Case Studies Involving Wind Power Projects
| Author | William Webster |
| Pages | 103-204 |
Chapter 8
Case Studies Involving Wind Power Projects
CASE STUDY I
Permission Granted for Four Wind Turbines near to an Area of Outstanding Natural Beauty
Bayliss v Secretary of State for Communities and Local Government [2013] EWHC 1612 (Admin) (13 June 2013)
1. The applicant (B) applied to quash a decision of the SoS, by his planning inspector, to grant planning permission to the third respondent (P) for the construction of wind turbines. P had sought planning permission to construct four wind turbines next to an AONB. The LPA refused P’s application. The inspector concluded that the development would be visible from the AONB and would cause some limited harm to it but overall the benefits of the development outweighed the harm. B submitted that: (a) the inspector should have given greater weight to the harm caused to the AONB; and (b) the benefits of the turbines were not as great as P had suggested and the inspector’s comment that the area had ‘the best wind resource in Dorset’ was inaccurate.
2. The application to quash was refused.
3. Planning decision-makers had to have regard to the provisions of the development plan and proposed developments had to be in accordance with the plan looked at as a whole, rather than with every policy in the plan. That presumption was rebuttable by ‘other material considerations’ under section 70(2) of the TCPA 1990. ‘Material considerations’ included statements of central government policy and local guidance but the weight to be given to such considerations was a matter of planning judgment for the decision-maker. In exercising any function affecting an AONB, the SoS, and any inspector acting on
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his behalf, was required by section 85 of the Countryside and Rights of Way Act 2000 to have regard to the purpose of conserving and enhancing the AONB. The policy guidance documents made it clear that great weight was to be given to conserving the landscape. However, the inspector’s consideration of the harm to the AONB had to be seen in its proper context. It was common ground that onshore wind was an important element in meeting the government’s target for generating electricity from renewable sources. The NPPF, looked at as a whole, generally favoured renewable energy developments, whilst requiring the benefits of such developments to be balanced against possible harm to the environment. It was clear that the inspector had well in mind the special nature of the AONB and harm the development might have upon it, as required by the policy guidance. His consideration of that harm was particular: he considered that the development would cause limited harm to a limited part of the AONB. He dealt with the issue adequately and properly and did not consider the harm to the AONB to be a powerful factor in all the circumstances of the case.
4. The inspector had to balance the benefits of the development against the factors that weighed against the proposal. On any view the development would make a meaningful contribution to renewable electricity and if there were other areas of Dorset where the wind was such that developments there might make bigger contributions that was irrelevant to the inspector’s planning determination. He was not making a relative assessment. Further, whether the capacity of the development was 25%, as put forward by P, or 19%, as put forward by the local authority, the inspector clearly considered that benefits outweighed the harm. Even at a rounded-up figure of 20% the benefits were substantial, in the light of the general policy encouraging renewable energy.
Comment
5. This was a small wind farm development comprising only four turbines which were going to be visible from an AONB. In the exercise of his planning judgment the inspector took the view that although there would be some limited harm to the local landscape, overall the benefits arising from the contribution to renewable energy outweighed that harm. This was a material consideration. The case makes it plain: (a) that the planning balance is the preserve of the inspector with which the court is unlikely to interfere; and (b) that a consideration of suitable alternative locations for a proposed renewable energy development will usually be an irrelevant factor in the planning balance.
CASE STUDY II
Wind Farm Close to Listed Buildings
Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council [2014] EWCA Civ 137 (‘Barnwell Manor’)
(18 February 2014)
1. The LPA refused the developer’s application for planning permission to build a four-turbine wind farm on land in a conservation area which contained a number of listed buildings including a collection of Grade I listed buildings and gardens. The developer appealed to the SoS for Communities and Local Government, who appointed a planning inspector to determine the appeal. By section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 the inspector was under a duty when considering whether to grant planning permission to ‘have special regard to the desirability of preserving’ a listed building or its setting. Listed buildings came within the definition of ‘designated heritage assets’ in the government’s Planning Policy Statement 5 and practice guide. The inspector concluded that while the wind farm would fall within and affect the settings of a wide range of heritage assets, on balance the significant benefits of the proposed development in terms of the renewable energy which it would produce outweighed the less than substantial harm which it would cause to the setting of such designated heritage assets and the wider landscape, and accordingly granted planning permission. One of the reasons given for the inspector’s conclusion that the harm would be less than substantial was that ‘any reasonable observer’ would know that the development was a modern addition to the landscape, separate from the planned historic landscape or building he was within or considering or interpreting. The judge granted an application by, among others, the LPA under section 288 of the TCPA 1990 to quash the inspector’s decision on the ground that it was flawed because, among other things, he had failed to give effect to the duty under section 66(1) by not giving sufficient weight to the desirability of preserving the setting of the listed buildings. The developer appealed.
2. In dismissing the appeal the Court of Appeal found that section 66(1) required the decision-maker to give ‘the desirability of preserving the building or its setting’ not merely careful consideration for the purpose of deciding whether there would be some harm, but considerable importance and weight when balancing the advantages of the proposed development against any such harm. The general duty applied with particular force if harm would be caused to the setting of a Grade I listed building, which was a designated heritage asset of the highest significance. If the harm to the setting of the Grade I listed building would
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be less than substantial, the strength of the presumption against the grant of planning permission would be lessened but it would not be entirely removed. Since the inspector had not given considerable importance and weight to the desirability of preserving the setting of the listed buildings when carrying out the balancing exercise, he had not given proper effect to the section 66(1) duty with the result, as the court found, that the judge had been right to conclude that the inspector’s decision was flawed on that basis.
Comment
3. Assistance is derived from the helpful article ‘How to Avoid Significant Pitfalls in Heritage’ by Richard Ground QC and Emma Dring at [2019] JPL (Issue 1), pages 3–9. The article notes that it was held in Barnwell Manor that if a decision-maker concluded that a proposal will cause harm to a listed building or conservation area, that harm must be given ‘considerable importance and weight’. It gives rise to a ‘strong presumption’ that planning permission should not be granted ([22]–[23] of the judgment). Since Barnwell Manor several decisions were quashed on the basis that decision-makers had failed to demonstrate that they had given such considerable importance and weight to the effect of the development on the settings of heritage assets.
4. The decision in Barnwell Manor involved an appeal against a decision quashing an inspector’s grant of planning permission to build a four-turbine wind farm on land in a conservation area which contained a number of listed buildings, including a collection of Grade I listed buildings and gardens. It was common ground between the parties at the inquiry that the group of designated heritage assets at Lyveden New Bield was probably the finest surviving example of an Elizabethan garden, and that as a group the heritage asset at Lyveden New Bield had a cultural value of national, if not international significance. The inspector had found that:
this group of designated heritage assets has archaeological, architectural, artistic and historic significance of the highest magnitude.
5. The inspector also found that the wind turbines:
would be visible from all around the site, to varying degrees, because of the presence of trees. Their visible presence would have a clear influence on their surroundings in which the heritage assets are experienced and as such they would fall within, and affect, the setting of the group.
6. Despite these findings it was the planning judgment of the inspector, in allowing the developers’ appeal, that although the proposal would not accord with the development plan, its benefits outweighed its harm to the setting of the
heritage assets. The High Court quashed the decision of the inspector in finding that the inspector had not complied with his duty under section 66(1), and the developers’ appeal was duly dismissed by the Court of Appeal, which ruled that the inspector had not...
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