“Proposals for the provision of renewable energy resources will be permitted provided: … (ii) the scale, form, design, appearance and cumulative impacts of proposals can be satisfactorily incorporated into the landscape, seascape or built environment and would not significantly adversely affect the visual amenity, local environment or recreational/tourist use of these areas, (iii) there would be no significant adverse effect on local amenity, highways, aircraft operations or telecommunications.” … (ii) the scale, form, design, appearance and cumulative impacts of proposals can be satisfactorily incorporated into the landscape, seascape or built environment and would not significantly adversely affect the visual amenity, local environment or recreational/tourist use of these areas, (iii) there would be no significant adverse effect on local amenity, highways, aircraft operations or telecommunications.”
“9. Section 38(6) … provides that planning applications and appeals should be determined in accordance with the development plan unless material considerations indicate otherwise. With this in mind the Minister agrees with the Inspector that the proposal would be in conflict with criteria (ii) and (iii) of UDP Policy R11 and takes the view that, having regard to section 38(6), planning permission should be refused unless material circumstances indicate otherwise. 10. The Inspector considered a wide range of issues arising from the proposed development and, setting aside its effect on the peat bog habitat, he was satisfied that the benefits of the production of renewable energy from this proposal would outweigh the conflict with the development plan and all the other material considerations. Subject to the following comments the Minister, also setting aside the effect of the proposed development on the peat bog habitat, agrees the Inspector’s conclusions on the other issues raised by the proposed development. …….. 20. … the Minister agrees with the Inspector’s conclusions and accepts that the development as proposed raises the risk of an unacceptable degree of harm to the peat habitat which is sufficient to justify refusal of this proposal.”
“This section describes the proposal; sets out the context of this re-submission including the site selection and the design evolution; refers to the Inspector’s and Welsh Minister's detailed consideration of the 2008 submission for 19 turbines at Mynydd y Gwair; details the relevance of the Mynydd y Betws Wind Farm currently under construction adjacent to the site for 16 turbines with a maximum height of 110 metres to blade tip; analyses the energy policy framework with its guidance on targets for renewable energy generation; indicates the conflict of the proposal with the criteria of Policy R11 of the UDP, and the weight to be afforded this; and comments in detail on the acknowledged impact on sensitive receptors of the proposal, both during the construction and operational phases, including access proposals. The section's conclusions, among others, is that notwithstanding the weight to be afforded the proposal’s conflict with the UDP in terms of its acknowledged significant adverse impact on the landscape, this is outweighed by the Welsh government guidance in TAN 8 that significant landscape changes should be accepted in land allocated within Strategic Search Areas for wind farms ”
“The Ministerial decision letter and the Inspector's Report in respect of the previous wind farm proposal ... are fundamental material planning considerations and have been afforded significant weight in the consideration and assessment of this planning application, particularly in view of the fact that national and local planning policy context has not significantly altered since the appeal. The Planning Inspector's recommendation report and the Minister's decision report in respect of the previous proposal for 19 wind turbines focused on a number of key issues, which the applicants [sic] has sought to address within this revised planning application and accompanying Environmental Statement. Section 38(6) of [the 2004 Act] provides that planning application should be determined in accordance with the development plan unless material considerations indicate otherwise. In consideration of the appeal the inspector gave weight to UDP Policies R11, EV22 and EV29 ... Policy R11 specifically applies to renewable energy, and whilst the Inspector acknowledges a conflict between the objectives of policies EV22 and EV29 and the large wind farm, the Inspector considered “the tests included within Policy R11 require the consideration of what are in effect the same matters. Therefore I consider that the most significant policy to test this proposal against is R11”
“The starting point for the consideration of this application must be International, UK and Welsh policy in relation to climate change and the role renewable energy plays in facing this global challenge. Planning Policy Wales (2012) and TAN 8 Planning for Renewable Energy (July 2005) provide the key Welsh planning policy guidance and advice. ”
“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.”
