceal or replace key characteristics of the landscape of the Broads or its natural beauty or prevent the public enjoyment of its landscape qualities” omitted the harm which he had identified such at paragraph [88].[45]Mr Harwood submitted that the Inspector had fallen into the same trap as had occurred in East Northamptonshire DC v Secretary of State for Communities and Local Government[2014] EWCA Civ 137; [2014] 1 P & CR 22. That was a case involving a listed building. Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides for the general duty as respects granting planning permission for development which affects a listed building or its setting: the planning authority must “have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.” In that case it was common ground between the parties that “preserving” meant doing no harm: [16]. That did not mean that no harm could be done: however, there was a presumption against the grant of planning permission and considerable importance and weight had to be given to the desirability of preserving the setting of heritage assets when balancing the proposal against other material considerations: [27]-[28]. The planning inspector in that case had not done that.[46]In my judgment theEast Northamptonshire DCcase is not directly applicable in this case since the 1988 Act requires the planning authority not to have “special regard” to the matter as does section 66(1), but simply to have regard to it. In this respect the 1988 Act follows other planning legislation, for example, the Town and Country Planning Act 1990, s. 70(2); the National Parks and Access to the Countryside Act 1949, s. 11A(2); and the National Environment and Rural Communities Act 2006, s. 40(1). To have regard to a matter means simply that that matter must be specifically considered, not that it must be given greater weight than other matters, certainly not that it is some sort of trump card. It does not impose a presumption in favour of particular result or a duty to achieve that result. In the circumstances of the case other matters may outweigh it in the balance of decision-making. On careful consideration the matter may be given little, if any, weight.[47]In my view the Inspector did have regard to the matters set out in section 17A of the 1988 Act. First, he referred specifically to the statutory provision at a number of points, and echoed its language in his conclusions. Secondly, when the Inspector found that the landscape impacts on the Broads would be “major”, that was because he was using that term in a particular manner, which he fully explained at paragraphs [67] and [71]-[72] i.e., very important in planning terms. Thirdly, the Inspector explained at several points how he took into account natural beauty and he analysed its application in the circumstances of the case. He explained that there would be no adverse effect on the Broads and no harm to its natural beauty: [80], [82].[48]Finally, the Inspector stated expressly in paragraph [81], quoted earlier, that “the s17A duty clearly applies to all the designated land” i.e. the Broads, and was clear elsewhere about this. He did refer to whether land had “Broads character” but as we have seen that arose from the Broads Authority’s own approach to landscape character assessment (supported by the experts, LUC), and was adopted by the Council in their considerations and their submissions to the Inquiry. To characterise land as LCA0 is not to downgrade it. In my view, when considering the purpose of conserving and enhancing the natural beauty of the Broads it is relevant to consider the extent to which the land affected exhibits the characteristics of the Broads landscape, since those characteristics are what create “the natural beauty... of the Broads”. Moreover, as the Inspector explained in paragraph [81], that is how the land is perceived by observers.[49]Thus while I am troubled by a turbine which will be taller than St Paul’s in London (to use Mr Harwood’s graphic description), I conclude that the Inspector complied with his statutory duty under s17A. He had regard to the statutory purposes set out there and explained the weight he gave to them and other matters. He carefully assessed the impact upon the Broads and found that, if permitted, the turbine would lead to some adverse impacts. However, he reached an overall conclusion that it would not fail to conserve and enhance the natural beauty of the Broads. That was a matter of planning judgement and in my judgment there is no legal flaw in this regard.

