Holder v Gedling Borough Council [2016] EWHC 3095 (Admin)

[2016] EWHC 3095 (Admin)Case No CO/2790/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice Centre, 33 Bull Street, Birmingham, B4 6DSDate 02/12/2016
Before
MR JUSTICE GREEN
Between
HolderClaimantGedling Borough CouncilDefendantMr and Mrs Charles-JonesInterested Parties
Richard Harwood QC (instructed by Harrison Grant) for ClaimantRichard Kimblin QC (instructed by Council Solicitor and Monitoring Officer) for Defendant for The Interested Parties were not representedHearing Hearing date: 7 th November 2016
Judgment ApprovedMR JUSTICE GREEN :
[1]This case concerns a challenge to the reasoning set out in an Officer’s Report (“the Report”), which recommended to a planning committee (“the Committee”) that they approve permission for a 50 metre high turbine on a farm within 120 metre of a bridleway. The case, at base, concerns the rationality of the reasons of the relevant planning official (“the Officer”), accepted by the Committee, for rejecting objections relating to: carbon offsetting; the implications of the fact that the applicant’s for planning permission (Mr and Mrs Charles-Jones) had availed themselves of a prior approval mechanism to install roof based solar panels; the nexus between revenues from the turbine and the farm business; whether measures of mitigation to visual impact could ever amount to free standing benefits; the existence and viability of alternatives; the impact on safety and amenity for local horse riders; and the meaning of the Written Ministerial Statement of 18th June 2015 on proposed wind energy developments.[2]There is before the Court a claim for judicial review of the decision of Gedling Borough Council (“GBC”) to grant planning permission for a wind turbine. The Claimant is a member of Woodborough and Calverton Against Turbines (“WACAT”). Planning permission was originally granted by GBC on the 3rd November 2011. That permission was, however, quashed in proceedings culminating in a judgment of the Court of Appeal of 8th May 2014: R (Holder) v Gedling Borough Council [2014] EWCA Civ 599 (“Holder”). The planning application was subsequently re-determined and permission was granted on the 20th April 2016. Permission to apply for judicial review was granted on the 25th July 2016. The challenge relates to objections to development in the Green Belt. The focus of the grounds of review is the Report to the Committee. It is common ground that applications for permission on the Green Belt should only be granted where there are “very special circumstances”. It is also common ground that absent “very special circumstances” the present turbine development would be an inappropriate development and hence to be rejected. The Report came to the conclusion that, when all the various considerations were balanced, there were very special circumstances. That conclusion lies at the heart of the challenge in the present case. B. Relevant Facts[3]Woodborough Park is a farm close to the village of Woodborough in Nottinghamshire. The land is open countryside and is within the Nottingham Green Belt. In 2005 the owners of Woodborough Park received planning permission for the replacement of the existing farmhouse and a new farmhouse was subsequently constructed. In 2009 the owners applied for permission for a new barn for the storage of harvested grain. Permission was granted and the new storage facility has since been built. On the 19th August 2010 planning permission for the erection of two 11kW wind turbines was granted. These were to have 18 metre high masts with 13 metre diameter rotors. On the 6th June 2011 GBC granted permission for the erection of two ground mounted photovoltaic panel arrays. These were constructed and each array has a width of 11 metres with a height above ground of 2.4 metres.[4]The planning application in dispute was submitted on the 11th May 2011. It was given the reference 2011/0523. The proposal was intended to replace the planning permission for the two smaller turbines. The permission related to the retention of a single medium size wind turbine (an Enercon E33) with a generating capacity of 330kw. The turbine has a hub height of 50.09 metres and a blade length of 16.7 metres. Ancillary development comprises of permanent access track and a crane pad. The turbine is connected to the grid via a transformer situated beside the farmhouse with low voltage cable from the turbine buried one metre below ground level. The transformer feeds the generated electricity from the turbine onto the farm supply and back into the grid.[5]In the Report the Officer described some of the characteristics of the site. He observed that there were no regional or local nature conservation designations covering the site. It is classified as Dumbles Rolling Farmland, a subtype of Nottinghamshire farmlands, and it was within the Nottinghamshire Landscape Character Assessment as Woodborough Sloping Farmland. The typography around the site rises from the south to the north with a ridgeline at around 132 metres to 133 metres at its highest point. There is a bridleway, Spindle Lane, which follows the ridgeline in an east-west direction linking Georges Lane with Foxwood Lane. The wind turbine is located approximately 120 metres south of the bridleway.[6]A small deciduous woodland block lies 520 metres to the east of the wind turbine. This is identified within the GBC Replacement Local Plan as a Site of Importance for Nature Conservation and a Scheduled Ancient Monument owing to the location of an Iron Age hill fort within the wood. The application site is approximately 800 metres to the southern edge of Calverton Village and approximately 1500 metres to the west edge of Woodborough Village. The closest residential property to the application site is approximately 400 metres to the south. Beyond this the three closest properties are 530 metres, 580 metres, and 840 metres away.[7]There are a total of 73 Listed Buildings, 4 conservation areas and 3 scheduled monuments within the 5 kilometre zone of “Theoretical Visualisation Study Area”. C. Relevant Legal Considerations[8]Paragraphs [87] and [88] of the National Planning Policy Framework (“NPPF”) state as follows:
“87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. 88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.”
[9]Whether the test in paragraph [88] is satisfied is a matter of planning judgment which involves a weighing up of the considerations which are to be placed on each side of the planning balance: see e.g. Redhill Aerodrome v Secretary of State for Communities and Local Government [2014] EWCA Civ 1386 at paragraph [20] per Sullivan LJ.[10]In considering the balancing exercise it is a matter for the judgment of the decision maker as to the extent to which alternative sites are taken into account. So, for example, in Derbyshire Dales DC v Secretary of State for Communities and Local Government [2009] EWHC 1729 at paragraphs [14] and [15] Lord Justice Carnwath (sitting at first instance) observed that there had been numerous instances of attempts to overturn decisions upon the basis that the decision maker had refused permission on site by reference to the merits of another, or alternatively had granted permission without regard for the merits of another. Lord Justice Carnwath observed:
“It is not surprising that such challenges have generally failed. Common sense suggests that alternatives may or may not be relevant depending on the nature and circumstances of the project, including its public importance and the degree of the planning objections to any proposed site. The evaluation of such factors will normally be a matter of planning judgment for the decision-maker, involving no issue of law.”