“The presumption which section 18A lays down is a statutory requirement. It has the force of law behind it. But it is, in essence, a presumption of fact, and it is with regard to the facts that the judgment has to be exercised. The primary responsibility thus lies with the decision-taker. The function of the court is, as before, a limited one. All the court can do is review the decision …. I do not think that it is helpful in this context, therefore, to regard the presumption in favour of the development plan as a governing or paramount one. The only questions for court are whether a decision-taker had regard to the presumption, whether the other considerations which he regarded as material were relevant considerations to which he was entitled to have regard and whether, looked at as a whole, his decision was irrational. It would be a mistake to think that effect of section 18A was to increase the power of the courts to intervene in decisions about planning control. That section … is addressed primarily to the decision-taker. The function of the court is to see that the decision-taker had regard to the presumption, not to assess whether he gave enough weight to it where there were other material considerations indicating that the determination should not be made in accordance with the development plan.”
“Counsel for the secretary of state suggested...that in the practical application of the section two distinct stages should be identified. In the first the decision-maker should decide whether the development plan should or should not be accorded its statutory priority; and in the second, if he decides it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration. But in my view it is undesirable to devise any universal prescription of the method to be adopted by the decision-maker, provided always that he does not act outwith his powers. Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision-maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. In the particular circumstances of the present case the ground on which the reporter decided to make an exception to the development plan was the existence of more recent policy statements which he considered had overtaken the policy in the plan. In such a case as that it may well be appropriate to adopt the two-stage approach suggested by counsel. But even there that should not be taken to be the only proper course. In many cases it would be perfectly proper for the decision-maker to assemble all the relevant material including the provisions of the development plan and proceed at once to the process of assessment, paying of course all due regard to priority of the latter, but reaching his decision after a general study of all the material before him. The precise procedure followed by any decision-maker is so much a matter of personal preference or inclination in light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate.”
“..the section requires not a simple weighing up of the requirement of the plan against the material considerations but an exercise that recognises that while material considerations may outweigh the requirements of a development plan, the starting point is the plan which receives priority. The scales do not start off in even balance.”
“ it has to be remembered that they are addressed to the parties who will be well aware of the issues that had been raised in the appeal. They are thus addressed to a knowledgeable readership and the adequacy of their reasoning must be considered against that background. That approach applies with particular force to a planning officer's report to the committee. Its purpose is not to decide the issue, but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large but to council members who, by virtue that membership, may be expected to have substantial local and background knowledge. There would be no point in a planning officer's report setting out in great detail background material, for example, in respect of local topography, development planning policies or matters of planning history if the members were only too familiar with that material …. ”
“In my view the report…was not only comprehensive in its treatment of the facts but sufficiently advised the Committee upon the statutory and policy framework within which the decision was to be taken. The Committee were adequately advised and their decision should stand.”
“… conditions imposed must be for a planning purpose and not for any ulterior one, and…they must fairly and reasonably relate to the development permitted. Also they must not be so unreasonable that no reasonable planning authority could have imposed them”
“.. there was no absolute rule that the existence of difficulties, even if apparently insuperable, had to necessarily lead to refusal of planning permission for a desirable development. A would-be developer might be faced with difficulties of many different kinds, in the way of site assembly or securing the discharge of restrictive covenants. If he considered that it was in his interests to secure planning permission notwithstanding the existence of such difficulties, it was not for the planning authority to refuse it simply on their own view of how serious the difficulties were. ... If it was irrational to grant planning permission subject to a condition which had no reasonable prospect of being implemented then it had to be no less irrational to refuse planning permission on the ground that a desirable condition had no reasonable prospect of implementation and therefore could not be imposed. In truth, neither course was irrational. What was appropriate depended on the circumstances and was to be determined in the exercise of discretion of the planning authority. But the mere fact that a desirable condition appeared to have no reasonable prospect of fulfilment did not mean that planning permission must necessarily be refused. Something more was required before that could be the correct result. ”