Anita Colman v Secretary of State for Communities and Local Government (First Defendant) North Devon District Council (Second Defendant) Rwe Npower Renewables Ltd (Third Defendant)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Kenneth Parker
Judgment Date09 May 2013
Neutral Citation[2013] EWHC 1138 (Admin)
Docket NumberCase No: CO/12831/2012

[2013] EWHC 1138 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Bristol Civil Justice Centre

2 Redcliffe Street

Bristol BS1 6GR

Before:

Mr Justice Kenneth Parker

Case No: CO/12831/2012

Between:
Anita Colman
Claimant
and
Secretary of State for Communities and Local Government
First Defendant

and

North Devon District Council
Second Defendant

and

Rwe Npower Renewables Limited
Third Defendant

David Cocks QC and Zack Simons (instructed by Richard Buxton) for the Claimant

Richard Honey (instructed by The Treasury Solicitor) for the First Defendant

John Litton QC (instructed by Burges Salmon) for the Third Defendant

Hearing dates: 19 April 2013

Mr Justice Kenneth Parker

Introduction

1

This is a claim under section 288 of the Town and Country Planning Act 1990. The Claimant, Anita Colman, seeks the quashing of the decision of the Inspector, Mr R W N Grantham BSc(Hons) MRSC MCIWEM, appointed by the Secretary of State for Communities and Local Government, the First Defendant, contained in a decision dated 22 October 2012. The Inspector held an inquiry over 15 days from June to September 2012 and undertook both accompanied and unaccompanied site visits.

2

The Inspector granted planning permission for the construction of nine wind turbines of 103m in height to blade tip on land at Batsworthy Cross, Knowstone, North Devon. Planning permission had been refused by the North Devon District Council, the Second Defendant, in July 2011.

The National Planning Policy Framework (March 2012) ("the NPPF")

3

Prior to the public inquiry, but after the Council had considered and refused the Applications, the Secretary of State published the National Planning Policy Framework (March 2012) ("the NPPF") setting out the Government's planning policies for England and guidance as to how it expects those policies to be applied. However, paragraph 2 of the Introduction to the NPPF makes clear that —

"Planning law requires that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise. The National Policy Framework must be taken into account in the preparation of local and neighbourhood plans, and is a material consideration in planning decisions… " (Footnotes omitted)

4

Paragraphs 11, 12 and 196 of the NPPF reiterate the approach required by s. 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"), namely that a proposed development which is in accordance with an up-to-date Local Plan should be approved and proposed development that conflicts should be refused "unless other material considerations indicate otherwise". Paragraph 13 identifies the guidance in the NPPF as a material consideration to be taken into account in determining applications for development.

5

Paragraph 14 of the NPPF refers to a presumption in favour of "sustainable development" as a central feature of the NPPF in relation to both plan-making and decision-taking. In the context of decision-taking, the presumption in favour of sustainable development is given expression in two ways. The first is by approving development proposals that accord with the development plan. The second is to grant permission where the development plan is absent, silent or where relevant policies are "out-of-date" unless any adverse impacts of granting permission for the proposed development "would significantly and demonstrably outweigh the benefits, when assessed against the policies in the [NPPF] taken as a whole". Paragraph 211 in Annex 1 to the NPPF makes clear that for the purposes of decision-taking, the policies in the Local Plan should not be considered out-of-date simply because they were adopted prior to the publication of the NPPF.

6

Transitional provisions in Annex 1 to the NPPF permit decision-takers, for 12 months from the date of publication of the NPPF, to continue to give full weight to relevant policies in development plan documents adopted since, and in accordance with, the 2004 Act even if there is a limited degree of conflict between those development plan policies and the NPPF (see paragraph 214). However, where relevant policies are contained in development plan documents which have not been adopted in accordance with the 2004 Act (or the policies have been adopted under the 2004 Act but there is more than a limited degree of conflict with the NPPF) the weight to be given to them depends on the consistency of those policies with the NPPF, with greater weight being given to development plan policies which are consistent with the NPPF's policies (see paragraph 215).