[11]The present case involves a challenge to the assessment by the Officer, and thereby to the decision of the Defendant which is assumed to have accepted the Officer’s recommendation and reasons. It is not in dispute in the present case that the weight to be attributed to any particular consideration, as material or otherwise, constitute matters of planning judgment which are within the jurisdiction of the decision maker save insofar as the decision maker lapses into irrationality or some other error which sounds in judicial review, such as taking into account irrelevant and immaterial considerations or ignoring relevant and material considerations. D. The Claimant’s grounds of challenge[12]The Claimant raises seven grounds or objections to support its broader contention that GBC erred in finding that there were very special circumstances justifying the grant of approval. These may be summarised as follows.[13]Carbon offsetting: First, the Council erred in its analysis of the contribution of renewable energy by way of carbon offsetting brought about by the turbine. In particular the Council failed to have regard to alternative means of generating renewables.[14]The relevance of prior approval: Second, the Council erred in overlooking the relevance of existing solar panels on a barn roof which were the subject of a prior approved development order.[15]The financial contributions made by revenues from the turbine to the farming business: Third, the Council erred in accepting that the turbine would make a significant financial contribution to the future profitability of the farm holding and would assist in securing the operation of the agricultural business in the longer term.[16]Measures of mitigation cannot amount to a benefit: Fourth, the Council erred in accepting that a measure of mitigation could also amount to a benefit when it accepted the Officer’s conclusion that ecological enhancements could amount to very special circumstances.[17]Alternatives: Fifth, the Council erred in considering that any alternative must generate the same amount of renewable energy as the wind turbine.[18]The impact of a turbine on safety and amenity – horses and riders: Sixth, the Council erred in failing to have regard to a material consideration, namely that local horse-riders had reported that their horses had been disturbed by the wind turbine whilst being ridden on the nearby bridleway and were now not using the bridleway because of the turbine.[19]The Written Ministerial Statement of 18th June 2015 on wind energy: Localism v populism: Seventh, the Officer misdirected the Council as to the interpretation of the Written Ministerial Statement of the 18th June 2015 (on proposed wind energy developments). The Council thus erred when considering that the concerns of the local population had been addressed. E.

(i) The issue

[20]The Claimant initially argued that the Officer correctly concluded that the generic benefits of generating renewable energy were not “… a very special circumstance since they could be achieved outside of the Green Belt”. However the Council then inconsistently accepted carbon offsetting as a direct benefit to the farm. The gist of the argument, as it was refined during the hearing, was that any benefit of carbon offsetting was far too weak, remote and generic to be accorded any material weight at all. (ii) The Officer’s Report[21]The nub of the Officer’s reasoning is found in paragraphs [7.16], [16.1] and [16.2]. In paragraph [7.16] the Officer expressed his opinion that the overall need for renewable energy and the wider benefit should be given “moderate weight in determining whether there are very special circumstances”. It was observed that whilst the turbine would contribute to achieving statutory national targets and the production of renewable energy was supported by government policy (as set out in the NPPF) such benefits would apply wherever the turbine was located (subject to wind conditions) and did not, therefore, override the substantial protection given to the Green Belt. In paragraph [16.1] the Officer stated:
“… that the mitigation of climate change tied together with the contribution the proposal makes to the national targets for carbon reduction and energy generation is capable of forming part of the very special circumstances. However, this benefit would not carry significant enough weight to overcome the inappropriateness of the development within the Green Belt on its own as the benefits are also capable of being replicated on non-Green Belt land where the development, by definition, would not be inappropriate. The wind turbine would generate a significant level of renewable energy for a further 24 years and there is a valuable contribution that the wind turbine would make to cutting green house gas emissions thereby tackling climate change. For the purposes of my assessment I have attached moderate weight to the overall need for generating renewable energy in this instance. This is in reference to paragraph 98 [NPPF] which states that local planning authorities should recognise that small-scale projects provide a valuable contribution to cutting green house gas emissions, unless other material considerations indicate otherwise.”
