Powys County Council v The Welsh Ministers & Anor [2015] EWHC 3284 (Admin)

Case No CO/2949/2015

[2015] EWHC 3284 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN WALES

Venue Cardiff Civil Justice Centre

Date 16/11/2015

Before

THE HONOURABLE MR JUSTICE LEWIS

Between

POWYS COUNTY COUNCILClaimant

THE WELSH MINISTERSFirst Defendant

RES UK & IRELAND LIMITEDSecond Defendant

Tom Cosgrove and Robert Williams (instructed by Legal Services, Powys County Council) for Claimant

Morag Ellis Q.C.(instructed by Director of Legal Services, Welsh Government) for First Defendant

Gordon Nardell Q.C. (instructed by Squire Patton Boggs (UK) for Second Defendant

Hearing Hearing dates: 22 October 2015

(Sitting at Swansea Civil Justice Centre)

JUDGMENT

Mr Justice Lewis

INTRODUCTION

[1]This is an application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) for an order quashing a decision of the First Defendant, the Welsh Ministers, contained in a letter dated 14 May 2015. By that decision, the Welsh Ministers allowed an appeal by the Second Defendant, RES (UK & Ireland) Ltd. (“the developer”) against a refusal of planning permission by Powys County Council (“the Council”) for the erection of 17 wind turbines and associated infrastructure on land at Garreg Lwyd Hill, between Felindre and Llanbadarn Fynydd, Llandrindod Wells, Powys (“the site”).

[2]Developments, such as that in the present case, which involve wind turbines with a generating capacity of 50 megawatts or less, require the grant of planning permission by the local planning authority under the provisions of the 1990 Act. If the local planning authority refuse permission, the developer may appeal to the Welsh Ministers (who form part of the Welsh Government).

[3]Onshore wind turbines with a generating capacity of more than 50 megawatts are defined as nationally significant infrastructure projects and require development consent which is granted by the Secretary of State for Energy and Climate Change, who is a member of the United Kingdom government, pursuant to the Planning Act 2008 (“the 2008 Act”).

[4]In essence, the Council contend that the Welsh Ministers should have treated certain provisions of a National Policy Statement known as EN-1 Overarching Policy Statement for Energy (“EN-1”) made by the Secretary of State pursuant to section 5 of the 2008 Act as a material consideration for the purposes of disposing of the appeal in the present case or at the very least were not precluded from doing so. The relevant provisions of EN-1 provide, amongst other things, that development consent for a nationally significant infrastructure project which causes substantial harm to scheduled archaeological monuments (“SAMs”) should only be granted in exceptional circumstances. The Welsh Ministers considered that the provisions of EN-1 were not relevant to the determination of the appeal against the refusal of planning permission for the proposed development. In addition, the Council also contends that the decision was unlawful for other reasons, including a failure to give the Council the opportunity to comment on the applicability of EN-1, a failure properly to apply the material provisions of Planning Policy Wales (“the PPW”) and a failure to give adequate reasons for granting permission without there being in place a mechanism for securing the funding of the decommissioning or restoration works on the expiry of permission for the development. THE FACTS The Application for Planning Permission

THE FACTS

[5]The developer applied to the Council for planning permission to erect 23 wind turbines on the site. Planning permission was refused by the Council on the basis that the development was contrary to the relevant statutory development plan, namely the Powys Unitary Development Plan (“the UDP”), the PPW and Technical Advice Note 8: Planning for Renewable Energy (“TAN 8”) (both issued by the Welsh Government) and EN-1. The developers appealed to the Welsh Ministers. An inspector was appointed to hold an inquiry and report to the Welsh Ministers. The Welsh Ministers directed, however that the appeal be determined by the Welsh Ministers, rather than by the inspector herself, as the proposed development was considered to be a major development which could have wide effects beyond the immediate locality. At some stage, the scheme was amended and the number of wind turbines proposed was reduced from 23 to 17. The appeal in relation to this proposed scheme is referred to in the inspector’s report and the decision letter as Appeala. A. There was an associated appeal, referred to as Appeal

b. B. This application is not concerned with Appeal B.

The Inspector’s Report

[6]The inspector held an inquiry and duly reported. In a section entitled “Planning Policy”, the inspector identified the most relevant national policy and advice as being PPW and TAN 8. She correctly identified the statutory development plan as the UDP. The primary policy in the UDP against which the appeal was to be judged was Policy E3. That policy was generally supportive of proposals for wind farms subject to certain criteria including the development not having an adverse effect either individually or cumulatively on certain specified matters such as environmental and landscape. Policy E3 required that the development should not unacceptably impact on any buildings or features of conservation and archaeological interest. This section of the report also deals with other policies in the UDP. The section referred to the draft local development plan but, as that was in the early stages of preparation and adoption, no material weight was given to that document. The section does not refer to EN-1 or any other policies of the United Kingdom government.

[7]The report records the cases for the developer, the Council and other persons or bodies. It sets out what the inspector considered were the main issues which included the effect of the development on SAMs and listed buildings. The report then analyses the issues in turn. There is a section dealing with cultural heritage. The inspector acknowledged that the proposed development would not have any direct physical effects on any heritage assets but considered that regard had to be had to the effect of the development on the setting of known heritage assets. Heritage assets include SAMs and listed buildings. The inspector considered that the degree of harm would vary and the effect on most of the heritage assets was described as being “less than substantial”. By way of example, in relation to Windy Hill Barrow, the inspector found that the development would cause only moderate harm. In three cases, Castell y Blaidd, Coventry Barrow and Ty’n y Ddol Hill Barrow, the development would cause substantial harm. At paragraph 207 of the report, the inspector summarised her view as on the cultural heritage issue in the following terms:

“207. I note the lack of objection from Cadw and the Clwyd Powys Archaeological Trust and I consider that the development would cause less than substantial harm to most of the SAMs and LBs in the immediate vicinity of the appeal site. However, I have identified substantial harm from the appeal proposal to the setting of three SAMs Castell y Blaidd, Coventry Barrow and Ty’n y Ddoll Barrow, such that the development conflicts with Policies E3, SP3, SP12 and ENV17 of the UDP, TAN 8, PPW and EN-1.”

[8]Having considered all the individual issues, the inspector then considered the planning balance and reached an overall conclusion. The material part of her report is in the following terms:

