Benjamin Cameron Howell v Secretary of State for Communities and Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Sir David Keene,Lord Justice Briggs,Lord Justice Richards |
| Judgment Date | 19 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1189 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 November 2015 |
| Docket Number | Case No: C1/2014/4276 |
[2015] EWCA Civ 1189
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mr Justice Cranston
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Briggs
and
Sir David Keene
Case No: C1/2014/4276
Richard Harwood QC (instructed by Richard Buxton Environmental and Public Law) for the Appellant
Richard Honey (instructed by Government Legal Department) for the First Respondent
The Second Respondent did not appear and was not represented
Jeremy Pike (instructed by Mike Stamford on a Direct Access Basis) for the Third Respondent
Hearing date: 22 October 2015
Introduction
This appeal raises some interesting questions of planning law, particularly in respect of the interpretation of planning policy documents and of the statutory duty under section 17A of the Norfolk and Suffolk Broads Act 1988 ("the 1988 Act"). That section provides that:
"(1) In exercising or performing any function in relation to, or so as to affect, land in the Broads, a relevant authority shall have regard to the purposes of —
(a) conserving and enhancing the natural beauty of the Broads;
(b) promoting the enjoyment of the Broads by the public; and
(c) …"
Subsection (2) makes it clear that both the Secretary of State and local planning authorities are subject to that duty as a "relevant authority".
It was the 1988 Act which set up the Broads Authority to manage the area defined as the Broads for certain specified purposes, including those purposes set out in section 17A(1). The Broads Authority is required by section 2(4) of the 1988 Act to have regard to "the national importance of the Broads as an area of natural beauty". What is meant by "the Broads" is defined by a deposited map, which shows the designated area.
This appeal concerns a site which is not in the Broads as such, but which is located about 750 to 800 metres from the southern boundary of that part of the Broads formed by the Waveney valley and immediately adjoining land. That southern boundary is formed by a class B road.
Stamford Renewables Limited ("the developer") sought planning permission for the erection of a single wind turbine of up to 2MW rated output capacity, together with a 60m high wind mast and ancillary infrastructure. The turbine would have a hub height of 80m. Permission was refused by the local planning authority but granted on appeal, after a six day inquiry, by an inspector appointed by the Secretary of State.
The present appellant, Mr Howell, is with his wife the owner and occupier of Crake Hall, which is 500 metres from, and the nearest dwelling to, the proposed turbine. Crake Hall too is outside the designated area of the Broads. Mr Howell is a supporter of a local action group, HALT, which opposed the proposed development, and he participated in the public inquiry. He challenged the inspector's grant of planning permission by bringing a claim under section 288 of the Town and Country Planning Act 1990 on the basis that the decision was unlawful. His application was refused by Cranston J in a judgment dated 7 November 2014: [2014] EWHC 3627 (Admin). It is from that judgment that Mr Howell now appeals.
The inspector's decision
Not all the matters raised before the judge below are now pursued on appeal, and it is unnecessary to set out the facts in as much detail as did Cranston J. His judgment forms a valuable account of the detailed facts, and that will enable me to take them more briefly.
The issues now raised relate to the inspector's approach to the statutory duty under section 17A of the 1988 Act; his approach to the interpretation of development plan policies and national policies; his assessment of the benefits of the proposed wind turbine; and the way in which he dealt with the possible noise impact of the turbine. He had concluded on these issues that the proposed turbine would not harm the natural beauty of the designated Broads landscape or conflict with the purposes of designation, and that, although there would be certain adverse effects upon the landscape more generally, they were not significant in policy terms. He found that there were significant benefits in the increase in the amount of renewable energy which would result from the turbine. The predicted noise level at Crake Hall would reach but not exceed the recommended limits for a noise-sensitive property. The inspector, when granting permission, imposed a condition agreed between the developer and the local planning authority, a condition containing noise limits which could, said the inspector, be enforced by the authority.
Subject to that and other conditions, the inspector allowed the appeal and granted planning permission.
The 1988 Act issue
It is not contended by the appellant that the inspector failed to have regard to the statutory purposes under section 17A of the 1988 Act, set out in the opening paragraph of this judgment. That argument could never succeed, since the inspector specifically refers to that duty in his decision, especially at paragraphs 80 and 81. He concluded in express terms that the proposal would not fail to conserve the natural beauty of the Broads.
The appellant's case is that such a conclusion was not open to the inspector, given the other findings that he had made. At this point, it becomes necessary to set out in more detail what those findings were.
Both the Broads Authority and Waveney District Council had done Landscape Character Assessments for their respective areas. Such assessments are recommended by Natural England, and make use of guidelines produced by the Landscape Institute and the Institute for Environmental Assessment. The appeal site itself falls within the Council's Area H4, "Mid-Waveney Tributary Valley farmland", described as having a rolling landform, with arable cultivation, patches of woodland and field boundary vegetation, small settlements, and generally rural and tranquil. The northern boundary of this area H4 abuts the southern boundary of the Broads designated area along much of its length.
The designated area of the Broads is unsurprisingly very irregular in shape. That part of it which could potentially be affected by the proposed turbine is essentially the valley of the River Waveney and runs generally east-west following the course of the river. The inspector referred to the valley as providing a sense of enclosure. The Landscape Character Assessment done by the Broads Authority divided the land for which it was responsible into a number of areas, each given a Landscape Character Assessment number (" LCA"). The southernmost part of the designated area closest to the appeal site was described as LCA 0; somewhat further away are areas LCA 2 and LCA 3.
The inspector described LCA 0 at paragraph 43 of his decision letter:
"The immediately adjoining land to the north of H4 is gently sloping arable land along the valley sides and is that land described as Area LCA0 within the Broads LCA (2006) (CD5.12) (updated in 2012). Paragraph 5.47 of the Guidelines to Landscape and Visual Impact Assessment 3 rd Ed. (GLVIA3) confirms that boundaries of nationally designated landscapes are often defined to follow convenient physical features (in this case the B road) and as a result there may be land inside the boundary that does not meet the designation criteria. That is relevant when assessing specific development proposals and their effects. In this case the Broads LCA concluded that the LCA0 land is not of Broads character and did not further assess it but referred instead to the character assessment of similar adjoining landscape in the Waveney LCA; in this case that is the H4 area."
The H4 area is, of course, not land designated as part of the Broads. The inspector later noted that a landscape sensitivity study carried out for the Broads Authority and the Council effectively treated the LCA 0 land as being of similar character to the H4 area: paragraph 49.
Of areas LCA 2 and LCA 3, the inspector said this:
"The Waveney valley floor floodplain at below about 3m AOD does have a distinctive Broads character as upper river valley marshlands. Those areas of Broads character closest to the appeal site are defined as LCA2 (which includes the Geldeston and Shipmeadow marshes and the valley floor to the west) and LCA3 (which includes the Barsham and Gillingham and Marhes to the north west of Beccles). The proposed turbine would be about 1km from the nearest edge of LCA2. It would be about 1.2km from the nearest edge of LCA3."
At paragraph 47, he made some further relevant comments:
"The H4 land forms a backdrop to views out of the valley from LCA2 or LCA3. In those views the frequent patches of woodland within H4 merge to create the appearance of an almost continually wooded valley crest. The appeal site is located on high ground at the southern edge of the H4 area beyond and to the south of that apparently wooded crest. Whereas the existing land around the appeal site would consequently not be seen from the main valley floor, the turbine's height would make it visible above the trees. It would be taller than the nearby pylons that already similarly break the skyline."
The inspector made certain findings about the effect that the turbine would have on views into and out of the designated area. Of views into the...
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