[22]In view of this the Officer considered that it was necessary to look at the individual circumstances advanced by the applicants for permission against the harm arising from the inappropriateness of the development in the Green Belt and any other harm.[23]In paragraph [16.3] the Officer made another point relevant to his overall assessment, namely that prior to the implementation of planning permission which had been granted to earlier applications for the erection of two individual 18.5 metre high wind turbines, the Applicants had sought permission for a single (replacement) medium sized wind turbine deploying more efficient technology. The Officer observed: “The decision to apply for a single larger wind turbine was driven by the increased efficiency and increased energy generation resulting in a greater environmental benefit and greater benefits to the farm”.[24]The approach of the Officer, accepted by the Council, may thus be summarised as follows:(i) the turbine made a valuable contribution to national climate change targets which was capable of being taken into account when considering “very special circumstances”;(ii) however the contribution was not, per se, enough;(iii) therefore the Council had to consider the contribution made to climate change along with other benefits which arose;(iv) in considering the intrinsic value of the turbine it was relevant that it would generate renewable energy over a long period of time (24 years), that the volume of energy was relatively significant, and that the model for which permission was sought was technologically efficient; and (v), the contribution of a turbine to climate change was consistent with the NPPF. (iii) Analysis[25]The Claimant’s objection that the benefit is too weak to be relevant does not, fairly, summarise the reasoning of the Officer. It is not right to say that the generation of renewable energy did not amount to a very special circumstance because it could be achieved outside of the Green Belt. This is far too simplistic. On the contrary the Officer acknowledged that the contribution to climate change objectives was significant, could be relevant to an assessment of “very special circumstances” but needed to be viewed in conjunction with other benefits, if it was to pass the threshold of “very special circumstances”. I can detect no error of logic or evaluation in the Officer’s reasoning. F. Ground II: Solar Panels Approved under Prior Approval[26]It is next argued that the Council failed to have regard to other means of generating renewable energy onsite and in particular the 197kW solar panels on the roof of an agricultural building (a farm barn). Prior approval was given to this on the 5th October 2015 and the panels were installed in December 2015. It is said that whilst the Report mentions the prior approval under the planning history it does not refer to the 197kW capacity of the barn solar panels. This contrasts with the 330kW power of the wind turbine. The proportion of the maximum theoretical output generated will differ between wind and solar. The turbine under challenge has generated circa 23% of its theoretical maximum capacity. The Report suggested that solar panels would generate between 11-15% of their capacity. It is said that even at those figures the solar barn panels would provide a substantial proportion of the energy which would be generated by the turbine. The solar electricity generation is, accordingly, a major factor in any comparison performed between emissions of the farm and renewable energy generation. The Committee had, it is said, failed to take this into consideration.[27]There are three reasons why I do not accept this argument. First, it is hard to see why the existence of these particular renewable energy sources should be of any great significance. This is because the local authority has no control over the installation. It can be installed quite irrespective of whether the turbine is approved or not. So, for example, if the applicant’s had not installed this capacity and the turbine had then been approved the authority could not have prevented the subsequent installation of the solar panels capacity upon the basis that the applicants now had ample renewables capacity (via the turbine) and had no need for the extra energy. If it cannot do this afterwards it seems questionable why it should do so beforehand. Second, in any event the Committee was aware of the existence of this capacity and can be presumed to have taken it into consideration. Third, on the logic of the Officer’s Report it is difficult to see how or why the existence of this limited capacity would have made any difference to the outcome. G. Ground III: Financial Security of the Farm (i) The issue: The nexus between turbine revenues and the farm business[28]The third complaint is that the Committee erred in concluding that the revenues from the turbine would be of benefit to the farm. It is said that on an analysis of the relevant corporate and other commercial documents the nexus between revenue and benefit is not capable of being guaranteed. (ii) The evidence[29]Mr and Mrs Charles-Jones submitted, in their application for permission, that the provision of renewable energy and the associated receipt of income would contribute towards the future profitability of the farm and would assist in securing the operation of the agricultural business in the longer term. It was estimated that the turbine would provide an annual revenue of £204,800 which reduced to a net figure of £112,500 when proper account was taken of interest repayments and operating and maintenance costs. In view of this the applicants advanced three main grounds. First, that the provision of a consistent and regular income would stand as a hedge against volatility in agricultural market prices. Evidence was provided relating to crop prices at the farm which demonstrated the fluctuations in wheat and oil seed rape prices between 2009 and those in 2014/15 and the net returns of the farm business. The data also demonstrated the impact that the turbine revenue would have on financial performance. The second point was that the revenue provided a fund allowing for investment in relation to labour, machinery and farm repairs. Replacement of machinery was expensive, necessitating substantial outlay. The revenue generated therefore assisted in securing the farm business. The third point was that the revenue provided the security to invest in future projects in a political environment where the “Single Farm Payment” was subject to “constant political review”. In view of this Mr and Mrs Charles-Jones contended that the proposal for on-site energy generation amounted to diversification of a rural enterprise providing a constant stream of income which would assist in insulating the farm against volatility from extraneous factors, such as crop prices and yields, and farm support frameworks and mechanisms. The proposal was thus consistent with the NPPF in supporting the rural economy. (iii) The Officer’s Report[30]The Officer accepted the thrust of this argument, concluding that it was consistent with the policy set out in the NPPF (paragraph [28]) for supporting a prosperous rural economy and promoting diversification of agriculture. It is clear and important that the Officer accepted the position of Mr and Mrs Charles-Jones that all the revenues would in fact be available for farm business related purposes. The Officer stated: “16.5 As discussed… there is also a benefit to the farm in terms of financial security and profit smoothing. It has been highlighted that crop prices have fluctuated and cannot be guaranteed. The wind turbine offers financial security to the farm and would enable diversification and investment in labour and machinery. It is my opinion, that whilst the farm is a business, there are wider public benefits to diversification of farms and ensuring that they are financially viable. These include the continued management of the countryside, the production of food and the contribution the farm makes to the rural economy. As such I have attached substantial weight to the need to support a prosperous rural economy and to promote diversification of agriculture in line with the requirements of Paragraph 28.” (iv) The Claimant’s submissions[31]In relation to this the Claimant conducted a forensic analysis of the farm business and of publicly available documents and in the light of that analysis suggests that the underlying premise, which is that revenue from the turbine will in fact be used to support the farm, is unsupported by evidence. The Claimant’s have conducted an analysis of the corporate vehicle which owns the turbine and its shareholding structure. The articles of association are not before the Court and, it seems, were not before the Committee. However, it is argued that net profits from the turbine will be remitted to the company and distributed as dividends to the shareholders. The Claimant has come to the conclusion that there is therefore no causal connection between the revenues generated by the turbine and the farm and hence the Officer’s acceptance that these revenues are a benefit is false.[32]I can summarise the detail of the argument in the following way. The farm is owned and run by Mr and Mrs Charles-Jones. The turbine is owned by JCCJ Limited (“JCCJ”), a company established in 2001 by Mr and Mrs Charles-Jones which remained inactive until shortly before erection of the turbine. The issued share capital of the company was increased at that point to include the two adult children of Mr and Mrs Charles-Jones. All of the income from the turbine is remitted to JCCJ, and not to the unincorporated farm business. After corporation tax income would be withdrawn from JCCJ by the payment of dividends which would be shared equally between the four shareholders and then subject to tax. As such there is no obligation upon any of the shareholders to re-invest the dividends in the farm business. Further, the point was made in oral argument that ownership of JCCJ could in the future be transferred to arms length third parties who were wholly independent and separate from the ownership and operation of the farm. The Claimant alleges that Mr and Mrs Charles-Jones were “sufficiently comfortable in the farm business to give half of the income to the turbine away to their children. The need for farm diversification to protect the farming operations therefore evaporates”. In view of these matters the Committee erred in assuming that the funds generated by the revenue would be used in the farm and would thus support rural diversification and amount to very special circumstances.[33]The association to which the Claimant belongs, WACAT, raised the matter with the Council. On the 12th January 2016 the Officer telephoned legal advisors acting for Mr and Mrs Charles-Jones seeking clarification as to whether income from the turbine went to JCCJ or the farm and as to shareholdings in JCCJ. The inquiry was answered to the effect that revenue went to the company and there were four shareholders. It is said that this information was not revealed or disclosed to the Committee. However a Planning Officer advised the Committee members orally that a query had been raised by WACAT relating to ownership of the turbine. The Officer explained that he had received confirmation from the applicant’s solicitor with regard to land ownership and income from the turbine. According to a webcast the officer then said:
“Ownership is not in my opinion a planning matter, but to clarify the turbine is owned by JCC Limited, a trading company set up by four members of applicant’s family and the relevant ownership certifications for the application have been served correctly.”
