Andrew Jedwell v Denbighshire County Council (First Respondent) Dh and Dr Jones (Second Respondents)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Kitchin,Lord Justice Moore-Bick |
| Judgment Date | 02 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1232 |
| Docket Number | Case No: C1/2014/2478 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 December 2015 |
and
[2015] EWCA Civ 1232
Lord Justice Moore-Bick, VICE PRESIDENT OF THE COURT OF APPEAL
Lord Justice Lewison
and
Lord Justice Kitchin
Case No: C1/2014/2478
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE FOSKETT
Royal Courts of Justice
Strand, London, WC2A 2LL
Annabel Graham Paul (instructed by Richard Buxton Environmental and Public Law) for the Appellant
Jonathan Easton (instructed by Denbighshire County Council) for the First Respondent
John Hunter (instructed by Aaron and Partners LLP) for the Second Respondent
Hearing date: 19 November 2015
On 12 July 2013 the Denbighshire County Council ("the Council") granted conditional planning permission for the erection of two 46-metre high 50kw micro-generation wind turbines with a control box and access track at a farm called Syrior Farm on the outskirts of Llandrillo, Denbighshire. Before granting that permission the Council, through one of its planning officers, Mrs Denise Shaw, adopted a screening opinion stating that no Environmental Impact Assessment ("EIA") was required. Mr Jedwell, a local resident opposed to the scheme, says that the reasoning in that screening opinion was inadequate; that the inadequacy was not cured by subsequent events, and that in consequence the grant of planning permission was itself invalid. His challenge to the grant of planning permission by way of judicial review was rejected by Foskett J.
Although the application site is not itself within any specially protected area it is close to many. The judge recorded that it is within 4km of the Snowdonia National Park, just over 6km from the Clwydian Range and Dee Valley Areas of Outstanding Natural Beauty ("AONB") and within 4km of two separate Landscape of Historic Interest Areas, Y Berwyn and Y Bala a Glannau Tegid. The nearby Berwyn Mountains are a designated Special Area of Conservation ("SAC"), Special Protected Area ("SPA"), Site of Special Scientific Interest ("SSSI") and a National Nature Reserve ("NNR"). The Mynydd Mynyllod local wildlife site is about 400 metres to the north of the application site and the Unitary Plan designated AONB is about 2km to the south-east. The farm is within the Mynydd Mynyllod LANDMAP Character Area in the Denbighshire Landscape Strategy which has been evaluated as having a "high" visual and sensory aspect of County and regional importance. The application site also lies immediately adjacent to what was then a proposed wind energy development at Mynydd Mynyllod, and approximately 2.2km from an existing wind farm development at Braich Ddu. At the time of the events with which we are concerned no formal application for planning permission for development at Mynydd Mynyllod had been submitted.
Mrs Shaw, who was the newly-appointed planning officer dealing with renewable energy, visited the site in February 2012; and following her visit wrote to the applicants' agent drawing attention to the possibility that an EIA would be needed. Indeed her letter said that an EIA was "usually required" where the hub height of a turbine exceeded 15 metres, as these would. On 23 February 2012 the applicants' agents wrote to Mrs Shaw asking for a screening opinion. They argued that no EIA was required because the proposed development was small scale local development with no wide-ranging impacts.
Early in the following month Mrs Shaw consulted Countryside Council for Wales ("CCW") on the need for an EIA. CCW's reply of 15 March 2012 was expressly said to be "without prejudice to comments we may wish to make when consulted on any subsequent planning application or on the submission of more detailed information." The two paragraphs of particular relevance were as follows:
"Environmental Impact Assessment (EIA)
The proposed hub heights of the turbines are 35.4m, and therefore the scheme maybe considered a Schedule 2 development as defined by the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. However, in terms of likely impacts on natural heritage features, CCW believe an EIA will not be necessary. We do however advise that certain surveys and assessments are submitted as part of any subsequent planning application. Our detailed comments are as follows …."