Ground 2: Planning policy

[50]The relevant parts of the development plan for this appeal are first, policy CS16, dated 2009, Natural Environment. That proposes that the Council will work with partners to protect and enhance the natural and historic environment of the area. “[P]roposals should conserve and contribute towards the enhancement of the landscape character biodiversity and geodiversity of the district, including … the visual setting of the Norfolk and Suffolk Broads.” Secondly, policy DM03, dated 2011, Low Carbon and Renewable Energy, provides that proposals for standalone energy generation and other CO2 reductions will generally be supported. Renewable energy schemes are permitted under the policy where “there are no significant adverse effects or cumulative adverse effects on the landscape, townscape and historic features; there are no significant adverse effects on the amenities of nearby residents by way of noise, dust, odour or increases in traffic; and the wider environmental, economic, social and community benefits directly related to the scheme outweigh any potentially significant adverse effects.”[51]Thirdly, there is policy DM27, dated 2011, Protection of Landscape Character. It provides that proposals that have an adverse effect on the landscape will not be permitted unless it can be demonstrated that they cannot be located on alternative sites which would cause less harm, and the benefits of the development clearly outweigh any adverse impacts. That policy adds that developments affecting the Broads area and its setting, and Tributary Valley Farmland areas, will not be permitted unless it can be demonstrated that there is an overriding national need for development and no alternative site can be found.[52]Relevant at the national level is the National Planning Policy Framework (“NPPF”), 2012. Paragraph 93 sets out the delivery of renewable energy as essential to the economic, social and environmental dimensions of sustainable development. Paragraph 98 refers to planning applications being approved if the impacts are or can be made acceptable. It also provides that the need for renewable energy is not required to be demonstrated and that even small scale projects can make a valuable contribution to cutting greenhouse gas emissions. Paragraph 116 provides that any permission should be refused for “major developments” in designated areas, including the Broads, except in exceptional circumstances and where it can be demonstrated that they are in the public interest. Paragraph 215 provides that due weight should be given to relevant policies and existing plans according to their degree of consistency with the Framework, the closer the policies in the plan to the policies in the Framework, the greater the weight it may be given.[53]Mr Harwood QC submitted that the Inspector erred in law in attaching very little weight to and failing to reach conclusions upon policies CS16 and most of DM27 of the development plan. He misinterpreted policy and made errors of law as to the relationship between aspects of the development plan and between the development plan and national policy. This led him into a further error of law in failing to reach conclusions upon the application of development plan policies to the scheme. In particular, he failed to apply the development plan test in CS16 of no harm to the setting of the Broads; the requirement to consider alternatives in DM27; and the overriding national need test in DM27. He also failed to interpret DM03 in conformity with CS16 and to treat the harm to the Broads as significant adverse harm to landscape under DM03.[54]Mr Harwood began with section 19(2)(a) of the Planning and Compulsory Purchase Act 2004, which meant that when preparing its planning documents containing CS16, DM03 and DM27 the Council had to have regard to national policies and advice contained in guidance issued by the Secretary of State. Those plans could only have been adopted if they were considered to be justified, effective and consistent with national policy: ss. 20(5),(7), 22(2)-(4); PPS12, paras. 4.52, 5.2(3). Further, DM03 and DM27 had to be in conformity with the Core Strategy: Town and Country Planning (Local Development) (England) Regulations 2004, r. 13(6). In addition, there was a presumption in favour of the development plan: Planning and Compulsory Purchase Act 2004, s. 38(6); NPPF, paras. 196, 210.[55]With that as background, Mr Harwood submitted that the application was contrary to DM27 because of its effects on the Broads and on an area of Tributary Valley Farmland. The Inspector set aside policies CS16 and all but the first paragraph of DM27. The Inspector accepted that the proposed turbine would be within the setting of the Broads in his discussion of landscape effects. Yet he failed to assess the application against CS16 or all but the first paragraph of DM27. As a matter of law he was not able to discount CS16 because of its alleged lack of consistency with DM03; the latter was required to be in conformity with the Core Strategy on its adoption. To put it another way, the Inspector simply had to take policy DM03 as being in conformity with the Core Strategy, including CS16. In any event, submitted Mr Harwood, the two policies were consistent, since CS16 is dealing with a specific landscape effect (visual setting of the Broads) whereas DM03’s approach to significant adverse effects is on the landscape generally in that it prohibits large-scale renewable energy infrastructure within areas of national importance unless they avoid harm. A breach of CS16, by failing to conserve the setting of the Broads, is a significant adverse effect on landscape under DM03.[56]As to national policy, the Inspector disregarded most of DM27 on the basis that it was not consistent with PPS 7 or the NPPF. But in Mr Harwood’s submission DM27 did not have to be consistent with national policy, although it had to be adopted having regard to it. In as much as DM27 was inconsistent with national policy that was the consequence of its lawful adoption. It is not open to a planning inspector to reject an adopted development plan policy by disregarding it entirely, reducing its weight or outweighing it with other material considerations because he considers it to be inconsistent with pre-existing national policy. Such an approach is contrary to the purpose of the legislation, which is to determine local policy in the light of national policy and to give primacy to the adopted local policy.