[34]It is said that the Officer erred in stating that “ownership” was not a planning matter whereas, given that the crux of the argument depended upon the causal link between the turbine revenues and the farm business, ownership was a critical matter. It is said that the Committee was not told that the applicants had confirmed that the turbine revenue would be remitted to the company.

(v) Post-grant of approval developments

[35]Subsequent to the grant of planning permission Mr and Mrs Charles-Jones have taken steps to confirm the position that they had adopted before the Committee, namely that the turbine revenues would be used for the farm. In particular: the corporate vehicle used to purchase the turbine is now owned solely by Mr and Mrs Charles-Jones as a result of a share transfer from their children to their parents; a Debenture and Loan Agreement has confirmed historic lending from the farm partnership to the company and has given the farm partnership security for the lending upon a commercial basis; the lease from the farm partnership to JCCJ in respect of the occupation by the latter of land owned by the former is shown to be a profit linked lease with all the profits going to the farm partnership. In a witness statement served 31st August 2016 the solicitor acting on behalf of Mr and Mrs Charles-Jones has confirmed that relevant documentation had been supplied to GBC to demonstrate and confirm the position adopted earlier viz that the revenue from the turbine would offer financial security to the farm. The Claimant argues that this evidence is inadmissible and in any event too late. (vi) Analysis[36]In my judgment the Officer and hence the Committee arrived at a proper and rational conclusion. Read fairly and in the round, together with the explanation given at the Committee meeting, the conclusion of the Committee was based upon the practical realities of a closely held farm business and not upon abstract and theoretical considerations relating to corporate structure. The Officer took into account that this was a closely-held family concern and there was a strong business link between the turbine and the farm. That was a reflection of simple reality and it reflected the substance of the evidence and submissions tendered in support of the application made by Mr and Mrs Charles-Jones which were accepted as genuine and truthful. That sense of reality has been forsaken by the Claimant in submissions who has subjected the business and its underlying documentation to a zealous forensic analysis and has sought to highlight inconsistencies and lacuna. This has been in order to create an innuendo or inference that in some unspecified way Mr and Mrs Charles-Jones have been acting improperly and not in good faith and/or with an underhanded motive. This sense is reinforced by the oral submissions of the WACAT representative at the Committee meeting who openly accused Mr and Mrs Charles-Jones of engaging in a “ruse” (see paragraph [48] below).[37]In the course of oral argument I asked counsel for the Claimant:(a) whether it was being alleged that there was bad faith on the part of Mr and Mrs Charles-Jones; and/or (b), whether it was denied that there was anypractical relationship between the turbine and the operation of the farm. It was confirmed in relation to (a) that there was no allegation of bad faith. In relation to(b) the argument about nexus was cast in a variety of ways. It was put in terms of the hypothetical ability of Mr and Mrs Charles-Jones to sell off the turbine to a third party and/or unravel the clarificatory documents to achieve a third party sale and/or in terms of half of the revenues of the turbine being diverted to the adult children of Mr and Mrs Charles-Jones. These answers highlight the fact that the dispute pitts practical reality against remote theory. The Officer and Committee sided with practical reality, as they were entitled to do. This was, par excellence, a matter of judgment for the Committee. I reject this ground of challenge. I have come to this conclusion without having to take into consideration the subsequent evidence (see paragraph [35] above). But that evidence confirms and strengthens my conclusion. They render the Claimant’s present analysis academic.[38]Finally, I note that the Officer did say that “ownership” was not a planning issue. In one sense this cannot be correct. If, to take a hypothetical example, the turbine was presently owned exclusively by third parties and the only connection with the farm was by virtue of a supply agreement terminable upon 28 days without penalty, then the ownership of the turbine (i.e. and hence the absence of any ownership interest on the part of Mr and Mrs Charles-Jones) might have been a factor of direct relevance to an argument that approval be given to the turbine because of the long term benefits to the farm from revenues generated by the turbine. But when the Officer’s comments are viewed in context it is my judgment that he was saying that, on the facts of the case, ownership was irrelevant. The Committee knew of the closely held nature of the farm and the turbine and were able to form their own view that formal ownership arrangements as set out in the documents did not provide a complete answer: practical reality and substance took precedence over form. H.