“241. The proposal would make a contribution towards the UK’s target of 15% of energy to be derived from renewable resources by 2020 and the WG’s aim of having 2GW in total capacity by 2015/2017, although it would come towards the end of that target period. The planning system has an important role in delivering the above target and aim with the latter to be achieved by, amongst others, optimising the use of the existing SSAs. Nonetheless TAN 8 recognises that not all the land within the SSAs may be environmentally suitable for major wind power proposals and the Minister’s letter of July 2011 confirms that all SSAs have a finite environmental capacity and output should not exceed the maximum levels outlined. In isolation, the development would not exceed the target for SSA C, but it may be exceeded if other wind farms under consideration are permitted in advance of a decision on this appeal. 242. A balance needs to be struck between the benefits of generating electricity from renewable onshore wind and the identified impacts of the scheme on the landscape character and visual amenity of the area, the setting of the SAMs and LBs and other matters raised in evidence. 243. Although in respect of landscape character and visual amenity I consider that the development would cause harm, in TAN 8 there is an implicit objective to accept significant change in landscape character. I consider that the degree of change to the landscape, and as a consequence visual amenity, that would be brought about by the development on its own would be consistent with the aims of TAN 8. However, in combination with other similar development the balance may be tipped over into unacceptability. I am also satisfied that, subject to conditions, the development would be satisfactory with regard to noise and ecology. 244. I have identified substantial harm from the development to the setting of the SAMs Castell v Blaidd, Coventry Barrow and Ty’n y Ddoll Barrow which would be in conflict with policies of the development plan. Moreover the identification of harm to the settings of the Cwm y Hob LBs is of considerable importance and merits weight in the balancing exercise by reason of Section 66 of the 1990 Act. 245. I have also identified a degree of harm to tourism and although I have concluded that this harm would be insufficient to justify dismissing the appeal, it carries weight against it. 246. With regard to the effect of the development on the living conditions of local residents, I have concluded that the effect of the internal access route on the residents of Fiddlers Green and Lower Fiddlers Green would be limited. The residents of these properties would also be affected by increased traffic on the local highway network although it would not be sufficient to cause harm. Issues of the private water supply to the same properties I am satisfied can be protected by condition and matters raised in relation to the effect of the development on the health of local residents are also not sufficient to justify refusal of the appeal. 247. In terms of shadow flicker only three properties would potentially be affected for less than 30 minutes per day during three months of the year and such effects can be safeguarded via a condition. Although the turbines would feature in the outlook from several properties in the area surrounding the site, I have concluded that the proposed development would not appear unpleasantly overwhelming and an unavoidable presence in main views. However, I am concerned that with the proximity of the development to the Gatehouse and the circumstances regarding the health of the occupant that the property might come to be regarded by her as an unattractive and thus unsatisfactory (but not uninhabitable) place to live. This carries weight against the appeal. 248. However, on balance I conclude that the positive benefits of renewable energy, the location of the site within SSA C and the acceptable level of change to landscape character and visual amenity outweigh the considerable weight against the appeal from the identified harm to the setting of the SAMs and the limited identified harm in the other respects identified above. The evidence persuades me that the balance is in favour of the appeal and that the proposal would therefore accord with Policy E3 as the primary policy against which the appeal needs to be judged. On this basis I conclude that the appeal should be allowed.”

[9]The inspector recommended that conditions be attached to the planning permission. These reflected the conditions agreed between the parties. They included a condition that the planning permission expire after a period of 25 years and conditions requiring the decommissioning of the site and the removal of infrastructure and restoration of the site within 12 months of the expiry of the planning permission. The conditions also included conditions providing that no development should take place until the suitable arrangements had been made to ensure that sufficient funds would be available to secure the decommissioning and restoration of the site.

[10]The inspector recommended allowing the appeal and the grant of planning permission for the proposed development subject to the conditions referred to. The report was submitted to the Welsh Ministers. Annexed to the report, amongst other things, were the written submissions of the developer and the Council.

The Decision of the Welsh Ministers

[11]The decision of the Welsh Ministers is contained in a letter dated 14 May 2015. That letter recites the procedural history and the recommendations of the inspector. At paragraph 6, it notes that:

“The starting point for the consideration of the appeals is section 38 of the Planning and Compensation (sic) Act 2004 which provides that if regard is to be had to the development plan for the purposes of any determination to be made under the Planning Acts, the determination shall be in accordance with that plan unless material considerations indicate otherwise.”

[12]The decision records the main issues as identified by the inspector and agrees that those were the relevant issues. The letter then sets the ministerial conclusions on each of the relevant issues. On the issue of landscape character, the decision states the following:

“12. The Inspector’s conclusions on this issue are at paragraphs 163 – 180 of her report. In her conclusions the Inspector has had regard to policy EN-1 – “Overarching National Policy Statement for Energy”

. Policy EN-1 is a UK Government policy which applies to applications for consent made under the Planning Act 2008 for electricity stations generating more than 50mMW of onshore energy including from wind power. Applications of this nature are not a devolved matter and, as Appeal A is for the generation of less than 50MW of onshore energy, policy EN-1 is therefore not relevant. Consequently, I cannot take policy EN-1 into account when determining Appeal A. Subject to this comment I agree with the Inspector’s conclusions.”

[13]At paragraph 13 the decision letter notes the inspector’s conclusions on visual amenity, makes a comment on that issue and says that subject “to this comment, and the comments made in paragraph 12 above about policy EN-1, I agree with the inspector’s conclusion on visual amenity”.

[14]On the issue of cultural heritage, the ministerial conclusion is expressed in the following terms:

“14. The inspector’s conclusions on this issue are at paragraphs 191- 210 of her report and I agree with them.”

[15]The decision letter then proceeds to set out the ministerial conclusions on each of the individual issues. On the question of the overall planning balance and conclusions, the decision letter sets out paragraphs 241 to 248 of the report (set out above). The decision letter then deals specifically with the issue of listed buildings. Paragraph 27 of the decision records:

“Subject to these comments, and those made in paragraphs 12 and 13 above, I agree the Inspector’s overall conclusions and accept the recommendation that planning permission be granted for the revised scheme.”

[16]In relation to the conditions the decision letter states the following:

“28. The Inspector outlines that the conditions for this appeal agreed between the parties and discussed at the Inquiry provide an appropriate basis for the set of conditions that would need to be applied if planning permission were granted for the proposed development. The Inspector has drafted a revised set of conditions for Appeal A which are contained in Annex D to the Inspector’s report. The Inspector considers those conditions would meet the tests prescribed in Welsh Government Circular 016/2014: The Use of Planning Conditions for Development Management. 29. While I agree with the Inspector that the conditions contained in Annex D provide an appropriate basis for the set of conditions that would need to imposed on any planning permission, I consider that a number of them, as drafted, do not satisfy the tests in Circular 016/2014. 30. Consequently I have redrafted a number of conditions to improve precision, deleted a number of conditions which, while desirable, are not necessary for the development to proceed and deleted a number of conditions which are not relevant to planning. 31. Two of the conditions, between them, require the setting up, and operation of, a financial agreement for the provision of monies to cover decommissioning and site restoration costs. This is not something than can be required by condition and should be the subject of a legal agreement between the developers and the local planning authority. I have considered whether it would be appropriate to issue a ‘minded to approve’ letter subject to the legal agreement being provided but, in view of the nature of the development proposed and the type of decommissioning and restoration works that would be involved, I do not believe that the lack of such a financial agreement in this case would justify planning permission being refused. 32. The inspector notes that the final choice of turbine has not been made by the appellant and although it is anticipated that the turbines would generate 2MW each, a range of 1.8 to 3.5MW has been suggested which would equate to a maximum generating capacity for the proposed wind farm of 59MW. As the Welsh Ministers do not currently have the power to grant consent for the generation of 50MW or above of onshore electricity, I am of the opinion a condition should be attached to the planning permission to ensure the amount of electricity generated can not exceed 49MW.”

[17]The Welsh Ministers therefore allowed the appeal and granted planning permission for the erection of 17 wind turbines and associated infrastructure subject to conditions. THE STATUTORY FRAMEWORK AND THE PLANNING POLICIES The Statutory Framework

THE STATUTORY FRAMEWORK AND THE PLANNING POLICIES

[18]Planning permission is required for development including, as here, development involving the erection of turbine generators generating 50MW or less of energy: see section 57 of the 1990 Act. Section 70 (2) of the 1990 Act provides that where an application for planning permission is made to a local planning authority, then:

“(2) In dealing with such an application the authority shall have regard to (a) the provisions of the development plan, so far as material to the application …. (b) any other material considerations.” (a) the provisions of the development plan, so far as material to the application …. (b) any other material considerations.”

[19]The development plan in relation to Wales is defined in section 38(4) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) as the local development plan. Further, section 38(6) of the 2004 Act provides that:

“(6) If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”

[20]If planning permission is refused, section 78 of the 1990 Act provides for an appeal. Appeals were formerly determined by the relevant Secretary of State. The function of determining appeals in relation to Wales has been transferred to the National Assembly for Wales and is now exercisable by the Welsh Ministers: see Article 2 and Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 (the Order”) and paragraph 32 of schedule 11 to the Government of Wales Act 2006 (“GOWA”). The Welsh Ministers are members of the Welsh Assembly Government (known as the Welsh Government) provided for by section 45 of GOWA.