[57]Thus in Mr Harwood’s submission the Inspector’s decision is contrary to Padfield v Minister of Agriculture, Fisheries and Foods [1968] AC 997, 1030,since he was using his discretion whether to grant planning permission to thwart or run counter to the policy and objects of the planning legislation. While subsequent national policy may be another material consideration to weigh against the presumption in favour of the development plan, it does not undermine the statutory status of the plan. As in this particular case the Inspector said that the subsequent national policy is not materially different from the pre-adopted national policy, PPS7. Paragraph 215 of the NPPF is concerned with giving effect to changes in national policy contained in the NPPF by downgrading the weight given to now inconsistent pre-existing local policy. It does not undo the status or weight attached to policies which have been approved in the light of unchanged national policy.[58]Despite the cogency and forensic skill with which Mr Harwood QC made these submissions, I have concluded that the Inspector did not fall into the traps Mr Harwood identified. First, the case law acknowledges that where a planning policy is over-taken by a later policy it should be given less weight or not applied: City of Edinburgh Council v Secretary of State for Scotland[1997] 1 WLR 1447, 1450B-G, 1458E-F. Moreover, in R (Cummins)vCamden LBC[2001] EWHC 1116 (Admin) Ouseley J stated that in cases of policies pulling in different directions an inspector should consider “which is the dominant policy: whether one policy compared to another is directly as opposed to tangentially relevant, or should be seen as the one to which the greater weight is required to be given”: [164].[59]Most relevant in this regard, however, isLark EnergyvSecretary of State for Communities and Local Government, Waveney District Council [2014] EWHC 2006 (Admin), where Lindblom J considered two of the very policies - DM03 and DM27 – in play in the current case. Lark Energywas an application for a renewable energy development and the judge held that the Secretary of State was in error in upholding the refusal of planning permission. In seeking to quash the Inspector’s decision, the claimant submitted that DM03 was the dominant policy because it related specifically to the development of the kind proposed. Lindblom J recognised the different approaches taken by DM03 and DM27, the former dealing specifically with renewable energy proposals and providing that permission will generally be granted despite adverse (even significantly adverse) effects, the latter being a general policy which is distinctly less supportive of development than policy DM03. Importantly, Lindblom J said:
“51. It follows that a proposal for renewable energy development may satisfy Policy DM03 but not Policy DM27. There are potentially competing policy presumptions: the presumption in Policy DM03 in favour of such development even if it would harm the landscape, so long as the harm would not be “significant”, and the presumption against such a proposal in Policy DM27. … 56. In these circumstances I think the Secretary of State had to explain how he would reconcile his conclusions relating to those two policies when he considered whether the proposal complied with the relevant provisions of the development plan. Because he was disagreeing with the inspector he could not rely on the inspector's reasoning. 57. Nowhere in his letter did the Secretary of State say that in his view the proposal was in accordance with the development plan or that it was not. He did not acknowledge any tension between Policy DM03 and Policy DM27, or between the conclusions he had reached when applying each of those two policies to the proposal before him…Should he give precedence to Policy DM03 or should he regard Policy DM27 as dominant? He could have taken the view that in this case Policy DM27 should prevail. But if this was his view the reasons for it are not clear in his decision letter, and I think they should have been.”
[60]The approach Lindblom J held that the planning inspector in Lark Energy should have adopted is in accordance with what the Inspector did in the present case. He considered the policies at length. He noted the need according to the NPPF to give weight to relevant policies according to their degree of consistency with its terms. He also noted the extent to which the NPPF supports renewable energy. He concluded that DM03 was more consistent with the NPPF than was CS16. He found CS16 to be inconsistent with the more recent, more specific and directly relevant policy in DM03. Of course that was a matter of planning judgement for him to decide. He also found in relation to DM27 that more weight should be attached to DM03 as it provided a different and more specific test for renewable energy developments and also because the final part of DM27 set-up a sequential test which was inconsistent with the NPPF. He then applied DM03 as the most relevant policy.[61]All of this is in accordance with Lark Energy and with the pragmatic nature of planning law. Itcannot be said that the Inspector was precluded from this approach as a matter of law. He was not attacking the validity of any development plan document, or a conclusion on the general conformity of one document with another. Rather, in the context of this specific application he was considering the compatibility of the relevant policies. As to national policy, the NPPF, I conceive of the Inspector trying to give the development plan effect in the light of the NPPF, certainly not disregarding it. He ascribed weight to DM27 according to its consistency with the NPPF, as the NPPF requires. Whether or not the NPPF is similar to the previous national policy does not affect this exercise. At the end of the day the Inspector reasoned that it would not be reasonable to apply the sequential test parts of DM27 in this particular case. I reject the claimant’s arguments in relation to this ground.