(i) The issue

[39]The Claimant contends that the Officer and hence the Defendant erred in principle in concluding that the landscape and ecological management measures to enhance the native hedgerow and tree planting on the Site (performed in pursuance of the Discharge of Condition Application as reinforced in a Unilateral Section 106 Undertaking) further enhanced the landscape characteristics of the area and amounted to a freestanding benefit. It is argued that it is legally wrong to treat a measure of mitigation (which thereby leaves a residual visual impact harm) as, simultaneously, a benefit.[40]The Claimant relies upon the fact that in the Deed of Undertaking of the 17th September 2012 pursuant to which Mr and Mrs Charles-Jones undertook to carry out a “landscape and ecology scheme” that phrase was defined in terms which, in effect, it is said amount to an acceptance that the measure is only a “partial mitigation”:
“Landscape and Ecology Scheme means the soft landscaping as shown on the Landscape and Ecology Plan received by the Council on 24 November 2011 to be planted by the Owners of the land as a partial mitigation measure to the visual impact of the Development on the immediate site and wider area.” (Emphasis added)
(ii) The Officer’s Report[41]In his Report the Officer stated that in assessing the impact of the wind turbine on the localised landscape he accepted that the turbine was prominent in the immediate vicinity. In this regard he noted the existence of the Discharge of Condition Application and the Unilateral Section 106 Undertaking and concluded that these “… further enhanced the landscape characteristics of the area”. He also stated that:
“… over time, as the planting matures, the vegetation would further mitigate localised visual impacts whilst enhancing the immediate landscape character” (paragraph [9.8]). In paragraph [16.7] the Officer reiterated that in his view: “… these works have a direct benefit to the landscape character and ecology in the area and should be given moderate weight in the planning balance”
. Consistent with this conclusion the Officer then (in paragraph [16.8]) held that the ecological enhancements undertaken in the wider area, combined with other factors (such as diversification of the local economy), could amount to “very special circumstances”. (iii) Analysis[42]I do not accept the Claimant’s criticism. As a matter of simple fact and logic a measure of mitigation may be a measure which does not in its entirety mitigate the harm to which it is addressed; but it may also, because of its intrinsic characteristics, amount to a discrete and direct benefit. The facts of the present case speak for themselves. The planting will, but only to a moderate degree, mask or shield the turbine. There will, self evidently, be a significant residual visual impact of the turbine over and above the planting. However, given that the planting is extensive and designed to enhance the landscape character and ecology of the wider area it is entitled to be treated as a discrete benefit. The planting thus serves two different functions which are not mutually exclusive. Once this is recognised the balancing of the pros and the cons is, quintessentially, a matter of planning judgment. The objection of the Claimant is as to the principle of treating a measure of mitigation as a benefit and not as to the balancing exercise which was duly performed upon the premise that the measure of mitigation could have a dual function and role.[43]I therefore reject the criticism made by the Claimant of the analysis conducted by the Officer. It follows that reliance upon the Report in this respect by the Defendant was not an error. I.

(i) The issue

[44]The Claimant originally argued that the Defendant had erred in considering that any alternative to the turbine must generate the same amount of renewable energy as the turbine in circumstances where the Court of Appeal had ruled in Holder (ibid) (i.e. in the present case) that an ability to meet the energy needs of the farm were sufficient to be an alternative. In the course of oral argument the nature of the objection appeared to change. It was contended that in considering alternatives the Council wrongly only considered alternatives which, in substance, generated the same or improved advantages vis-à-vis the existing turbine. It was said that the search for alternatives should have been broader and encompassed smaller renewable sources even if these generated less electricity and less revenue for the farm business.[45]Before considering the more refined manner in which the argument was advanced in the course of the oral hearing I should address the issue as it was initially formulated. As to this there is, in my judgment, nothing in the point. In Holder the Court of Appeal stated (ibid paragraph [17]) that the Council had erred in failing to consider alternative methods of producing renewable energy. All that the Court stated however in this respect was that a conclusion that alternatives were “immaterial” was a misdirection. On the contrary the Court stated that it:
“… was a factor for the Planning Committee to weigh in the balance”
. There can be no conceivable argument in the present case that either the Officer or the Committee did not consider alternatives. It is manifest that they did. Accordingly the point referred to by the Court of Appeal has no resonance in the present case.[46]The Claimant’s modified objection focuses at base upon the weighing exercise which was conducted by the Officer and by the Committee. It is a challenge to the planning judgment.[47]In the present case there was extensive evidence adduced as to alternative technology. A report prepared by Pegasus Group for Mr and Mrs Charles-Jones (“the Pegasus Report”) dated the 11th February 2015 comprised a “Alternative Technology Green Belt Openness Assessment” which, in its introduction, was said to have been prepared having regard to the ruling of the Court of Appeal in Holder and the subsequent request from GBC to consider potential alternative technologies. The Pegasus Report considered a range of potential alternative technologies which were technically feasible and comparable to the installed Enercon E33 turbine in respect of electricity generation and annual revenue. The Report compared and contrasted for example the E33 with two Vergenet 275kW turbines, 3.2hA of solar photovoltaic development, and a 121kW anaerobic digestion facility. The Pegasus Report also referred to other operational and approved turbines in the Nottingham-Derby Green Belt, by way of comparables. It is not necessary, for the purpose of this judgment, to set out in detail the substance and conclusions of the Pegasus Report. It suffices to record that the various comparables were measured by reference to their physical and their perceptual effects. The Report is detailed. The conclusion to the Report was that the E33 preserved openness relative to other alternative technologies.[48]WACAT submitted comments upon the Pegasus Report. The salient point advanced was that it was the sale of electricity to provide an income that was said to be the primary concern of the applicants for permission. WACAT then argued in this regard that:
“The farm has shown no ‘need’ for additional income or any long term business objectives”
. In relation to the applicant’s arguments that the income was needed and beneficial to the future development of the farm WACAT stated that:
“The single farm payment argument was and is a ruse”
. They objected that Mr and Mrs Charles-Jones had not produced figures to justify their needs based case. They complained that the Pegasus Report contained information which it was said was “misleading”. It is said that the focus should have been: “Whether alternative forms of renewable energy would be less harmful, less intrusive, efficient and meet the business requirements”.[49]It is apparent that both the Officer and the Committee had before them competing contentions as to alternative technologies. They were aware, quite plainly, of the scale of the revenue likely to be generated by the E33 turbine; and they were aware of the range of alternative technologies available and the pros and cons of each. There was ample evidence before the decision maker to enable it to formulate a judgment. The argument advanced by WACAT is, to put the point in its unvarnished form, a complaint that Mr and Mrs Charles-Jones were being greedy and that their business, which it was said was in any event successful, could perform perfectly adequately with a smaller financial contribution from renewable energy and that therefore smaller and less obtrusive renewable sources should therefore have been taken into account as comparable alternatives. There is nothing in this objection. The Council was well aware of the scale of revenue likely to be generated by the E33. They were cognisant of the uses to which that revenue could be put in the context of the applicant’s business. This was, par excellence, a matter of planning judgment for the Officer and the Committee and their conclusions were not irrational. The idea that, in a case such as this, the Committee should (a) have come to a view as to a hypothetical amount of revenue less than that projected to be derived from the turbine that the farm business needed; and then (b), in the light of that analysis conducted a new analysis of comparables and alternatives, is fanciful. In any event it is evident that the Committee, in the exercise of its judgment, was of the view that the scale of the projected revenue was a plus-point, not a negative. The Committee can be taken in short to have weighed and rejected the greed argument. Hence WACAT’s starting premise falls away. I reject the criticism based upon alternatives. J.

