“His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse.”
“Counsel for the Secretary of State suggested in the course of his submissions 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 that 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 for the method to be adopted by the decision-maker, provided always of course 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.”
“68. Conflict with one particular policy may be treated as having an adverse impact and yet of relatively little weight. At the same time, the decision-maker may consider that compliance with other policies designed to secure that development in general takes place without causing significant harm to a range of environmental factors, does involve a greater degree of compliance with the development plan than the non-compliance. The decision-maker is entitled to regard compliance with those policy considerations (even in the sense of simply avoiding harm) as having a greater priority or importance than the non-compliance with a policy designed to protect one other aspect, such as the landscape.”
“The Welsh Government strongly supports the principle of developing renewable and low carbon energy from all technologies and at all scales to meet our future energy needs. In determining planning applications for renewable and low carbon energy development, decision-makers must give significant weight to the need to meet Wales’ international commitments and our target to generate 70% of consumed electricity by renewable means by 2030 in order to combat the climate emergency. In Pre-Assessed Areas for Wind Energy the Welsh Government has already modelled the likely impact on the landscape and has found them to be capable of accommodating development in an acceptable way. There is a presumption in favour of large-scale wind energy development (including repowering) in these areas, subject to the criteria in policy 18. Applications for large-scale wind and solar will not be permitted in National Parks and Areas of Outstanding Natural Beauty and all proposals should demonstrate that they will not have an unacceptable adverse impact on the environment. Proposals should describe the net benefits the scheme will bring in terms of social, economic, environmental and cultural improvements to local communities. New strategic grid infrastructure for the transmission and distribution of energy should be designed to minimise visual impact on nearby communities. The Welsh Government will work with stakeholders, including National Grid and Distribution Network Operators, to transition to a multi-vector grid network and reduce the barriers to the implementation of new grid infrastructure.”
“Proposals for renewable and low carbon energy projects (including repowering) qualifying as Developments of National Significance will be permitted subject to policy 17 and the following criteria: 1. outside of the Pre-Assessed Areas for wind developments and everywhere for all other technologies, the proposal does not have an unacceptable adverse impact on the surrounding landscape (particularly on the setting of National Parks and Areas of Outstanding Natural Beauty); 2. there are no unacceptable adverse visual impacts on nearby communities and individual dwellings; 3. there are no adverse effects on the integrity of Internationally designated sites (including National Site Network sites and Ramsar sites) and the features for which they have been designated (unless there are no alternative solutions, Imperative Reasons of Overriding Public Interest (IROPI) and appropriate compensatory measures have been secured); 4. there are no unacceptable adverse impacts on national statutory designated sites for nature conservation (and the features for which they have been designated), protected habitats and species; 5. the proposal includes biodiversity enhancement measures to provide a net benefit for biodiversity; 6. there are no unacceptable adverse impacts on statutorily protected built heritage assets; 7. there are no unacceptable adverse impacts by way of shadow flicker, noise, reflected light, air quality or electromagnetic disturbance; 8. there are no unacceptable impacts on the operations of defence facilities and operations (including aviation and radar) or the Mid Wales Low Flying Tactical Training Area (TTA-7T); 9. there are no unacceptable adverse impacts on the transport network through the transportation of components or source fuels during its construction and/or ongoing operation; 10. the proposal includes consideration of the materials needed or generated by the development to ensure the sustainable use and management of resources; 11. there are acceptable provisions relating to the decommissioning of the development at the end of its lifetime, including the removal of infrastructure and effective restoration. The cumulative impacts of existing and consented renewable energy schemes should also be considered.”
“8. Having regard to the written and oral evidence, the main issues in the determination of the application are: • Whether the development would be acceptable in principle, having particular regard to the planning policy framework; • The effect of the development upon landscape character and visual amenity, having particular regard to the impacts on Bannau Brycheiniog National Park; • The effect of the development on ecological interests, including the effect of the proposed development upon the peatland resource; • The effect of the development upon cultural and historic assets; and • Whether any identified harm would be outweighed by the matters in favour of the development.”