7

The policies relevant to determination of the appeals considered by the Inspector were not in development plan documents adopted in accordance with the 2004 Act. Any inconsistency between those policies and the NPPF would render them out of date and cause the approach set out in paragraph 14 of the NPPF to be engaged. In that case the decision-taker would be required to consider whether any adverse impacts of granting planning permission for the development would significantly and demonstrably outweigh the benefits when assessed against the policies in the NPPF taken as a whole.

The Inspector's Decision

8

At paragraph 19, the Inspector set out the planning policy context for the determination of the appeals noting that (a) the NPPF was a material consideration which could be given considerable weight if the relevant policies in the development plan were not adopted in accordance with the 2004 Act; and (b) the weight to be given to the NPPF would increase according to the degree of inconsistency between the relevant development plan policies and the NPPF (see paragraphs 214 and 215 of Annex 1 to the NPPF).

9

At paragraph 20, the Inspector identified the development plan as including RPG10 and the saved policies of the Local Plan (LP) and the Devon Structure Plan ( SP) but noted that the development plan policies were not adopted in accordance with the 2004 Act. The Inspector stated that it was therefore necessary to consider the consistency of the individual relevant development plan policies with the policies of the NPPF for the purpose of deciding how much weight to give the development plan policies and those in the NPPF in his assessment of the merits of the development.

10

At paragraph 21, the Inspector noted that the NPPF replaced much of the previously published national planning policy guidance but that certain of the companion guides to those policy statements remained extant. At paragraph 22, he referred to the approach to be adopted in the assessment of on-shore wind farms in the context of the extant Overarching National Policy Statements for Energy (EN-1) and for Renewable Energy Infrastructure (EN-3).

11

At paragraph 23 the Inspector referred to the Government's commitment to reducing greenhouse gas emissions and increasing energy supply from renewable sources, including from on-shore wind farms. The Inspector also mentioned that not all renewable energy developments are sustainable and that the impacts of such developments (e.g. on the landscape) have to be taken into account.

12

At paragraph 26, the Inspector identified the main issues in relation to the wind farm as being the impact of the proposed development on the landscape, cultural heritage, living conditions of local residents, bats and highway safety and whether any impacts would be outweighed by the benefits of the scheme.

13

At paragraphs 30 — 214 the Inspector assessed the impacts of the proposed development against the identified issues in the context of the relevant development plan policies and arrived at his conclusions in relation to each of the relevant issues.

14

In addition to the impacts identified above, the Inspector considered the benefits of the scheme at paragraphs 215 — 229 and concluded that —

i) On-shore wind was essential to meeting the UK's need for energy security and reducing greenhouse emissions (paragraph 219).

ii) The savings in CO2 emissions were likely to be substantial and valuable over the lifetime of the scheme (25 years) (paragraph 227).

iii) There would be economic benefits from employment during construction and operation of the wind farm with possible expenditure of more than £1 million to the local economy (paragraph 228).

15

At paragraphs 230 — 236, the Inspector weighed the harmful impacts against the benefits of the proposed development and concluded as follows —

"234. Some employment would be generated by the development, but this would be mostly during the construction phase. However, the benefits of reduced greenhouse gas emissions would be long lasting and the need for new renewable electricity generating projects is urgent. Whilst the CO2 savings which this wind farm would achieve would not be as great as anticipated, they would nevertheless be valuable and, as such, would outweigh the limited harm which the scheme would cause.

235. Development plan policies which seek to promote renewable energy schemes provide no direct support for these proposals. This is because they only allow for the benefits of the scheme to be balanced against the harm, if the energy generated would contribute towards meeting the county's 2010 target of producing 151MW of electricity from renewable sources. That target no longer applies and the development plan's approach is outdated when considered against the Framework's presumption in favour of sustainable development.

236. This is not a case where the harm caused would significantly and demonstrably outweigh the benefits. Indeed, subject to putting suitable controls in place, the...

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