(i) The issue

[50]The turbine is approximately 120 metres away from the bridleway at Spindle Lane. The argument, as it evolved in the course of the oral hearing, was said to be that the Officer misdirected the Committee by both underplaying and mis-describing the nature of the complaints about safety and amenity that had been raised with the Council. It is said that there are two interrelated issues arising. The first is safety in that horses may be spooked by the turbine and this poses a threat to both horse and rider. But the objection is also articulated in terms of amenity in that the risk to safety has discouraged riders from using the bridleway. (ii) The Claimant’s evidence[51]Various letters of complaint were communicated by horse riders. Ms Julia Holder complained to “Nottinghamshire County Council” on the 25th May 2014. She provided details of an encounter with the turbine and she provided a video clip taken from her head-cam. She explained that she had ridden the bridleway for many years but in March 2014 when she approached the operative turbine her horse was unsure and in response to the sound of the “whoosing” refused to proceed. He repeatedly moved backwards and then “… put in a large number of bucks in an attempt to unseat me”. The situation was extremely dangerous and Ms Holder was forced to give up and return home. The horse remained dangerously unsettled, bucking all the way to the end of the path and then went sideways back down the main road. The incident left her shaken and frightened and put walkers in danger of being trampled. She considered that the position of the turbine resulted in the bridleway becoming unsuitable and unsafe. She lodged a formal complaint. I should add that Ms Holder had also earlier raised the same incident (occurring on the 2nd March 2014) by letter of complaint dated the 21st October 2014.[52]On the 21st August 2014 Ms Janice Smith wrote a letter of complaint to a Mr A Callingham, Environmental Health, Gedling Borough Council complaining about the detrimental impact of the turbine on recreational users of the bridleway. Ms Smith runs a small livery yard. Since the turbine became operative the bridleway had become a “no go area”. Horses have a fight or flight reaction to objects causing them fear. Ms Smith was aware of horses fleeing from the moving blades and/or the noise of the turbine. She considered that serious injury could be caused. She pointed out therefore that the inability of riders to use the bridleway amounted to the loss of an important local facility.[53]On the 3rd March 2015 the British Horse Society (“BHS”) wrote to “Development Control, Gedling Borough Council” commenting upon the application on behalf of both the BHS and the riders who were affected by the turbine. The communication objected to the proposal. It was explained that BHS did not have objection to wind turbines in principle. It was pointed out that the BHS had issued clear guidelines designed to reduce their impact as much as possible. In the present case the turbine was approximately 105 metres from the bridleway which was less than the recommended 200 metres. It was recorded that riders were now reluctant to use the bridleway due to the presence of the turbine resulting in a loss of amenity. It is not stated whether this reflects the two letters referred to above or other, additional, evidence. The communication was said to amount to a formal objection.[54]The Report also refers to the comments made by Nottinghamshire County Council Rights of Way whose officer referred to and endorsed the position of the BHS. In consequence the County Council sustained its objection. However, in a fair and balanced submission the Council also stated: “In mitigation, the development only comprises a single wind turbine rather than a multiple turbine wind farm straddling the bridleway. One turbine on one side is easier to cope with than several. It is also clearly visible from both directions over a distance to users so it does not present a sudden appearance from behind a hill or woodland. The ‘as built’ location does exceed the developer’s RoW buffer zone by 38m. Additionally, the Countryside Access Team has not received any reports of incidents where a horse has been startled or ‘spooked’ by the turbine since December 2013.” (iii) The Officer’s Report[55]In the Officer’s Report (at paragraph [13.6]) the Officer noted the comments and concerns of the BHS and local residents with regard to the potential dangers to users on the bridleway. The Committee’s attention was drawn to the BHS recommendation that wind developments should include a buffer of 200 metres from a bridle path. The Officer noted that there was no current government planning guidance covering this issue nor was there any statutory separation distance for wind turbines and public rights of way. The Officer stated: “Whilst I accept that the proposed turbine would be highly visible to the recreational users of the footpath and that it would be sited 120 metres from the bridleway there is not statutory government planning guidance that would warrant a refusal of this application at this distance in this location. It is my opinion, given that the development only comprises a single wind turbine rather than multiple ones, that the development is clearly visible from both directions from the bridleway and does not present a sudden appearance from behind a hill or woodland that the wind turbine does not present an undue risk to recreational users of the bridleway. I also note that the location of the wind turbine does exceed the developer’s Right of Way buffer zone by 38 metres. Whilst I note that the Borough Council has received representation regarding the wind turbine being a danger to horse riders, I also note the comments from the Countryside Access Team. The Countryside Access Team have stated that they have not received any reports that local riders have stopped using the bridleway nor have written reports been received of any incidents where a horse has been startled or ‘spooked’ by the turbine since December 2013.” (iv) Analysis[56]I do not accept the criticisms.[57]First, it is in my judgment clear that both the Officer and the Committee were fully appraised of all issues relating to both safety and amenity and considered these, as part of their judgment, in arriving at the conclusion that approval to the development should be granted.