“9. The Welsh Government (WG) has undertaken an assessment to identify the areas where, in principle, large scale wind energy proposals would be acceptable. Within these ‘Pre-Assessed Areas for Wind Energy’, there is a presumption in favour of large-scale on-shore wind energy development, and the associated change in landscape character, subject to the criteria set out in Policy 18 of Future Wales: The National Plan 2040 (hereinafter referred as Future Wales). The application site was excluded from the ‘Pre-Assessed Areas for Wind Energy’, meaning that there is not a presumption in favour of the development proposed in this instance. 10. Future Wales is clear that sites in National Parks and Areas of Outstanding Natural Beauty are considered unsuitable for large-scale wind and solar. Whilst the application site borders the Bannau Brycheiniog National Park, it is not located within its boundary or any other nationally protected landscape. Future Wales states that, outside of the ‘Pre-Assessed Areas for Wind Energy’ and nationally protected landscapes, a positive policy framework exists for the consideration of such developments, subject to the tests set out in Policy 18. 11. Policy 18 is generally permissive of low carbon energy projects, subject to the development not resulting in, amongst other things, unacceptable adverse environmental impacts. The environmental impacts of the development proposed in this instance will be comprehensively assessed later in this Decision. Whilst they pre-date the publication of Future Wales, both the adopted Caerphilly County Borough Local Development Plan (LDP) up to 2021 (Adopted 2010) and the adopted Merthyr Tydfil County Borough Council Replacement Local Development Plan (2016- 2031) (Adopted 2020) form part of the development plan framework for the area. Both of those documents provide for a generally supportive framework for the consideration of renewable energy schemes, subject to consideration of environmental impacts. 12. The site lies outside of the settlement boundaries identified within both the Caerphilly and Merthyr Tydfil LDPs and is therefore countryside for the purposes of planning policy. Both national and local policy advocate strict control of development within such areas. However, it is widely recognised that energy projects such as that proposed in this instance need to be sited in rural locations given the land-take and other requirements. It is therefore generally accepted that such developments constitute necessary infrastructure provision that would be justified in such a countryside location. This is reflected in the permissive policy framework at both a national and local level in circumstances where environmental impacts are found to be acceptable 13. Therefore, despite the fact that the site does not fall within the ‘Pre-Assessed Areas for Wind Energy’, and notwithstanding the fact that the site lies adjacent to Bannau Brycheiniog National Park, the principle of development is acceptable, subject to an assessment of the various environmental effects. The principle of the development would not therefore conflict with the aims of Future Wales, and neither would it conflict with the provisions of Policies SP5 and CW15 of the adopted Caerphilly LDP and Policies SW4 and EcW8 of the Merthyr Tydfil LDP.”
“21. Both Natural Resources Wales (NRW) and the Bannau Brycheiniog National Park Authority (BBNPA) have raised significant concerns with the approach and findings in respect of the impacts upon the National Park. The other LPAs also appear to acknowledge that the greatest impacts would be on the National Park. Specifically, it is submitted that the evidence underestimates the significance of effects, particularly on the National Park’s special qualities. Concerns have also been raised with the general finding that the natural beauty of the National Park would be conserved given that the ‘core areas’, including the central beacons, would not be subject to significant effects. Notwithstanding this, further concerns have also been raised regarding the magnitude of change assessment that cites moderating factors, with those parties alleging that such factors would fail to moderate the effects on Bannau Brycheiniog, resulting in the inherent value and impacts on the special qualities being underestimated. 22.There is nothing in legislation or planning policy that justifies the arbitrary division of the National Park into ‘core’ and ‘fringe’ areas for the purposes of considering landscape impacts. Indeed, both statute and policy require equal protection to be given to all parts of the designation and such an approach is generally consistent with the relevant guidance. Furthermore, I agree with NRW and BBNPA that an assessment of acceptability that focuses on whether a development would not harm the majority of special qualities, or indeed the core of the National Park, would be fundamentally flawed. Notwithstanding this finding, I also share the wider concerns that significant effects would not be confined to within 3km at BBNP LCA 9: Mynydd Llangatwg and Llangynidr, with extensive visibility and wider landscape character impacts across LCA3: Fforest Fawr; LCA7: Central Beacons; LCA8: Talybont and Taff Reservoir Valleys; LCA9: Mynyddoedd Llangatwg & Llangynidr; and LCA13: The Black Mountains. 23. At LCA3: Fforest Fawr (Viewpoint 21), the turbines would dominate the smooth, open skyline and detract significantly from the high scenic quality of the landscape. High tranquillity levels arising from its openness and lack of human influence would therefore be compromised. Moreover, the development would introduce night-time light pollution at this location. As a consequence, human influence would become a prominent feature and this would erode the sense of tranquillity and remoteness within the area. The iconic landscape at LCA7: Central Beacons (Viewpoints 18 and 24), with few detracting features relating to human development, and high levels of tranquillity, would also be adversely impacted. This would include significant impacts from the iconic summits, including Pen y Fan. Indeed, the visual prominence of the turbines, resulting from their size and proximity at around 12.5km, would attract attention and would represent incongruous features amongst the prevailing natural character and quality of views.”
