Andrew Jedwell v Denbighshire County Council DH and Dr Jones (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 20 May 2014 |
| Neutral Citation | [2014] EWHC 1633 (Admin) |
| Date | 20 May 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/11522/2013 |
[2014] EWHC 1633 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting in Wrexham County Court
Mr Justice Foskett
Case No: CO/11522/2013
Annabel Graham Paul (instructed by Richard Buxton Environmental and Public Law) for the Claimant
Jonathan Easton (instructed by Denbighshire County Council, Legal Services) for the Defendant
John Hunter (instructed by Aaron & Partners LLP) for the Interested Parties
Hearing date: 30 April 2014
Introduction
The Interested Parties run as partners an organic livestock farm called Syrior Farm upon which both cattle and sheep are run. It is a tenanted farm located on the outskirts of Llandrillo, Denbighshire, about six miles from Corwen. Large areas of the farm are hillside areas.
On 24 April 2012 the Interested Parties submitted an application to the Defendant as local planning authority for planning permission for the installation at the farm of two 46-metre high 50kw micro-generation wind turbines with a control box and access track. (The overall height is measured from ground level to the top of one of the 9-metre blades when vertical, the height of the supporting column being 35.4 metres.) The two turbines were proposed to be located in a pasture field in open countryside on the south-western edge of the broad ridge of Mynydd Mynyllod about 400 metres to the north of the farm complex. The application was said to be based on legitimate "farm diversification".
Not unnaturally, a proposal such as this divides local opinion, reflected in the various representations received and, it may be thought, in the very close vote at the planning committee meeting. On 20 February 2013 the committee resolved to grant permission by 14 votes in favour to 12 votes against, the grant being subject to conditions that would be considered at its next meeting.
The Defendant granted planning permission, subject to detailed conditions that had been formulated in the meantime, on 12 July 2013.
Various pre-action letters had been exchanged prior to the grant of planning permission (see further below) and on 14 August 2013 the Claimant, one of a number of local residents opposed to the project, issued a claim form seeking an order quashing the grant of permission.
Lindblom J granted permission to apply for judicial review on 4 November 2013.
The substantive (well attended) hearing took place in Wrexham on 30 April 2014.
The broad focus of the challenge is upon (i) the alleged need for an Environmental Impact Assessment ('EIA') which, in the circumstances to which I will refer in more detail, was not obtained and (ii) the suggestion that several members of the planning committee demonstrably disregarded the "compelling landscape case" against the proposal and preferred an approach that took into account the personal requirements and interests of the Interested Parties and some perceived "financial benefit" to the local community. In that latter regard it is, accordingly, suggested that immaterial considerations were taken into account in the determination of the application. The first ground also embraces a challenge (or proposed challenge) to the reasons given for the decision not to obtain an EIA.
Those challenges are refuted by the Defendant and by the Interested Parties.
Detailed background
The general nature of the landscape in which the two turbines would be situated will be apparent from the short summary given in paragraphs 1 and 2 above. In terms of the various national and local designations in planning terms, the application site 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 4 km 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 Area of Outstanding Natural Beauty ('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.
As will be obvious from that synopsis, concerns about the impact of the proposed development on the local landscape have figured largely in the opposition to the proposals. However, as will become apparent, this proposed development is one of a number of actual or proposed "wind farm" developments in the region and concern has also been expressed that its impact should be seen in that wider context also and that its "cumulative" effect should be assessed. It appears that general concerns about development in the area have led to the formation of a local action group called 'STEMM' which is an acronym for 'Stop The Exploitation of Mynydd Mynyllod' of which the Claimant is a member.
The agent for the Interested Parties had engaged in preliminary discussions with the Defendant in early 2012. As a result, Mrs Denise Shaw, a Planning Officer (Renewable Energy Schemes), visited the site on 15 February 2012 and wrote to the agent with information about the likely planning considerations on 20 February 2012. The letter was, of course, designed merely to be of assistance and was expressly said to be "without prejudice and … in no way guarantees that planning permission will be granted or refused." The letter drew attention to the possible need for an EIA. It referred to "Schedule 2 projects" which was a reference to Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ('the Regulations'). I will refer to Schedule 2 developments more fully later, but one potential "Schedule 2 development" is one involving "installations for the harnessing of wind power for energy production" where "the hub height of any turbine … exceeds 15 metres": Schedule 2, paragraph 3(i), subparagraph (ii). The letter said that in order to confirm whether an EIA was required a "screening opinion" could be obtained from the Defendant.
I will return to the more detailed parameters within which a screening opinion may be obtained, and the considerations that apply to the process, in due course. However, to complete this part of the chronology, prior to making the application for planning permission, the agent for the Interested Parties, as suggested by Mrs Shaw, sought a screening opinion from the Defendant by letter dated 23 February 2012. It contained the requisite details of the proposal and contended for the position that an EIA was not required. The principal grounds for that contention were as follows:
• The development is not classified as a wind farm development, as only one turbine is proposed;
• the development will not be of more than local importance as only two 50kW 36.4m to hub turbines are proposed. The scale and nature of this proposal is not considered to have more wide-ranging effects;
• the proposal does not present unusually complex or potentially hazardous environmental effects;
• the proposal is not for 5 or more turbines; and
• the proposal is not for the generation of more than 5MW of energy.
The first of those considerations was, of course, inaccurately stated because two turbines were proposed. The essential suggestion, however, was that this was a small-scale, local development with no "wide-ranging effects".
At all events, on 2 March 2012 Mrs Shaw e-mailed the Countryside Council for Wales ('CCW') inviting its view on the need for an EIA. Its response was dated 15 March 2012 and 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 …."
It then dealt with "protected sites", saying that the proposal was unlikely to affect any such sites, and then in respect of "Landscape" it said as follows:
"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...
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