[21]For completeness, I note that the National Assembly for Wales has acquired legislative competence to make law, that is primary legislation known as Acts of the Assembly, in respect of town and country planning (save in respect of certain matters which are excepted from the scope of the Assembly’s legislative competence: these include the granting of development consent under the 2008 Act). The National Assembly has enacted the Planning (Wales) Act 2015 but much of that legislation is not yet in force and is not of relevance to this application.

The Development Plan

[22]The statutory development plan is the UDP. The principal relevant policy in the UDP is Policy E3. Other policies in the UDP were also of relevance. The material parts of Policy E3 for present purpose are as follows:

“POLICY E3 – WIND POWER Applications for windfarms including extensions to existing sites and individual wind turbine generators will be approved where: 1. They do not unacceptably adversely affect the environmental and landscape quality of Powys, either on an individual basis or in combination with other proposed or existing similar developments. Where the cumulative impact of proposals in combination with other approved or existing windfarms would be significantly detrimental to overall environmentally quality they will be refused. ….. 4. They do not unacceptably impact upon any buildings or features of conservation or archaeological interest.”

The National Policy

[23]The principal relevant national policy in relation to the determination of appeals by the Welsh Ministers in relation to the refusal of planning permission by local planning authorities in Wales is PPW and TAN 8, both made by the Welsh Ministers. Paragraphs 1.1.1 and 1.1.4. of PPW state that:

“1.1.1. Planning Policy Wales (PPW) sets out the land use planning policies of the Welsh Government. It is supplemented by a series of Technical Advice Notes (TANs, listed in the Annex). Procedural advice is given in circulars and policy clarification letters. It translates our commitment to sustainable development into the planning system so that it can play an appropriate role in moving towards sustainability (see Chapter 4).”

And “1.1.4 PPW, the TANS, circulars and policy clarification letters comprise national planning policy. National planning policy and the Wales Spatial Plan should be taken into account in the preparation of development plans. They may be material to decisions on individual planning applications and will be taken into account by the Welsh Ministers and Planning inspectors in the determination of called-in planning applications and appeals.”

And

[24]The material provision of PPW is paragraph 6.5.1 which provides that:

“The desirability of preserving an ancient monument and its setting is a material consideration in determining a planning application, whether that monument is scheduled or unscheduled. Where nationally important archaeological remains, whether scheduled or not, and their settings are likely to be affected by proposed development, there should be a presumption in favour of their physical preservation in situ. In cases involving lesser archaeological remains, local planning authorities will need to weigh the relative importance of archaeology against other factors, including the need for the proposed development.”

[25]Further guidance is given in Circular 60/96 on Planning and the Historic Environment: Archaeology and paragraph 17 in particular which provides that:

“Where nationally important archaeological remains, whether scheduled or not, and their settings, are affected by proposed development there should be a presumption against proposals which would involve significant alterations or cause damage, or which would have a significant impact on the setting of visible remains.”

[26]For completeness, I also note paragraph 3.1.2 of PPW which provides:

“In line with the presumption in favour of sustainable development (see 4.2) applications for planning permission, or for the renewal of planning permission, should be determined in accordance with the approved or adopted development plan for the area, unless material considerations indicate otherwise. Material considerations could include current circumstances, policies in an emerging development plan, and planning policies of the Welsh Government and the UK Government. All applications should be considered in relation to up to date policies.”

The Legislation and Policy Relating to Development Consents

[27]Section 31 of the 2008 Act provides that a development consent is required for development to the extent that it is or forms part of a nationally significant infrastructure project. Such projects are defined in Part 3 of the 2008 Act and include the construction or extension of an onshore generating station in England or Wales with a capacity of more than 50 megawatts: see sections 14 and 15 of the 2008 Act. The Secretary of State has the function of deciding an application for an order granting development consent: see section 103 of the 2008 Act. The Secretary of State is a member of the United Kingdom Government.

[28]Section 5 of the 2008 Act deals with national policy statements and provides, so far as material:

“5 National policy statements (1) The Secretary of State may designate a statement as a national policy statement for the purposes of this Act if the statement— (a) is issued by the Secretary of State, and (b) sets out national policy in relation to one or more specified descriptions of development. (2) In this Act “national policy statement” means a statement designated under subsection (1) as a national policy statement for the purposes of this Act. (3) Before designating a statement as a national policy statement for the purposes of this Act the Secretary of State must carry out an appraisal of the sustainability of the policy set out in the statement. (4) A statement may be designated as a national policy statement for the purposes of this Act only if the consultation and publicity requirements set out in section 7, and the parliamentary requirements set out in section 9 , have been complied with in relation to it….. (5) The policy set out in a national policy statement may in particular— (a) set out, in relation to a specified description of development, the amount, type or size of development of that description which is appropriate nationally or for a specified area; (b) set out criteria to be applied in deciding whether a location is suitable (or potentially suitable) for a specified description of development; (c) set out the relative weight to be given to specified criteria; (d) identify one or more locations as suitable (or potentially suitable) or unsuitable for a specified description of development; (e) identify one or more statutory undertakers as appropriate persons to carry out a specified description of development; (f) set out circumstances in which it is appropriate for a specified type of action to be taken to mitigate the impact specified description of a development.” (1) The Secretary of State may designate a statement as a national policy statement for the purposes of this Act if the statement— (a) is issued by the Secretary of State, and (b) sets out national policy in relation to one or more specified descriptions of development. (2) In this Act “national policy statement” means a statement designated under subsection (1) as a national policy statement for the purposes of this Act. (3) Before designating a statement as a national policy statement for the purposes of this Act the Secretary of State must carry out an appraisal of the sustainability of the policy set out in the statement. (4) A statement may be designated as a national policy statement for the purposes of this Act only if the consultation and publicity requirements set out in section 7, and the parliamentary requirements set out in section 9 , have been complied with in relation to it….. (a) set out, in relation to a specified description of development, the amount, type or size of development of that description which is appropriate nationally or for a specified area; (b) set out criteria to be applied in deciding whether a location is suitable (or potentially suitable) for a specified description of development; (c) set out the relative weight to be given to specified criteria; (d) identify one or more locations as suitable (or potentially suitable) or unsuitable for a specified description of development; (e) identify one or more statutory undertakers as appropriate persons to carry out a specified description of development; (f) set out circumstances in which it is appropriate for a specified type of action to be taken to mitigate the impact specified description of a development.”