"Landscape
Whilst not located within the boundaries of any statutory protected designated landscapes, we note that the application site lies immediately adjacent to the proposed Scottish Power Renewables wind energy development at Mynydd Mynyllod, and approximately 2.2km from the existing wind farm development at Braich Ddu. Consequently, in order to properly assess the cumulative impact of this wind energy development with others in the locality (either existing or within the planning process), we advise that the Applicants undertake a Landscape and Visual Impact Assessment (LVIA) appropriate to the proposals scale and location. For guidance in undertaking the assessment, we refer you to Guidelines for Landscape and Visual Impact Assessment, 2nd edition, 2002, The Landscape Institute and CCW's LANDMAP Information Guidance Note 3 (Nov 2008). We advise that the LVIA includes a map of the Zone of Theoretical Visibility (ZTV) as it will give a better understanding of the extent of visibility and over what distances and from which locations and receptors the visual effects are likely to be significant. Furthermore, a second ZTV map should be produced which shows the cumulative impact of this wind energy proposal with those mentioned above."
On the same day Mrs Shaw, on behalf of the Council, adopted and issued a screening opinion stating that no EIA would be required ("a negative screening opinon"). Section A of the opinion described the proposed development, and correctly said that it was what in the jargon is called a "Schedule 2 category" because of the hub height of the proposed turbines. Section B contained the determination that an EIA was not required. It was preceded by a formal rubric which stated:
"Consideration has been given by the Local Planning Authority to the relevant selection criteria in Schedule 3 to the Regulations, the general guidance contained in EIA Circular 11/99, and any indicative criteria in Annex A of the Circular and in the case of the Schedule 2 development, whether it is a sensitive area under Regulation 2(1)"
Section C gave the reasons for the Council's decision. It said:
"Having regard to the guidance given in the Regulations and the Circular, the proposed development would not give rise to significant effects in this instance."
The covering letter accompanying that opinion said that although a negative screening opinion had been issued the Council would still expect "detailed supporting information to be submitted with the planning application." It also set out CCW's response about landscape that I have already quoted together with some other observations about protected species. It did not, however, relay CCW's informal view that no EIA was required.
The application for planning permission came before the Planning Committee on 17 October 2012. As one might expect the Committee were given a detailed report by the officers of the Council. The report noted that CCW had said that the cumulative effect of the proposal had not been considered. CCW's position was that they objected to the proposal until such time as sufficient information had been provided to overcome their concerns. A number of individual objectors had also objected on the ground of the cumulative impact of the proposed development. The officers recommended refusal of the application. In suggesting reasons for refusal the report stated:
"It is the opinion of the Local Planning Authority that the erection of 2 no. 46 metre high 50KW turbines in this location would have an adverse impact on the setting of protected landscape areas… and have a detrimental impact on the open character and visual quality of Mynydd Mynyllod, a non-statutory landscape of county/regional importance, resulting in adverse visual effects when viewed from parts of north Berwyn, public access and public rights of way in the area. It is also the opinion of the Local Planning Authority that insufficient information has been provided to demonstrate the proposal will not give rise to adverse cumulative effects when considered in combination with operational and consented windfarm development, and in particular the Braich Ddu windfarm. In conclusion the harmful landscape impacts are considered to significantly outweigh the benefits of increased renewable energy generation…"
The Committee decided to defer making a decision on the application in order to allow the applicants time to address the queries raised by CCW. Following that meeting, on 22 January 2013 Mr Broughton, a local resident and part of a group opposed to the development, wrote to the planning officer. He said that the screening opinion had given no indication that the cumulative effect of the proposal had been considered, and that this was a "potentially serious problem" with the screening opinion. He ended by saying that the cumulative effect of the proposal "should be considered". The Council did not reply to that letter.
By the time that the application came back before the committee the applicants had been in correspondence with CCW. The applicants had questioned the need to include the potential impact of the proposal on the Mynydd Mynyllod scheme, because an application for planning permission for that scheme had not been made. CCW took the view that the scheme was reasonably foreseeable and should therefore be included in the cumulative impact assessment. This divergence of views was reported to the committee in...
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