Ground 3: Energy output of turbine

[62]The claimant’s case here was that the Inspector failed to have regard to a material consideration, namely, the efficiency and energy output of the turbine and consequently the extent of any benefit to be weighed in the balance. At paragraph [122] the Inspector described the benefit as the rated capacity of the turbine (2MW) without making any assessment of the amount of energy that would be generated or the capacity factor in the light principally of how the wind was blowing. Yet he concluded that the benefit was significant (at paragraph [137]) and that meant compliance with policy DM03 since there were not significant adverse effects under it. In Mr Harwood QC’s submission, this omission of capacity and the energy to be generated was particularly important given the planning practice guidance and the need for this turbine to operate in its quietest (and so least efficient) mode to avoid unacceptable noise impacts, a point the Council had made at the Inquiry. In its evidence HALT through Mr Sinclair had questioned whether the figure of 30 percent capacity used by the developer was justified.[63]None of these points I find persuasive. The July 2013 Planning Practice Guidance for Renewable and Low Carbon Energy, paragraph 38, onlyadvises that since with wind turbines the energy captured varies with location, and even by turbine in an individual wind farm (depending on wind speed), “this can be useful information in considering the energy contribution to be made by a proposal, particularly when a decision is finely balanced.” That something may be “useful information” is hardly a basis for making it a mandatory consideration to which regard must be had.[64]Mr Harwood cited R (Holder)vGedling Borough Council[2014] EWCA Civ 599, but that was a different case where the site for the proposed turbine was in the Green Belt, and thus the decision-maker had to consider whether there were “very special circumstances” to permit the development. In those circumstances it was not surprising that the Court of Appeal should conclude that the officer was in error in advising that the efficiency and energy output of the turbine were not material considerations: [22].[65]CompareBayliss vSecretary of State for Communities and Local Government [2014] EWCA Civ 347. There the Court of Appeal upheld a decision by a planning inspector to grant permission for wind turbines in an area of outstanding natural beauty where he had come to the conclusion that the benefits outweighed the potential harm. One ground of challenge was that the inspector had erred in how he dealt with the issue of the capacity factor, not expressly opting for either of the two figures put forward, 20 per cent or the 30 per cent. Sir David Keene (with whom Laws and Jackson LJJ agreed) said that on an inherently uncertain and variable matter like that, the inspector was not required to do so. Because the limited degree of harm that would be caused would be outweighed by the environmental and economic benefits he did not need to quantify those benefits more precisely than he did: [36].[66]Both Mr Honey and Mr Pike submitted that this case was comparable to Bayliss: given that the benefits in this case well outweighed the harm there was no need for the Inspector to reach any conclusion on capacity and energy generation. I do not think I need to go so far, although the Inspector certainly gives the impression of concluding that the case in favour of granting permission was strong: see especially DL [137]. In my view the real reason that the Inspector did not need to address the issue specifically was that it was not one of the principal, important, controversial issues in the case. It is horn book law that a planning inspector need only “deal with the substantial points that have been raised”, “the principal important controversial issues”, and does not have “to deal with every argument”:South Bucks DCvPorter (No 2) [2004] 1 WLR 1953, [24], [34], [36], per Lord Brown.[67]In this case the application was for a turbine “up to 2 MW”. The Environmental Statement had adduced evidence from other turbines in the region and calculated electricity generation on the basis of a 30% capacity factor. At a very early stage, just after the application was made to the Council, the claimant raised in very general terms the low amount of energy the turbine would generate, but did not make the point in a detailed way. Certainly before the Inspector HALT flagged the issue in opening and its witness, Mr Sinclair, gave evidence that the average East of England load factor ranged between 23.7 and 28 percent and that the two examples of existing turbines relied upon by the developer were not representative. But the issue was not mentioned in HALT’s closing submissions. The Council had criticised the energy contribution of the scheme but in its closing submissions said that capacity would be about one third and less than half of the installed capacity of up to 2MW. Albeit that these were rough figures the fact is that they were higher than the developer was using. That to me makes clear that this issue was not a principal important controversial issue in dispute before the Inspector. Regarding the reduced power output of the turbine, if it needed to be operated in a mode to meet the noise limits, we shall see that the Inspector was well aware of that.