[29]Section 103 of the 2008 Act provides that the Secretary of State has the function of deciding an application for an order granting development. Section 104 of the 2008 Act provides that the Secretary of State must have regard to a relevant national policy statement when considering such application and, furthermore, they must be determined in accordance with a relevant national policy statement unless one of a number of the prescribed exceptions applies. The material provisions of section 104 of the 2008 Act provide that: “104 Decisions in cases where national policy statement has effect 1(1) This section applies in relation to an application for an order granting development consent if a national policy statement has effect in relation to development of the description to which the application relates. (2) In deciding the application the Secretary of State must have regard to— (a) any national policy statement which has effect in relation to development of the description to which the application relates (a “relevant national policy statement”) ….. (3) The Secretary of State must decide the application in accordance with any relevant national policy statement, except to the extent that one or more of subsections (4) to (8) applies …..” (a) any national policy statement which has effect in relation to development of the description to which the application relates (a “relevant national policy statement”)

The National Policy Statement

[30]The Secretary of State has designated a national policy statement for energy infrastructure, that is EN-1. Under the heading background, section 1.1.1 of EN-1 provides (with the reference to the Secretary of State inserted to replace references to the former decision maker, the Infrastructure Planning Commission):

“1.1.1 . This National Policy Statement (NPS) sets out national policy for the energy infrastructure defined in Section 1.3 below. It has effect, in combination with the relevant technology-specific NPS (see paragraph 1.4.1), on the decisions by the [Secretary of State] on applications for energy developments that fall within the scope of the NPSs. For such applications this NPS, when combined with the relevant technology-specific energy NPS, provides the primary basis for decisions by the [Secretary of State]. Under the Planning Act 2008 the [Secretary of State] must also have regard to any local impact report submitted by a relevant local authority, any relevant matters prescribed in regulations, the Marine Policy Statement (MPS) and any applicable Marine Plan, and any other matters which the [Secretary of State] thinks are both important and relevant to its decision. ”

[31]Under a heading “Role of this NPS in the planning system”, paragraph 1.2.1 of EN-1 provides:

“1.2.1. This NPS, and in particular the policy and guidance on generic impacts in Part 5, may be helpful to local planning authorities (LPAs) in preparing their local impact reports. In England and Wales this NPS is likely to be a material consideration in decision making on applications that fall under the Town and Country Planning Act 1990 (as amended). Whether, and to what extent, this NPS is a material consideration will be judged on a case by case basis.”

[32]Part 4 of EN-1 deals with general assessment principles. Para.4.1.1 provides that:

“The statutory framework for deciding applications for development consent under the Planning Act is summarised in Section 1.1 of this NPS. This Part of the NPS sets out certain general policies in accordance with which applications relating to energy infrastructure are to be decided that do not relate only to the need for new energy infrastructure (covered in Part 3) or to particular physical impacts of its construction or operation (covered in Part 5 and the technology-specific NPSs).”

[33]Part 5 of EN-1 then deals with the assessment of what are described as generic impacts. These include, for example, assessment of the impact of the proposed development on air quality and emissions. The material section is 5.8 of EN-1 which deals with the assessment of the proposed development on the historic environment. Paragraph 5.8.1 of EN-1 recognises that “the construction, operation and decommissioning of energy infrastructure has the potential to result in adverse impacts on the historic environment”. Paragraphs 5.8.14 and 5.8.15 describe how the Secretary of State should assess those impacts. The provisions provide that:

“5.8.14 There should be a presumption in favour of the conservation of designated heritage assets and the more significant the designated heritage asset, the greater the presumption in favour of its conservation should be. Once lost heritage assets cannot be replaced and their loss has a cultural, environmental, economic and social impact. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. Loss affecting any designated heritage asset should require clear and convincing justification. Substantial harm to or loss of a grade II listed building park or garden should be exceptional. Substantial harm to or loss of designated assets of the highest significance, including Scheduled Monuments; registered battlefields; grade I and II* listed buildings; grade I and II* registered parks and gardens; and World Heritage Sites, should be wholly exceptional. 5.8.15 Any harmful impact on the significance of a designated heritage asset should be weighed against the public benefit of development, recognising that the greater the harm to the significance of the heritage asset the greater the justification will be needed for any loss. Where the application will lead to substantial harm to or total loss of significance of a designated heritage asset the [Secretary of State] should refuse consent unless it can be demonstrated that the substantial harm to or loss of significance is necessary in order to deliver substantial public benefits that outweigh that loss or harm.”

THE ISSUES

[34]Against that background, the claim form put forward four grounds of challenge. In the light of the grounds in the claim form, the written submissions and oral argument, the issues as they emerged may be stated as follows:(1) did the Welsh Ministers err in deciding that the policy set out in paragraphs 5.8.14 and 5.8.15 of EN-1 were not relevant to the determination of the appeal against the refusal of planning permission?

(2) was there any procedural unfairness in the way in which the Welsh Ministers dealt with the question of the applicability of paragraphs 5.8.14 and 5.8.15 of EN-1 to the appeal?

(3) did the Welsh Ministers give adequate reasons for their conclusions on, and correctly apply, the relevant provisions of the PPW?

(4) did the Welsh Ministers give adequate reasons for their approach to the decommissioning arrangements?

THE FIRST ISSUE –THE RELEVANCE OF PARAGRAPHS 5.8.14 AND 5.8.15 OF EN-1

[35]The Claimant accepts that the criteria contained in paragraphs 5.8.14 and 5.8.15 of EN-1 do not apply directly to decision-makers determining applications for planning permission or appeals under the 1990 Act. The Claimant also accepts that those provisions of EN-1 are not a material consideration which the Welsh Ministers are bound, as a matter of law, to take into account when deciding appeals under the 1990 Act. However, the Claimant contends that those provisions of EN-1 are capable of being a material consideration and the Welsh Ministers erred in considering that they were precluded from having regard to them. The Claimant accepts that the Welsh Ministers could have chosen to give little or no weight to the provisions of paragraph 5.8.14 and 5.8.15 of EN-1 on the basis that the provisions of PPW (which are material considerations) set out the appropriate test for assessing the impact of developments on SAMs.

Analysis

[36]Section 38(6) of the 2004 Act provides that applications for planning permission are to be determined in accordance with the development plan unless material considerations indicate otherwise. In the present case, the development plan is the UDP and Policy E3 in particular, although other policies in the UDP are also relevant.

[37]The principles governing what constitute material considerations are well established in the case law. First, material in this context means relevant to the planning issues under consideration. It is for the courts to determine whether or not a consideration is relevant. It is for the decision-maker to determine what weight, if any, to give to that consideration. As Lord Keith of Kinkel expressed the matter at page 764G-H in Tesco Stores v Secretary of State for the Environment [1996] 1 W.L.R. 759:

“Sir Thomas Bingham M.R. in the course of his judgment in this case said that “material” in subsection (2) meant “relevant,” and in my opinion he was correct in this. It is for the courts, if the matter is brought before them, to decide what is a relevant consideration. If the decision maker wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, his decision cannot stand and he must be required to think again. But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223).”

[38]Secondly, in general terms, a material consideration is a consideration which bears on the use or development of land. It is a wide concept capable of embracing a number of matters relevant to the use or development of the land subject to the application for planning permission. The matter is usefully expressed in the following way by Lindblom J., as he then was, in Cala Homes (South) Ltd. v Secretary of State for Communities and Local Government and Winchester City Council [2011] 1 P & C.R. 22 (an appeal against the decision of Lindblom J. was dismissed by the Court of Appeal: see

[2011] EWCA Civ 639

“31. What is capable of being a material consideration for the purposes of a planning decision? This question has on several occasions been considered by the courts. The concept of materiality is wide. In principle, it encompasses any consideration bearing on the use or development of land. Whether a particular consideration is material in a particular case will depend on the circumstances (see the judgment of Cooke J. in Stringer v Minister of Housing and Local Government [1970] 1 W.L.R. 1281; (1971) 22 P. & C.R. 255 (at p.1294G)). In the context of development plan-making and development control decision-taking, the test of materiality formulated by Lord Scarman in his speech in Westminster City Council v Great Portland Estates Plc [1985] A.C. 661; (1985) 50 P. & C.R. 20 (at p.669H to p.670C–E) is whether the consideration in question “serves a planning purpose”, which is one that “relates to the character and use of land.”