[58]Second, the Claimant objects more specifically that the statement recited above from paragraph [13.6] of the Report about the evidence given by the Countryside Access Team is incorrect given that, as set out above in this judgment, complaints had in fact been received. Accordingly the observations of the Countryside Access Team were incorrect and the Committee members were misdirected as to the nature and extent of objections. This is not sustainable. There is before the Court a transcript of the Committee meeting of the 13th January 2016. During this meeting a representative from WACAT took issue with the statement from the Countryside Access Team that they had not received reports that local riders had experienced problems. The representative specifically drew to the Committee’s attention the existence of two videos on YouTube depicting horses being spooked because of the turbine. The WACAT representative stated that he was aware that the Planning Committee had seen these videos. He told the Committee that the author of the Officer’s Report had not ridden a horse along the bridleway so did not have the expertise or experience to make a judgment that horses would not be spooked. And he reiterated the recommendation of the BHS as being predicated upon good health and safety reasoning. Thus insofar as there was any inaccuracy in the evidence of the Countryside Access Team it was brought to the attention of the Committee who therefore had the point well in mind.[59]But I am not in any event clear that the Countryside Access Team did make an error. There is no dispute about the fact that the Countryside Access Team did report that they had not received any complaints. The existence of the letters of complaint, to which reference has already been made, were brought to the attention of the Committee. They are not, on their face, addressed to the Countryside Access Team. There is not therefore any clear evidence that there was any inaccuracy by that Team. But quite regardless of this what is pivotal at the end of the day is that the Committee was aware that there were complaints and that there were videos evidencing horses being spooked. Ultimately the Committee formed its own judgment having received the recommendation of the Officer. This is nothing more than an objection to the manner in which the Committee exercised its judgment. The Committee received all the evidence and they were able to, and did, evaluate it. This complaint fails. K.

(i) The issue

[60]It is said that the Officer in the Report erred in his analysis of the Written Ministerial Statement (“WMS”) issued by the Secretary of State for Communities and Local Government on the 18th June 2015 in relation to proposed wind energy developments and accordingly misdirected the Committee who, because they accepted the Report, then misdirected themselves.[61]It is convenient to set out the statement in full:
“I am today setting out new considerations to be applied to proposed wind energy development so that local people have the final say on wind farm applications, fulfilling the commitment made in the Conservative election manifesto. Subject to the transitional provision set out below, these considerations will take effect from 18 June and should be taken into account in planning decisions. I am also making a limited number of consequential changes to planning guidance. When determining planning applications for wind energy development involving one or more wind turbines, local planning authorities should only grant planning permission if: • the development site is in an area identified as suitable for wind energy development in a Local or Neighbourhood Plan; and • following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing. In applying these new considerations, suitable areas for wind energy development will need to have been allocated clearly in a Local or Neighbourhood Plan. Maps showing the wind resource as favourable to wind turbines, or similar, will not be sufficient. Whether a proposal has the backing of the affected local community is a planning judgement for the local planning authority. Where a valid planning application for a wind energy development has already been submitted to a local planning authority and the development plan does not identify suitable sites, the following transitional provision applies. In such instances, local planning authorities can find the proposal acceptable if, following consultation, they are satisfied it has addressed the planning impacts identified by affected local communities and therefore has their backing.”
The issue in the present case concerns the transitional arrangements in the last paragraph. In particular the issue focuses upon the impact of the statement on the discretion of decision makers. (ii) The Officer’s Report[62]The description of the WMS by the Officer is found in paragraph [5.8] of the Report. The approach adopted may be summarised as follows. First, the Officer recited the operative part of the WMS. Second, he referred to these as “new” considerations, thereby recognising that the statement constituted a fresh matter for consideration. Third, the Officer explained that it was the transitional provisions of the WMS which applied. Fourth, the Officer stated that in terms of the weight to be attributed to the statement the Committee was primarily to have regard to the policies set out in the Local Plan unless other material considerations indicated otherwise pursuant to section 38(6) Planning and Compulsory Purchase Act. Fifth, the NPPF gave additional weight to this in that it stated that where a proposal accorded with an up-to-date Development Plan it should be approved without delay in accordance with the presumption in favour of sustainable development (paragraph [14] NPPF). Sixth, paragraph [196] NPPF made clear that the NPPF itself was a material consideration. National Planning Practice Guidelines were guidance only and not policy and were not to be attributed with the same weight as policy. Then the Officer stated that the WMS should be accorded “substantial” weight. He stated as follows:
“I would recommend that the decision maker should attach substantial weight to the Ministerial Statement and whether the planning impacts have been addressed as this represents the most recent expression of government planning policy for onshore wind… my interpretation of the wording of the Ministerial Statement is that if the concerns raised by residents had been addressed to the point where the impact of the development is acceptable then permission can be granted. The statement goes on to confirm that whether the impacts are acceptable and therefore has the backing of the local community as a ‘planning judgment for the local planning authority’. In applying the transitional provision to this application the representations received by the local community had been considered.”
[63]Later, in paragraph [17.2] the Officer stated:
“In considering the impacts of the proposed development, the planning issues raised by the local community have been consider… It is considered that on balance the proposals are acceptable and that any harm material to the determination of this proposal is outweighed by the benefits the turbine will bring. In respect of the Ministerial Statement released on 18th June 2015, if the concerns raised by residents have been addressed to the point where the impact is made acceptable, then permission can be granted. The statement goes on to confirm that whether the impacts are addressed and therefore has the backing of the local community is ‘a planning judgment for the local planning authority’ in my opinion all the planning matters raised by those objecting to the scheme have been acceptably addressed and outweighed by the overall benefits of the proposal.”