Ground 4: Noise

[68]Mr Harwood QC’s simple point here was that the Inspector acted irrationally in failing to impose a condition requiring the turbine to be operated in its quietest mode during daylight hours, since it is only in that mode that the noise conditions might be met. That followed because the developer’s noise predictions were based on the proposed turbine operating in its quietest mode (mode 2), rather than the standard mode (mode 0) which generates sound pressure levels which are 3 dB higher. In mode 2 the developer calculated that the noise level at the claimant’s property, Crake Hall, would be 33dB but accepted that, under worst case downwind noise propagation conditions, noise levels may be up to 2 dB higher. The developer accepted at the Inquiry that the noise at Crake Hall should be assessed as being on the 35dB limit. Mr Harwood highlighted that at paragraph [100] of his decision letter the Inspector accepted a possibility that the noise limits would be breached and that the operator would either need to find a way to operate within the limits or cease operations. That in his submission failed to appreciate the reality that the turbine would be operated over limit, complaints would be made and these would then be followed by a lengthy investigation and enforcement steps, all the while to the detriment of the claimant and his family.[69]Despite robust submissions by Mr Honey for the Secretary of State, and Mr Pike for the developer, the potential noise from this proposed wind turbine is troubling. That is especially so for the claimant although HALT raised amenity issue for residents generally. Having given the matter careful consideration, however, I cannot find that the condition imposed fails the high threshold of irrationality required to quash it. There is no doubt that the Inspector gave the matter careful thought as well, and at the end of the day concluded that it was likely that the levels in the condition would be met and that these would be adequate. For Crake Hall, he accepted that the predictions showed that noise levels would match the 35dB limit in the guidance and that it was possible that the turbine would at times operate above the limits set by the condition. There was some comfort since the predictions had built in a 2dB margin for uncertainty and it was a worst case scenario. The Inspector stated the blunt truth: it was up to the operator to make sure it complied with the condition or close down.[70]As to the claimant’s specific suggestion that there needed to be an additional condition as to mode of operation, that was never before the Inspector. In their statement of common ground the two noise experts certainly did not suggest anything along these lines nor, as far as I can see, did anyone else. The condition they agreed was in accordance with the Institute of Acoustics guidance. Thus it was not territory which the Inspector needed to enter: it was not for him to formulate a condition prescribing the turbine’s mode of operation or other matters to ensure compliance with the condition the experts suggested for the permission: see Top Deck HoldingsvSecretary of State for the Environment[1991] JPL 961, 964-965.