[39]Thirdly, and critically in the present case, is the extent to which planning policy can constitute a material consideration. That, too, was considered by Lindblom J. in the Cala Homes case where he identified the following principles:

“50 The power of a minister to issue a statement articulating or confirming a policy commitment on the part of the government does not derive from statute. As was noted by Cooke J. in Stringer (at p.1295), s.1 of the Town and Country Planning Act 1943 imposed on the minister a general duty to secure consistency and continuity in the framing and execution of a national policy for the use and development of land. Although that duty was repealed by the Secretary of State in the Environment Order 1970, Mr Mould submitted, and I accept, that it still accurately describes the political responsibility of the Secretary of State for planning policy. The courts have traditionally upheld the materiality of such policy as a planning consideration. In his speech in Tesco Stores Ltd. (at p.777F) Lord Hoffmann acknowledged that the range of policy the Secretary of State may promulgate is broad. The example cited by Lord Hoffmann was “a policy that planning permissions should be granted only for good reason”

. In Kirkman Carnwath J. said (at pp. 566 and 567):

“… A distinction must be drawn between (1) formal policy statements which are made expressly, or are by necessary implication, material to the resolution of the relevant questions, (2) other informal or draft policies which may contain relevant guidance, but have no special statutory or quasi-statutory status. Even though the planning Acts impose no specific requirement on local planning authorities to take account of Government policy guidance, it is well established that it should be treated, so far as relevant, as a material consideration (see Gransden v Secretary of State ex parte Richmond [1996] 1 W.L.R. 1460, 1472). Given the Secretary of State’s general regulatory and appellate jurisdiction under the Acts, his policies, and those of the Government of which he forms part, can no doubt be regarded as “obviously material” within the Findlay tests. The same can be said of his policies in respect of the Environment Protection legislation …”

In Findlay, Re [1985 A.C. 318 , to which Carnwath J. referred there, Lord Scarman approved (at p.333) as a “correct statement of principle” the following observations made by Cooke J. in CREEDNZ Inc v Governor General [1981] 1 N.Z.L.R. 172 (at p.183):

“… What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken unto account, or even that it is one which many people, including the Court itself, would have taken into account if they had to make a decision.” and, “… There will be some matters so obviously material to a decision on a particular project that anything short of direct consideration by the ministers … would not be in accordance with the intention of the Act.” “… A distinction must be drawn between (1) formal policy statements which are made expressly, or are by necessary implication, material to the resolution of the relevant questions, (2) other informal or draft policies which may contain relevant guidance, but have no special statutory or quasi-statutory status. Even though the planning Acts impose no specific requirement on local planning authorities to take account of Government policy guidance, it is well established that it should be treated, so far as relevant, as a material consideration (see Gransden v Secretary of State ex parte Richmond [1996] 1 W.L.R. 1460, 1472). Given the Secretary of State’s general regulatory and appellate jurisdiction under the Acts, his policies, and those of the Government of which he forms part, can no doubt be regarded as “obviously material” within the Findlay tests. The same can be said of his policies in respect of the Environment Protection legislation …” “… What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken unto account, or even that it is one which many people, including the Court itself, would have taken into account if they had to make a decision.” “… There will be some matters so obviously material to a decision on a particular project that anything short of direct consideration by the ministers … would not be in accordance with the intention of the Act.”

[40]The Court of Appeal has also given guidance on the approach to determine what is material in R (Watson) v London Borough of Richmond-upon-Thames

[2013] EWCA Civ. 513

. Richards L.J., with whom Pitchford and Maurice Kay L.JJ. agreed said the following. “26. A helpful means of determining what is material or relevant is to be found in the judgment of Glidewell LJ in Bolton Metropolitan Bo Council v Secretary of State for the Environment

(1990) 61 P&CR 343

, albeit the statutory context was different (the confirmation of a compulsory purchase order). At pages 352–353 he set out the following principles: “1. The expressions used in the authorities that the decision maker has failed to take into account a matter which is relevant … or that he has failed to take into consideration matters which he ought to take into account … have the same meaning. 2. The decision-maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb ‘might’, I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account. … 4. … [T]here is clearly a distinction between matters which a decision maker is obliged by statute to take into account and those where the obligation to take into account is to be implied from the nature of the decision and of the matter in question …. 5. If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category, it is for the judge to decide whether it was a matter which the decision maker should have taken into account. 6. If the judge concludes that the matter was ‘fundamental to the decision’, or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid. 7. … Even if the judge has concluded that he could hold that the decision is invalid, in exceptional circumstances he is entitled nevertheless, in the exercise of his discretion, not to grant any relief.” 27. R (Kides) v South Cambridgeshire District Council

[2002] EWCA Civ 1370

was a decision of this court on section 70(2) of the Town and Country Planning Act 1990 and therefore directly in point. Jonathan Parker LJ, with whom the other members of the court agreed, explained “material considerations” as follows at [121]: “In my judgment a consideration is ‘material’, in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues. 28 Mr Douglas Edwards QC, for the appellant, invited us to apply the test in Kides and sought to distinguish the statement of principles in Bolton. I see no real difference between the formulations in the two cases, if one focuses as one should on the second of the categories referred to in Bolton (on the basis that section 70(2), although requiring other material considerations to be taken into account, leaves at large what other considerations may be material). Any distinction between “a real possibility that he would reach a different conclusion if he did take that consideration into account” and “a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other” is too fine to matter for present purposes.” “1. The expressions used in the authorities that the decision maker has failed to take into account a matter which is relevant … or that he has failed to take into consideration matters which he ought to take into account … have the same meaning. “In my judgment a consideration is ‘material’, in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues.

The Relevant National Policy in the Present Case

[41]The relevant applicable national policies, in the present case, are the provisions of the PPW and TAN 8. Those set out the policies of the Welsh Ministers in relation to the development of windfarms and the assessment of the impact of such developments on, amongst other things, heritage. As the inspector noted, those policies stated that the Welsh Government’s aim was to secure an appropriate mix of energy provision for Wales and where possible minimise environmental, social and economic impacts. TAN 8 identified seven Strategic Search Areas considered suitable for large scale wind farms. Paragraph 6.5.1 of PPW sets out the policy of the Welsh Ministers on ancient monuments and archaeological remains, namely that there should be a presumption in favour of their physical preservation in situ. That is further elaborated in paragraph 17 of Circular 60/96 which provides for a presumption against development which, amongst other things, would have a significant impact on the setting of archaeological remains.

[42]The reason why such a policy is capable of being a material consideration is identified in the judgment of Lindblom J. in the decision in Cala Homes at first instance. Relevant ministers have functions relating to the land use system. They exercise the function of determining appeals against the refusal of planning permission under the 1990 Act. The relevant minister in England is the appropriate Secretary of State who is a member of the United Kingdom government. The relevant ministers in relation to Wales are the Welsh Ministers who are members of the Welsh Government. The relevant functions under the 1990 Act, including the determination of appeals against the refusal of planning permission under the 1990 Act, have been transferred to the Welsh Ministers and are exercisable by them. The Welsh Ministers have statutory power, either implicitly under the 1990 Act or by reason of section 71 of GOWA, to issue planning policies related to the discharge of their land use functions including the determination of appeals under the 1990 Act in relation to Wales, just as the Secretary of State does in England. The issuing of statements articulating or confirming land use policy performs a valuable role in ensuring consistency, continuity and transparency in the framing of national policy for the use and development of land.

The Decision in the Present Case

[43]Against that background, the Welsh Ministers considered, correctly, that the starting point for the consideration of the appeals was the development plan as determinations had to be in accordance with that plan unless material considerations indicated otherwise by reason of section 38(6) of the 2004 Act: see paragraph 6 of the decision letter. Secondly, the relevant national policy may amount to a material consideration justifying departure from the development plan. The relevant national policy containing the criteria relating to the assessment of the impact of the development on the setting of archaeological remains, for decisions such as the present was the policy established by the Welsh Ministers (that is PPW and the guidance in Circular 60/96). Thirdly, as the Welsh Ministers recognised, the criteria set out in paragraph 5.8.14 and 5.8.15 of EN-1 were provisions of UK government policy applicable to applications for development consent for nationally significant infrastructure projects, here, generating stations with a generating capacity of more than 50 megawatts of onshore energy from wind power. As the appeal here related to an application for planning permission for a generating station with a capacity of less than 50 megawatts which was a matter for determination by Welsh Ministers (not an application for a development consent by the Secretary of State), the provisions of EN-1 relied upon were not relevant. For that reason, the Welsh Ministers did not take those policy provisions into account: see paragraphs 12, 13 and 27 of the decision letter.