[64]In paragraph [5.8] the Officer also referred to a Decision taken by the Secretary of State at French Farm pursuant to section 77 TCPA 1990 (ref: APP/J0540/V/14/2220136). In paragraphs [27] and [28] of this Decision the Secretary of State stated: “27. In addition, having applied the transitional provision set out in the June 2015 WMS, the Secretary of State is not satisfied that the planning impacts identified by affected local communities have been addressed. In their responses to the Secretary of State’s letter of 19 June 2015, several members of the affected communities have repeated the concerns which they expressed previously about the planning impacts of the scheme. These include the harm to the residential amenity of some neighbouring properties in respect of outlook and the character and visual amenity of the landscape. It is clear from the IR that those planning impacts have not been addressed, as demonstrated in particular by the Inspector’s conclusions at IR131 and IR143. As those planning impacts as identified by the affected communities have not been addressed, the proposed scheme would not meet the transitional arrangements set out in the WMS of 18 June 2015; and the Secretary of State also gives significant weight to this non-compliance. 28. Having weighed up all relevant considerations, the Secretary of State concludes that the factors which weigh in favour of the proposed development do not outweigh its shortcomings and the conflict identified with the development plan and national policy. He considers that there are no material considerations of sufficient weight which would justify granting planning permission.” (iii) Analysis[65]The Claimant’s case was put in a number of different ways. In the skeleton argument it was described thus:
“Planning impacts which are raised by the local affected community are only addressed if they are found not to be harmful, whether on the original scheme or by mitigation. They are not addressed if they exist as harms, but are said to be outweighed by benefits.”
I had some difficulty with this proposition and in the course of submissions questioned Mr Harwood QC for the Claimant as to the implication of the proposition. What is meant by “impacts… raised by affected communities”? Who decides whether something is “addressed”? Does the Claimant’s analysis preclude a balancing exercise by a decision maker? The argument, as ultimately formulated during the course of the hearing, was that the Officer in the present case failed properly to advise the Committee as to the weight to be attached to the WMS. It is said that it follows from the statement that if the concerns of the local residents have not been addressed then, quite irrespective of any balancing exercise, this indicates that the application should be refused. It is accepted however that, provided that a planning committee is given this advice, the committee retained a residual discretion pursuant to section 38(6) PCPA to approve or refuse an application. But they nonetheless had to be given the advice that prima facie the application had to be refused, else they will have been misdirected.[66]In my judgment the Officer acted entirely properly. In the Report he summarised in the statement and the general principles to be applied to it. He recorded that it should be given substantial weight. He then left it to the Committee to form its own view of the facts in the light of the statement. The Committee members were well able to read the WMS for themselves. There is no magic in the statement and the Committee was able to consider and apply it and form a view as to its meaning. The Officer did express his own opinion on the merits, as he was entitled to do. The Committee therefore had before them his advice that they should accord substantial weight to the WMS but also the Officer’s opinion that when the weighing exercise occurred the Committee could properly grant permission.[67]The approach adopted by the Officer was pragmatic and sensible. The language used in the WMS is not susceptible to easy interpretation. As became evident in the course of oral argument before the Court, on one view (that advanced by Mr Harwood QC for WACAT) the statement accords decisive or dominant weight to the views of a vocal minority. As Mr Kimblin QC formulated the proposition on behalf of the Defendant, the issue was whether vocal minority populism trumped democratic localism. Mr Kimblin made two discrete points. The first concerned the general approach to construction. The second concerned the substance of the WMS. I take each in turn. First, Mr Kimblin drew my attention to the judgment of the Court of Appeal in R (West Berkshire District Council) v SSCLG [2016] EWCA Civ 441 at paragraph [21] in the joint judgment of Laws and Treacy LJJ. There the Court expressed a generalised health warning about policy statements. Policy makers were entitled to express their policy “in unqualified terms”. It was unnecessary for policy makers to include a warning in the shape of a reminder that the policy had to be applied consistently with the rule against the fettering of discretion as reflected in section 38(6). They observed that a policy maker may include exceptions but the law does not demand that a policy should incorporate exceptions as part of itself. The rule against fettering of discretion is not part of an administrative policy but is, to the contrary, “… requirements which the law imposes upon the application of policy”. Accordingly the articulation of policy in unqualified or absolute terms was not repugnant to the proper operation of those provisions. Mr Kimblin relied upon this as indicating that howsoever trenchant the articulation of policy in a policy statement was or might appear to be this could never serve to disqualify or prevent a Committee from exercising its own legitimate discretion as a matter of administrative law pursuant to section 38(6). The fact, therefore, that the Statement stated that “local people have the final say” was not, and could not, be justification for attributing decisive weight to the particular views of particular local people and thereby fettering the Committees discretion.[68]The second point was that to construe the statement as preferring populism over localism was an error and inconsistent with the NPPF. In Mr Kimblin’s view the local planning authority, through its decision, properly reflected the views of local people and it was through that specific decision that local people had the “final say”. The Committee was the embodiment of localism and could find a proposal to be “acceptable” if it was satisfied that on balance the proposal addressed planning impacts identified by local communities.[69]I agree with this analysis. In my view the statement does not endorse the principle that a vocal minority has the ability to exert decisive or dominant influence in a manner which would not otherwise occur. If this were the case how would decision makers treat competing vocal minorities? Is the outcome to be determined by the most populous or the loudest group of protestors? Is a silent majority to be ignored? Does probative value become a function of degrees of ardour? If it did it would create a perverse incentive for protesters to whip up a frenzy of objections and objectors in order to win a dispute. In my view this cannot be right whether considered in terms of pure logic, the concept of localism or the principles enunciated in the NPPF. I agree that ultimately it is the Committee that takes into account objectors views and then balances and reconciles the competing arguments and its decision reflects real democratic decision making.[70]I should, in making this observation, make clear for the avoidance of any doubt that I am addressing the interpretation of the WMS as a matter of principle. I am not suggesting that those who objected to the turbine in the present case are no more than a militant vocal minority.[71]In conclusion the Committee was properly advised. It formed its own view of the WMS. It weighed the pros and the cons of the proposal. It took fully into account local objections and concerns. At the end of the day it approved the proposal as it was entitled to do. L. Conclusion[72]For all the above reasons the claim does not succeed.

Cited in 1 later judgment