Ground 5: Listed buildings

[71]Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 creates a presumption against the grant of permission for development which causes harm so that a planning authority must have strong reasons for granting permission contrary to the presumption: R(Garner)vElmbridge Borough Council[2011] EWHC 86 (Admin), [8], per Ouseley J. It means that the desirability of preserving listed buildings must be given considerable importance and weight, and that the general duty has particular force if harm would be caused to the setting of a Grade 1 listed building: East Northamptonshire DCvSecretary of State for Communities and Local Government[2014] EWCA Civ 137; [2014] 1 P & CR 22, at [29], per Sullivan LJ.[72]The first point arising under this ground is the claimant’s contention that the Inspector erred as to the Council’s position in the sentence in paragraph [125] quoted above:
“I agree with the decision of the Council not to advertise the development as affecting the setting of any such building or area as I do not consider that any settings will be materially affected.”
In fact, the claimant submitted, the Council considered that the development would have an effect on the setting of listed buildings.[73]A great deal of energy was expended on this issue and it was one of the reasons that Lang J adjourned the hearing of the case in July. In my view the matter could have been resolved in accordance with the basic learning that in a decision letter a planning the inspector is not writing an examination paper and decision letters must be read (to use the various judicial formulations) in good faith, in a straight-forward manner, fairly and as a whole, and without excessive legalism: South Somerset DCvSSE [1993] 1 PLR 80, 83E-F; Clarke HomesvSecretary of State for the Environment (1993) 66 P&CR 263, 272; South Lakeland DCvSecretary of State for the Environment[1992] 2 AC 141, 148G.[74]Here it will be recalled that the Council’s conservation officer criticized the Environment Statement in a very general way for its failure to take account of a number of listed buildings. The officer’s report to the Council’s planning committee recognised the conservation officer’s concerns and said that the Environmental Statement may have underestimated the impact on some heritage assets but that the impact was not sufficiently significant to warrant refusal. In refusing permission the Council made no mention of listed buildings. Before the Inspector, while some like Mr Buchanan raised the issue, neither the Council nor HALT advanced a case that there was harm to the setting of listed buildings, and neither took this point in their closing submissions. (In closing the Council mentioned Barsham Church but that was within a passage dealing with effects on landscape and visual amenity.) There was no expert evidence at the Inquiry to suggest that such an impact would arise. It is pie in the sky to suggest that the non-church buildings which the conservation officer mentioned were somehow before the Inspector.[75]In other words, the impact on listed buildings was not a principal, controversial issue before the Inspector. As I have said the Inspector conducted several site visits and it is quite clear to me that he reached the conclusion that, as he says in the second part of the disputed sentence, he did not consider that any settings would be materially affected. So even if there was an error as to the Council’s position, that would not make his conclusion flawed. And it meets the second aspect of this ground, that the Inspector failed to give adequate reasons for his conclusion that there was no effect on the setting of listed buildings.[76]In any event we now have the Inspector’s notes and a perusal of them, coupled with the explanation given by Mr Pike who was at the Inquiry, make it clear how the first part of the sentence quoted should be read. The Council had advertised the development as it was a major application affecting a public right of way but in that did not mention listed buildings. On the morning of the fourth day of the Inquiry counsel for the Council explained this and stated that if the Inspector considered that the setting of a listed building may be affected it would be necessary to issue an advertisement and allow time for responses. (Whether this is right or wrong as a matter of law is beside the point.) The Inspector was simply recording this in the first part of the sentence, namely that the Council had decided not to advertise the development as affecting the setting of any listed building.[77]Thus in my judgment the decision letter does not record any mistake on the Inspector’s part about the Council’s position, and in the circumstances his reasons in paragraph [125] on the substantive issue were perfectly adequate. I regard the first aspect of this ground as a storm in a teacup. Moreover, I would not wish to encourage the disclosure of an Inspector’s notes. These are prepared as an aid memoire for the Decision letter, not as a record of what occurs at an Inquiry. Disclosure can, in any event, and to mix idioms, lead matters down unnecessary rabbit holes.