[44]The proper analysis of the relevance of the provisions contained in paragraph 5.8.14 and 5.8.15 in the present case therefore is, in my judgment, as follows. Those provisions of EN-1 do not apply directly to the determination of the appeal in the present case, that is, they do not set out the criteria for determining how to assess and weigh the impact of the proposed development on SAMs. Those provisions are not considerations that the Welsh Ministers are required, either expressly or impliedly, to take into account when considering the appeal. The Claimant accepts this. The reasons for those conclusions are as follows.

[45]First, the subject matter of the appeal is, as the decision letter recognises, different from the subject matter of decisions to which the material provisions of EN-1 apply. The former is concerned with the generating stations with a capacity of 50 megawatts or less. The latter is concerned with nationally significant infrastructure projects including generating stations with a capacity of more than 50 megawatts. Secondly, the statutory context is different. The 2008 Act deals with the making of orders granting development consent for nationally significant infrastructure projects: see section 31 of the 2008 Act. The provisions of National Policy Statements such as EN-1 are adopted within the context of the 2008 Act and for the purposes of that Act: see section 5 (1) of the 2008 Act. Paragraphs 5.8.14 and 5.8.15 of EN-1 are provisions setting out “the relative weight to be given to specified criteria”, in this case the impact on heritage, when considering applications for development consent. The provisions of relevant National Policy Statements must be taken into account by the Secretary of State when considering applications for development consent under the 2008 Act and, indeed, such applications must be determined in accordance with a relevant National Policy Statement: see section 104 of the 2008 Act. Further, the responsibility for development consents rests with the Secretary of State whereas responsibility for determining an appeal against a refusal of planning permission rests with the Welsh Ministers. As such, the provisions of paragraphs 5.8.14 and 5.8.15 are not directly applicable to, nor are they matters that the Welsh Ministers must expressly or impliedly take account of, when determining appeals under the Act. Rather those deal with a different subject matter, assessed by a different minister, in a different statutory context.

[46]The Claimant contends, however, that the provisions of EN-1 are capable of being a material consideration and to treat them as such, would not involve undermining the difference between the regimes for the grant of development consent under the 2008 Act and the grant of planning permission under the1990 Act. Nor, the Claimant submits, would that undermine the devolution settlement. The Claimant accepts that the Welsh Ministers could treat the provisions of EN-1 as potentially relevant but of no weight as they were different from the provisions of Welsh Government policy on the assessment of the impact of a windfarm development on SAMs. However, the Claimant submits that that would require a conscious decision on the part of the Welsh Ministers to attribute no weight to the provisions of EN-1. The error here, submits the Claimant, was that the Welsh Ministers considered that they were precluded from taking account of the provisions of EN-1 and so did not consider a potentially relevant consideration.

[47]In my judgment, the contention that the Welsh Ministers acted unlawfully in their consideration of EN-1 in the present case is flawed for each of a number of different reasons. First, the Welsh Ministers were correct in their analysis that the provisions of EN-1 were not relevant to the decision that they had to take, namely, whether to allow the appeal and grant planning permission for the development. For the reasons given above (and accepted by the Claimant) the provisions of EN-1 were not applicable to, and were not something that had to be expressly or impliedly taken into account by the Welsh Ministers in the decision that they were taking. The Welsh Ministers were deciding whether to allow an appeal and grant planning permission for a particular development under the 1990 Act. Paragraphs 5.8.14 and 5.8.15 contained criteria to be used by the Secretary of State for deciding whether to grant development consent under the 2008 Act for a different category of development, namely national infrastructure projects.

[48]Secondly, and separately, the submissions of the Claimant, in reality, seek to have the Welsh Ministers apply a different set of policy criteria for the assessment of the impact of the development on SAMs (those in EN-1) from those contained in the policy (PPW, and elaborated in Circular 60/96) which is actually applicable to the decision in question. The reality is that the Welsh Ministers have adopted a policy, PPW, which deals with the assessment of the impact of proposed developments on cultural heritage. What the Claimant wishes the Welsh Ministers to do is apply a different policy. The Welsh Ministers consider that the relevant policy is that contained in the policies adopted by the Welsh Ministers. They do not consider that the provisions of a different policy, adopted for a different purpose, are relevant. This is not, in truth, a case where the Welsh Ministers have ignored a material consideration. The provisions of policy EN-1 are not, in the language used in Kides “relevant to the question of whether the application should be granted or refused”. Nor is it, in truth, appropriate to regard the Welsh Ministers as treating themselves as “precluded” from applying a potentially relevant policy provision. The reality is that the Welsh Ministers do not consider that the relevant provisions are those in EN-1 as they deal with generators with a capacity of more than 50 megawatts whereas they are dealing with a different type of development, that is, a windfarm with a capacity of 50 megawatts or less. In my judgment, it is not apt to treat a decision not to apply a different, non-applicable policy to the development as a failure to have regard to a potentially relevant consideration.

[49]Thirdly, and separately, the reasons advanced by the Claimant as to why the provisions of EN-1 are relevant reinforce the conclusion that they are not provisions which are relevant to the question before the Welsh Ministers which was whether to allow the appeal and grant planning permission for the development under the 1990 Act. The considerations relied upon by the Claimant are set out in paragraph 51 of the written reply of the Claimant dated 15 October 2015 (as confirmed in their written reply dated 26 October 2015 to the Defendants’ oral submissions). I deal with each point in turn.

[50]The subject matter of the tests and policy concepts in EN-1 are said to be directly related to the subject matter (energy development) and land use issues (large windfarms in Wales and the impact on landscape and cultural heritage). Further, it is said, that the Welsh Ministers directed that the decision be taken by the Welsh Ministers themselves rather than have it determined by the inspector because it was a major development which could have effects beyond the locality. At a broad level, both the policy provisions in EN-1 and the Welsh policy deal with energy development and land use. That broad description, however, overlooks the differences between the statutory context. The provisions in EN-1 are intended to set out criteria to be applied by the Secretary of State in considering applications for nationally significant infrastructure projects. The Welsh Ministers are considering an application for planning permission for a development which is not a nationally significant infrastructure project and where different policy provisions apply. The policy provisions of EN-1 are not, and are not intended to be, relevant to the question whether the application for planning permission for this development should be granted. Furthermore, the fact that the Welsh Ministers considered that the development could have effects beyond the locality, and so should be determined by the Welsh Ministers, does not have the consequence that the development was one where the policy provisions of EN-1 on nationally significant infrastructure projects became relevant. Rather, it reflects a judgment as to which person, the inspector or the Welsh Ministers, should take the decision. It was not an indicator that the policy provisions of the EN-1 were suitable for application to this appeal.

[51]Next the Claimant points out that the application was for an onshore windfarm which was right on the boundary between being determined by the Secretary of State under the 2008 Act as it involved a windfarm with a generating capacity of 49 megawatts and would have constituted a nationally significant infrastructure project if it had a generating capacity of more than 50 megawatts. The fact is that the statutory regimes draw a distinction between different categories of development and, in the case of generating stations including windfarms, that involves consideration of generating capacity. This development fell into the category of a development requiring planning permission under the 1990 Act, not a nationally significant infrastructure project to be determined by the system put in place by the 2008 Act.

