Daniel Gerber v Wiltshire Council Steve Rademaker (1st Interested Party) Norrington Solar Farm Ltd (2nd Interested Party) Terraform Power, Inc. (3rd Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 05 March 2015 |
| Neutral Citation | [2015] EWHC 524 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3930/2014 |
| Date | 05 March 2015 |
[2015] EWHC 524 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dove
Case No: CO/3930/2014
Jenny Wigley (instructed by Richard Buxton Solicitors) for the Claimant
Jonathan Wills (instructed by Wiltshire Council) for the Defendant and 2nd and 3rd Interested Parties
Hearing dates: 23 rd & 26 th January 2015
Introduction
This claim relates to the installation of photovoltaic arrays mounted on frames covering 22.1ha of land at Broughton Gifford, Wiltshire. The claimant lives at a property known as Gifford Hall which is a Grade II* listed building. Planning permission for the installation was obtained by the first interested party. The first interested party did not appear and was unrepresented in the proceedings. The second and third interested parties are presently involved and interested in the operation of the development.
The claimant contends that he first became aware of the development when it was being constructed. He had not objected to it nor had he participated in the decision making process leading to the grant of planning permission by the defendant. Having subsequently investigated the grant of consent he now challenges the legality of the planning permission on a variety of grounds. Issues in this case arise both as to the legitimacy of those grounds and also as to whether in any event, even if they are made out, the decision should be quashed bearing in mind the delays involved in bringing these proceedings and also the fact that the development is now built.
I propose to set out the facts leading up to the issuing of these proceedings at the outset. I shall then deal with the various grounds of legal challenge raised, addressing the relevant legal principles in the context of each of those grounds. I shall then finally turn to the question of discretion and whether or not the permission should be quashed. In the course of considering those issues subsequently there are further elements of the factual circumstances which I shall set out at that stage.
The Facts Leading Up To the Inception of Proceedings
On 12 th September 2012, following a request, the defendant undertook a screening of a proposed solar farm development on what was to become the application site for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. The officer conducting the screening opinion concluded that it fell within Schedule 2 of the 2011 regulations as the area of the site exceeded the threshold for industrial installations for the production of electricity. The reasoning of the screening opinion and its conclusion that no environmental impact assessment was required was as follows:
"Location of development
The site which is agricultural land, is not in an environmentally sensitive geographical area as defined by the Regulations. It is relatively flat agricultural land in open countryside to the north of Broughton Gifford. Even though the solar panels would be situated in an area where there are several settlements and isolated farmhouses, it is not a densely populated area. Although it is noted that the site is partially covered by an archaeological record (SMR), subject to appropriate reports this can be adequately assessed during the course of any planning application. Public Rights of Way run through the application site, but subject to appropriate information any impact can be addressed during the course of any planning application.
There are no other known historical, cultural or archaeological designations likely to be harmed by the proposals, although it is noted that the Cotswolds Area of Outstanding Natural Beauty lies 3.7 kilometres to the north-west of the site, to the south-west of the site is the Broughton Gifford Conservation Area and a listed building and to the east is a County Wildlife Site. Again subject to appropriate reports these can be adequately assessed during the course of any planning application.
The Characteristics of the Potential Impact
The potential impact and material environmental issues in the proposal, such as the landscape character, heritage assets, archaeology, ecology and health and safety can be adequately dealt with in the normal processing of a planning application which will need to be accompanied by the usual statements, reports and assessments including in this instance but not limited to ecology, archaeology, flood risk and landscape that would be subject of consultation with the necessary bodies."
As a result of this screening opinion no environmental impact assessment was required.
On 9 th November 2012, following pre-application consultation with officers of the council and pre-application publicity by way of public exhibitions and advertisements in the Wiltshire Times, the first interested party made an application to the defendant for planning permission for:
"The installation of solar photovoltaic (PV) arrays and frames totalling approximately 22ha including associated cable trenches and electrical connection buildings. There is no change to the agricultural land use."
The application, as foreshadowed by the screening opinion, was accompanied by reports on various matters. In particular, so far as relevant to this challenge, there was a Heritage Statement dated November 2012. That statement identified, amongst other heritage assets, the Broughton Gifford Conservation Area and Gifford Hall. The heritage statement set out to assess 'the type, magnitude and significance of any potential direct and indirect changes' to the Conservation Area and listed buildings. In relation to the Broughton Gifford Conservation Area it relied upon photographic plates 8 and 9. Unfortunately originally within the papers there was no photo location plan so as to show from where these views had been obtained, but during the course of the hearing witnesses both for the claimant and for the defendant undertook their own assessment and established, broadly speaking, where these photographs were taken from.
The view in plate 8 was taken from the site looking south towards the Conservation Area. Plate 9 was taken again from within the site looking to the south-west. Neither of these plates, nor indeed any of the other plates within the Heritage Statement were taken from any part of the appeal site looking directly towards Gifford Hall. The plates in the Heritage Statement were relied upon to found the conclusion in relation to listed buildings, including Gifford Halls, and the Conservation Area as follows:
"Views of the proposed development site from all of these buildings [including Gifford Hall] are obscured by mature trees, which are north of these properties and form the southern border of the proposed site. It is assessed from the in-field views (plates 8 and 9) that the installation of solar PV arrays would cause no change to views from, or the appreciation of the Conservation Area of, these Listed Buildings."
Further mention of Gifford Hall was provided in the heritage statement in connection with the Atworth Conservation Area as follows:
"The public footpath leading to Broughton Gifford from Atworth has views looking south- east c900 meters along the footpath, the private drive to Studley Farm rises above the footpath affording a view of the roof of Gifford Hall, yet none into the proposed solar farm fields as shown in plate 15."
Plate 15 is described as a view 'over the proposed site looking south- east from the private drive to Studley Farm above the footpath south- east of Atworth'. This view is in a south-easterly direction from beyond and across the western boundary of the site. Gifford Hall can be seen in the distance. The footpath which is referred to is a footpath which enters into and crosses the site. Having concluded that there would be no physical impact on either the Conservation Area or any listed buildings the heritage statement then concluded as follows:
"In terms of visual impact:
• Negligible adverse change to the view into the fields from just one non-listed private residential property within the adjacent Broughton Gifford Conservation Area;
• A potential moderately significant change to the view from the public footpath exiting the Broughton Gifford Conservation Area, with any adversity to the perception of a conservation Area to be mitigated through the planting and management of a hedge to screen the solar arrays;
• No changes to views from or of or settings or perceptions of any of the nearby Grade I, Grade II* and Grade II listed buildings in Broughton Gifford, Atworth Conservation Area or the Registered Park and Garden at Chalfield Manor
Overall it is considered that the national and local heritage assets identified and assessed would not suffer any significant adverse impacts (so long as the highlighted archaeological mitigation is implemented) which would have the potential to affect their protection in the future, nor their function within the landscape as tools to interpret the national and local historic and built environment."
The application was also accompanied by a Landscape Visual Impact Assessment (the 'LVIA'). That also examined the question of visual impact. Two viewpoints contained within the analysis of the LVIA are of note in the light of the conclusions of the Heritage Statement. The first of those, Viewpoint 1, is taken from...
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