IV TURBINE TYPE APPROVED IN THE PLANNING PERMISSION

[78]The Inspector granted planning permission for “a single wind turbine 80m hub height and 125m to blade tip of up to 2MW rated output capacity; ... in accordance with the terms of the application, Ref DC/12/1332/FUL, dated 13 November 2012, subject to the conditions set out on the attached schedule.” Condition 5 provides as follows:
“Approved plans 5) Except as specifically provided for by other conditions, no electricity shall be exported until it has been completed in all respects strictly in accordance with the submitted plans and details and in compliance with any conditions imposed by the Local Planning Authority. Schedule of approved plans: Drawing number 0170/02/101 revision H (the site plan) Drawing number 0170/02/201 (details of the proposed sub station) Drawing number 0170/02/202 (cross sections through the access track, cable trench and crane platform) Elevation drawing number TO5 0011-5737 Ver 02”
Drawing 0170/02/101 revision H states in the legend box:
“Turbine Model Vestas V90 Hub 80m Blades 3 @ 45m long each Output 2MW Foundation 20m x 20m”
Schedule of approved plans: Drawing number 0170/02/101 revision H (the site plan) Drawing number 0170/02/201 (details of the proposed sub station) Drawing number 0170/02/202 (cross sections through the access track, cable trench and crane platform) Elevation drawing number TO5 0011-5737 Ver 02” Hub 80m Blades 3 @ 45m long each Output 2MW Foundation 20m x 20m”

Output 2MW

[79]The notation for revision G said “Site development area revised to include turbine sweep”. Elevation drawing number TO5 0011-5737 Ver 02 shows a turbine with marked dimensions of 80m hub height, 90m diameter blades, with a rear fin at 83m height [2/15/1958]. The drawing contains a Vestas proprietary notice, confirming that the turbine shown is a Vestas model.[80]On behalf of the developer, Mr Pike submitted that the particular turbine model or type which was assessed by the Inspector was only a candidate model. That was the approach with wind turbine applications and appeals, and the same applied here. The purpose of assessing a candidate turbine was to demonstrate that a turbine, which did not exceed the turbine dimensions proposed in the application for planning permission, could meet the relevant noise limits derived from the approach recommended in the ETSU-R-97. Depending upon what turbine models might be available at the time the proposed development was constructed, the turbine deployed on the site may be the type of turbine modelled in the noise assessment purposes, or it may be some other type of turbine.[81]By contrast Mr Harwood QC submitted that as a result of the fact that drawing 0170/02/101 revision H is a drawing produced by a particular turbine manufacturer, Vestas, and bears the name of that manufacturer and a particular turbine model it produces, the effect of condition 5 of the planning permission is that that turbine model, by that manufacturer, is what must be erected.[82]At the hearing I was puzzled as to whether the Inspector had fixed the particular turbine type in the planning permission. On principle a planning permission for the erection of a structure is to be interpreted having regard only to the planning permission itself, its conditions, the application drawings and any documents incorporated into the permission by reference: Barnett v Secretary of State for Communities and Local Government[2009] EWCA Civ 476, [2009] J.P.L. 1597, at [17]-[22]. In Barnes v Secretary of State for Communities and Local Government [2010] EWHC 1742 (Admin) at [7]-[8], per George Bartlett QC, wind turbines of a particular size were the subject of assessment in the Environment Statement. The judge held that it would not be open to the local planning authority when approving the specification and design to give approval to turbines that differed in their dimensions.[83]There is no doubt that in the present case the Inspector was approving a wind turbine in accordance with the dimensions in the diagrams. These could not be exceeded. However, from the terms of the Decision Letter itself, and in particular the description of development in paragraph [1], the Inspector was granting permission for a turbine of certain dimensions and an installed capacity of “up to” 2MW. The conditions do not further limit that description of the development. The grant of planning permission for a machine of up to2MW shows to my satisfaction that the possibility of erecting more than one model of turbine was in contemplation. There is thus an ambiguity in the Barnett material. Thus in my view it is permissible to go to other documentation such as the Environmental Statement. Earlier in the judgment I referred to passages in its non-technical summary which said that the Vestas V90 was used as an example, and that it was not possible at that stage to specify precisely either the manufacturer or model. That makes clear that the application was not being made for a particular turbine model. Thus I reject Mr Harwood’s submissions on this interpretation point: the planning permission does not limit the proposed development to one turbine type.

V CONCLUSION

[84]For the reasons I have given I refuse the application.

Cited in 8 later judgments