[52]Next, it is said that the parties and the inspector both considered EN-1 to be a material consideration. The ultimate decision on whether or not the particular consideration relied upon (here the criteria in paragraphs 5.8.14 and 5.8.15 of EN-1) amount to a material consideration is a matter of law for the courts. It is for the courts to determine whether the Welsh Ministers erred in their approach to the provisions of EN-1 in this case.

[53]Then the Claimant relies upon the fact that EN-1 itself said in paragraph 1.2.2 that the National Policy Statement comprising EN-1 is “likely to be a material consideration in decision-making on applications that fall under” the 1990 Act and whether, and to what extent EN-1 was a material consideration would be judged on a case by case basis. As a general principle, the fact that one person, exercising particular functions, expresses the view that a policy made by that person is likely to be a material consideration to be taken into account by a different body of persons exercising different functions is not determinative of the question of whether the policy is relevant. That is particularly the case where the policy statement itself recognises that that question will be have to be decided on a case by case basis. In the present case, the provisions governing the assessment of the impact of a nationally significant infrastructure project are not relevant to the assessment of the impact of a different category of development to which different, specific policy provisions apply.

[54]Similarly, the fact that paragraph 3.1.2 of PPW indicates that there may be circumstances when UK policy may be relevant in considering an application for planning permission does not assist in resolving the specific question in this case, namely the relevance of a particular set of provisions, adopted in a specific statutory context, dealing with a different set of developments to an application for planning permission under the 1990 Act. Furthermore, in my judgment, the fact that the Welsh Ministers in the letter of July 2011 encouraged those dealing with development consents to recognise the policy outlined in TAN 8 and to respect the fact that the Strategic Search Areas in Wales had a finite capacity does not assist in considering the relevance of paragraphs 5.8.14 and 5.8.15 of EN-1 to the application for the development that the Welsh Ministers were considering.

[55]Finally, the Claimant relies upon the language used in Kides and suggests that if the Welsh Ministers had taken account of the provisions of EN-1 that would have tipped the balance to some extent one way or the other. As is clear from the quotation from Kides set out above, the question is whether the provisions of EN-1 relied upon are relevant to the question of whether the application for planning permission under the 1990 Act should be granted. For the reasons given, the answer to that question is no.

[56]For those reasons, the Welsh Ministers did not err in deciding that the provisions of EN-1, and paragraphs 5.8.14 and 5.8.15 in particular of that document, were not relevant to the exercise that they were carrying out, namely whether to allow the appeal and grant planning permission for the development under the 1990 Act.

[57]For completeness, I note that the question of whether the inspector correctly understood and applied the provisions of paragraphs 5.8.14 and 5.8.15 does not arise for determination in the light of the conclusions reached above. The relevant decision-maker was the Welsh Ministers who, correctly, concluded that those provisions of EN-1 were not relevant to the decision they were taking. I also note the submission of the Claimant in paragraph 24 of its skeleton argument for the hearing that the Welsh Ministers stated in paragraphs 12 and13 of the decision letter that they had not taken into account EN-1 in relation to matters of landscape and visual character but did not make an express reservation when dealing with matters of cultural heritage. The Claimant invited the court to infer that the Welsh Ministers had intended to apply paragraphs 5.8.14 and 5.8.15 of EN-1 when assessing matters relating to cultural heritage. In my judgment, it is clear from the decision letter read as a whole, and from paragraph 27 in particular, that the Welsh Ministers did not consider that the provisions of EN-1 were relevant to the assessment of the impact of the proposed development on matters of cultural heritage. I also note that the Second Defendant, the developer, advanced a different set of reasons as to why the decision of the Welsh Ministers was lawful. As I consider that the decision was lawful for the reasons given above, it is not necessary to address that alternative analysis of the decision-making process.

THE SECOND ISSUE – PROCEDURAL FAIRNESS

[58]The Claimant contends that it was a breach of the common law principles of procedural fairness for the Welsh Ministers to decide that the provisions of EN-1 were not relevant to the determination that they were making without first indicating that fact to the parties to the inquiry and allowing them to comment. The Claimant contends that that was particularly the case here as the Claimant and the developer were agreed that the provisions of EN-1 were relevant. The Claimant relied upon the principles set out in paragraph 62 of the decision of the Court of Appeal in Hopkins Developments Ltd. v Secretary of State for Communities and Local Government

[2014] EWCA Civ 470

. The Claimant also relied upon a series of cases emphasising the importance of the statement of common ground in inquiries including Halite Energy Group Ltd v Secretary of State for Communities and Local Government

[2015] EWHC 1895

. The Claimant also relied upon the decision in Sayce v TNT (UK) Ltd. [2012] 1 W.L.R. 1261 where the Court of Appeal held that it was procedural unfair for a judge to determine a case on a point not argued by the parties without first inviting submissions from the parties. The Claimant was relying solely on the common law principles of procedural fairness and did not suggest that there had been any breach of the relevant rules governing the conduct of the inquiry.

[59]The central question, in my judgment, is whether there was any procedural unfairness and if so, whether any unfairness substantially prejudiced the Claimant within the meaning of section 288(5) of the 1990 Act. In my judgment, there was no procedural unfairness but, in any event, the Claimant has not been materially prejudiced. I reach that conclusion for the following reasons.

[60]First, the Claimant set out its arguments in writing to the inspector about the relevant planning policy. It submitted that the development plan provided the starting point for consideration of the appeal and indicated that beyond that the most important energy and planning policy for the appeal was provided by policy at a Welsh level (that is, PPW and TAN 8). The Claimant further submitted that the provisions of EN-1 were material considerations. See paragraphs 5 and 10 of the Claimant’s written case to the inspector. The written case of the Claimant (and other parties) were annexed to the inspector’s report and provided to the Welsh Ministers. The Claimant’s position, therefore, was set out and the Welsh Ministers were aware of it when reaching a decision. In substance, the Welsh Ministers were reaching a decision on whether or not the provisions of EN-1 were relevant, as the Claimant contended, or were not. This was not a case where there was a new issue of fact or evidence upon which the Claimant was not given the opportunity to comment. Nor was it in truth analogous to a case where a court determined a point of law in civil proceedings not argued by the parties and without giving them the opportunity to make submissions. The reality is that the question of the policies to be applied to the determination of the appeal was addressed. All parties, it seemed, agreed that the starting point was the development plan. All parties agreed that the relevant national policy was PPW and TAN 8, the provisions of which constituted material considerations which might justify a departure from the development plan. The Claimant (and, possibly, the developer in relation to some parts of EN-1) considered that the provisions of EN-1 were also relevant. The Welsh Ministers disagreed on the relevance of the provisions of EN-1 for the reasons they gave in their decision letter. Those circumstances do not give rise to any procedural unfairness.

[61]Secondly, the Claimant has not been able to establish any material prejudice in the present case. The ultimate question is whether the Welsh Ministers were correct to conclude that the provisions of EN-1 were not relevant to the decision that they were taking. That matter has to be determined by the court. If, as a matter of law, the Welsh Ministers are correct in their analysis of the relevance or otherwise of EN-1, the absence of any opportunity to make submissions on the issue to the Welsh Ministers would not affect matters. Furthermore, the Claimants have not identified what other material or arguments they would have put to the Welsh Ministers which might have caused them to take a different view. In oral submissions, the only additional point that counsel for the Claimant indicated the Claimant would have wished to draw to the attention of the Welsh Ministers was paragraph 3.1.2 of PPW set out above which indicates that in some instances material considerations might include the planning policies of the UK Government. For the reasons given above, that general reference does not assist in determining whether the provisions of EN-1, and paragraphs 5.8.14 and 5.8.15 of EN-1 in particular, are relevant to the decision in question. Moreover, the Welsh Ministers are familiar with the terms of PPW. The inspector identified the PPW and TAN 8 as the most relevant documents so far as national policy was concerned in paragraph 20 of her report. It is fanciful to suggest that the Claimant was materially prejudiced by the absence of a specific opportunity to refer to paragraph 3.1.2 of PPW before the Welsh Ministers took the decision.