“28. Having regard to the available evidence, and my own observations taken at my site visits, I share NRW’s concerns that the adverse visual effects experienced by people at these viewpoints would generally be significant. Moreover, such harm would not be restricted to the representative viewpoints, but would also extend along a number of promoted recreational routes, including Beacons Way, Cambrian Way, and Brecon Beacons Horseshoe Ridge Walk. Indeed, visibility from these routes would occur along the iconic ridge and summits of Corn Du, Pen y Fan, and Cribyn, which are less than 13km from the proposed turbine locations. Conclusion on Landscape and Visual Matters 29. On the basis of the foregoing, I find that by virtue of their scale and siting, coupled with their vertical projection and dynamic movement, the proposed turbines would cause harm to sensitive aspects of the landscape and detract from the special qualities of the Bannau Brycheiniog National Park. Such harm would be significant and would extend well beyond the 3km area in which the LVIA acknowledges significant harm to the BBNP. For the same reasons, the development would also introduce dominant man-made features at locations currently. … 32. The development would therefore have an unacceptable adverse impact on the setting of the Bannau Brycheiniog National Park. Indeed, it would fail to conserve or enhance its natural beauty and thus undermine the first statutory purpose of the designation. It would also interfere with people’s enjoyment of the landscape, undermining the second purpose of promoting the enjoyment of its special qualities by the public. The development would therefore run counter to the provisions of Policy 18(1) of Future Wales. There would also be conflict with Policies EnW5 and EcW8 of the adopted Merthyr Tydfil LDP, Policies SP10, CW4 and NH1 of the adopted Caerphilly LDP, and Caerphilly CBC’s adopted Supplementary Planning Guidance (SPG) document entitled ‘Smaller Scale Wind Turbine Development Landscape Sensitivity and Capacity Study’ which, amongst other things, advises that there is limited capacity for large scale wind turbine development in LCA17 due to the presence of the National Park.”
“Therefore, subject to the proposed mitigation and compensatory provisions, there would not be any unacceptable adverse impacts on protected species. The development would, therefore, broadly comply with Policies 9 and 18 of Future Wales and PPW. There would also be no conflict with Policy CW4 of the adopted Caerphilly LDP and Policies EnW1, EnW2 and EnW3 of the Merthyr Tydfil LDP.”
“82. There is no doubt that the development would bring with it substantial benefits, principally in the form of a significant contribution towards renewable energy production. The fact that such benefits could be brought forward as soon as 2027 adds further weight to the proposals. The economic benefits are also weighty considerations. However, for the reasons outlined above, I have found that the development would have an unacceptable adverse impact on the surrounding landscape and, in particular the setting of the Bannau Brycheiniog National Park. Indeed, the harm would be substantial and the development would fail to conserve or enhance the natural beauty of the BBNP. It would also cause material harm to the special qualities of the National Park and would interfere with people’s enjoyment of the land subject of the designation. 83. In balancing these impacts, I find that the harm to the National Park to be a compelling consideration that outweighs the benefits that would be associated with a grant of planning permission. Indeed, despite the wider support for such proposals, I find that the development would conflict with Policy 18(1) of Future Wales which states that proposals for renewable and low carbon energy projects qualifying as Developments of National Significance will be permitted where the proposal does not have an unacceptable adverse impact on the surrounding landscape, particularly on the setting of national parks and areas of outstanding natural beauty. Moreover, whilst ecological harms have been found to be policy compliant by reason of wholly exceptional circumstances, they nevertheless attract moderate weight against the scheme given the finding that the harm to landscape is sufficient to withhold planning permission and thus prevent the benefits of the scheme from being realised. 84. Therefore, on the basis of the foregoing, I find that the application for planning permission should be refused. In coming to this conclusion, I have considered the duty to improve the economic, social, environmental and cultural well-being of Wales, in accordance with the sustainable development principle, undersection 3 of the Wellbeing of Future Generations (Wales) Act 2015 (WBFG Act). I have taken into account the ways of working set out at section 5 of the WBFG Act and consider that the findings of this decision are in accordance with the sustainable development principle through its contribution towards one or more of the Welsh Ministers well-being objectives, as required by section 8 of the WBFG Act.”