THE THIRD ISSUE – THE PROPER APPLICATION OF THE PPW AND CIRCULAR 60/96

[62]The Claimant contends that the inspector failed to address, or to address properly, the question of the tests governing the assessment of the impact of proposed development on cultural heritage and, in particular, failed to address properly the presumption against granting permission for developments which would cause significant harm to the setting of archaeological monuments set out in PPW and elaborated in Circular 60/96. In essence, the Claimant contends that while the inspector considered that there would be substantial harm to three SAMs, she failed to address the question of whether the harm to other SAMs might still be significant (albeit less than substantial). As the Welsh Ministers adopted the reasoning of the inspector on this issue, it is submitted that they too erred.

[63]The inspector considered the impact of the proposed development on each of the relevant heritage assets in paragraphs 191 to 201 of her report. As indicated, in three cases, she considered that the harm to the setting of those archaeological monuments would be substantial. The inspector identified the harm, if any, to other SAMs. By way of example, the inspector found that the harm to Windy Hill Barrow would be moderate (but not substantial).

[64]At paragraphs 241 to 248 of her report, the inspector considered the planning balance. At paragraph 242, she recognised that a balance needed to be struck between the benefits of generating energy from renewable sources and the “identified impacts of the scheme” on, amongst other things, “the setting of the SAMs.” The impact on all the SAMs had been addressed, and identified in the earlier section of the report. The inspector noted that there would be substantial harm to the setting of three specific SAMs which would be in conflict with the development plan.

[65]The inspector’s conclusion appears at paragraph 248. She concluded that, on balance, the positive benefits of renewable energy, location of the site within an identified Strategic Search Area, and the acceptable level of change to landscape character and visual amenity “outweigh the considerable weight against the appeal from the identified harm to the setting of the SAMs and the limited identified harm in the other respects identified.” Reading the report fairly, and as a whole, the inspector was clearly aware of the impact of the proposed development on the SAMs (she identified that in paragraphs 191 to 210) and that is referred to in paragraph 242 of the report. The harm was greatest (“substantial”) in relation to the setting of three SAMs in particular. Weighing the benefits of the proposal against the identified harm to the setting of the SAMs (that is the substantial harm to the three specific SAMs and the other identified impacts), she considered that the evidence was in favour of allowing the appeal. The inspector did, therefore, consider carefully the impact of the proposed development on the setting of the SAMs, amongst other things, and considered that that was outweighed by other factors. There was no error on the part of the inspector, nor on the part of the Welsh Minister in adopting her conclusions on these issues.

[66]Furthermore, in my judgment, the reasons do satisfy the requirements set out by the House of Lords in South Bucks District Council v Porter (No. 2) [2004] 1 W.L.R. 1953. Applying the language of paragraph 36 in particular, the reasons are adequate and intelligible. They do enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues including, in this context, the balance between the positive benefits of the proposed development and the impact on the setting of SAMs.

[67]For completeness, I note that the Claimant initially contended that the inspector (and hence the Welsh Ministers) failed to apply the presumption in PPW and Circular 60/96 and failed to consider whether the harm was unacceptable in accordance with the UDP. The Claimant abandoned these claims. It was right to do so. The language used by the inspector, in paragraph 248 in particular, makes it clear that the inspector was considering matters in terms of whether the positive benefits of the proposed development outweighed the considerable weight against the appeal from the harm to the setting of the SAMs. That language reflects the use of presumptions. Further, the inspector in paragraph 248 expressly considered whether the proposed development accorded with Policy E3 as the primary relevant policy in the UDP. That is the policy which requires consideration of whether, amongst other things, the proposed development impacts unacceptably on buildings or features of archaeological interest.

THE FOURTH ISSUE - FUNDING MECHANISMS FOR DECOMISSIONING WORKS

[68]The Claimant contends that the reasoning of the Welsh Ministers for concluding that it was not appropriate to require the setting up and operation of a financial agreement intended to secure the provision of monies to carry out decommissioning and restoration works on the expiry of the permission for the development is irrational or inadequate. The Claimant contends that the reasoning given for the decision is the nature of the development of the decommissioning and restoration works and these matters do not explain why a financial mechanism for securing the costs of those works is not appropriate.

[69]I accept that the paragraphs of the decision letter dealing with conditions are not well worded and are clumsily expressed. However, read fairly and in context, and bearing in mind that the letter is addressed to parties who would be familiar with the issues, the reasoning is adequate, intelligible and rational.

[70]The position, in my judgment, is as follows. First, the planning permission is granted subject to conditions which impose an obligation to decommission the site at the expiry of the planning permission and to restore the site: see conditions 6 to 8 of the conditions set out at Annex B to the decision letter.

[71]Secondly, the Welsh Ministers did not consider it appropriate to include additional conditions requiring the setting up and operation of a financial mechanism to ensure the provision of monies for decommissioning and restoration costs. Paragraph 4.22 of Welsh Government Circular 016/2014 provides that payments to be made to a local authority should not be secured by a condition attached to a planning permission. The decision letter refers to the Circular and to the fact that the financial arrangements in question should not be required by condition.

[72]Thirdly, the Welsh Ministers considered that it would not be appropriate to indicate that they were minded to approve the grant of planning permission but to require a legal agreement dealing with the financial agreement. While the language of paragraph 31 of the decision letter is clumsy, what the Welsh Ministers are saying is that the lack of a financial agreement in this case (i.e. on the particular facts of this case) would not justify the refusal of planning permission. That is, essentially, a planning judgment for the Welsh Ministers. The reference to the nature of the development and the type of decommissioning works is to be understood not as the positive reason why an agreement is not needed. Rather, the lack of a financial agreement is not considered to justify the refusal of planning permission – and there is nothing in the nature of the development or the decommissioning or restoration works to cause the Welsh Ministers to take a different view. In all the circumstances, therefore, the decision read fairly and as a whole is clear. A financial agreement should not be required by condition and the lack of a financial agreement would not justify the refusal of planning permission in this case. That is, ultimately, a matter of judgment for the Welsh Ministers.

ANCILLARY MATTERS

[73]The Claimant and the Defendants relied upon a large amount of evidence and advanced a number of legal arguments. In this judgment, I have focused on the principal issues and the principal evidence necessary to explain my conclusions. The parties can be assured that all the arguments, and all the material relied upon, have been considered.

[74]For the reasons given, the claim is dismissed. The parties have two weeks from the date of the handing down of this judgment to make and serve any written applications, and any written submissions, for any consequential orders.

CONCLUSION

[75]The Welsh Ministers were correct to conclude that the provisions contained in paragraphs 5.8.14 and 5.8.15 of EN-1 were not relevant to the assessment of the impact of the proposed development on the setting of archaeological monuments. Those matters fell to be assessed by reference to the development plan, and by the provisions of PPW as elaborated in Circular 60/96. There was no procedural unfairness in the way in which the Welsh Ministers considered that issue and, in any event, the Claimant has not suffered any material prejudice as a result of the way in which this issue was dealt with. The Welsh Minister did properly apply the relevant provisions of PPW, as elaborated in Circular 60/96, and did give adequate reasons for their conclusions. Reading the decision letter fairly and as a whole, the Welsh Ministers did give adequate reasons for their conclusion in relation to the absence of a financial agreement intended to secure the provision of monies for decommissioning and restoration works and their reasons are rational. For all those reasons, this application is dismissed.