Derbyshire Dales DC and other v Secretary of State for Communities and Local Government and other

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Carnwath
Judgment Date17 Jul 2009
Neutral Citation[2009] EWHC 1729 (Admin)
Docket NumberCase No: CO/10280/2008

[2009] EWHC 1729 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Carnwath

Case No: CO/10280/2008

Between
(1) Derbyshire Dales District Council
(2) Peak District National Park Authority
Claimants
and
(1) Secretary Of State For Communities And Local Government
(2) Carsington Wind Energy Limit
Defendants

Anthony Crean QC (instructed by Head of Law, Peak District National Park Authority) for the Claimant

David Forsdick (instructed by Treasury Solicitors) for the 1st Defendant

Jeremy Pike (instructed by Bond Pearce LLP) for the 2 nd Defendant

Hearing date: Monday 29th June, 2009

Lord Justice Carnwath

Lord Justice Carnwath :

Background

1

By a planning application, dated 24 January 2007, the Second Defendant (“Carsington”) applied to the First Claimant (“the Council”) for planning permission for development described as —

“Erection of 4 no. wind turbine generators, substation, access tracks and ancillary equipment”

2

By a notice dated 20 July 2007 the Council, as local planning authority, refused the Planning Application. Carsington appealed and an Inspector (Mr Robin Brooks BA, MRTPI) was appointed to determine the appeal on behalf of the Secretary of State. In July 2008 the inspector held a public local inquiry and undertook site visits. By a decision-letter dated 27 th September 2008, he allowed the appeal and granted planning permission subject to conditions. The Council, supported by the Peak District National Park Authority, challenges that decision under section 288 of the 1990 Act.

3

The Decision Letter identified five main issues that the inspector had to resolve (DL24):

“a. The impact of the proposal on the character and appearance of the surrounding landscape including the Peak National Park and its setting; and, in the latter respect whether approval would unacceptably harm the status of the National Park and undermine the objectives of its designation;”

b. The impact of the proposal on the settings of the Carsington and Hopton, and Brassington Conservation Areas and whether approval would preserve or enhance the character or appearance of those Conservation Areas;

c. The effects of the proposal upon enjoyment of the countryside by members of the public, including those using the High Peak Trail, the Limestone Way and local paths, and those visiting Carsington Water; and whether approval would have significant adverse effects on the contribution made by tourism and recreation to the local economy;

d. Whether as a matter of law and policy, there is a requirement to consider alternative sites for the proposal; and if so, whether that process has been adequately pursued and alternatives have been convincingly discounted; in all cases bearing in mind the aims of local and national planning policies;

e. The contribution that the proposals would make to achieving regional and national targets for renewable energy generation, bearing in mind extant and emerging national planning policy; and the extent to which any such contribution should be weighed against any adverse impacts in terms of the other issues.”

4

The Inspector's treatment of these issues is meticulous and impressively comprehensive. The grounds of challenge are limited to his treatment of issues (iv) and (v). I shall refer to the issues respectively as “the alternative sites issue”, and “the strategic targets issue”. It is unnecessary therefore to review his reasoning in detail. It is sufficient to refer to the findings relevant to those issues.

5

There is no criticism of the Inspector's summary of the policy context in which the application had to be considered. He noted the statutory duty under sections 61 and 62 of the Environment Act 1995 “to have regard to the National Park purposes” in exercising functions “in relation to, or so as to affect, land in a National Park”; and corresponding policies in the Regional Spatial Strategy (RSS) and local plan, which (in his words):

“… reflect the importance of safeguarding both the National Park and its setting. And in the case of the Peak Park protection of the setting is arguably of particular importance given the way in which it is surrounded by industrial towns and cities of no great distance from its boundary, and subject to particular development pressures….” (DL33)

6

He found that there would be some harm to the National Park and its setting viewed from the northwest (DL59), and a “significant” but “limited” impact on the setting of the Carsington and Hopton Conservation Area (DL 64). However any such harm “must be weighed in the balance” against other aspects or benefits of the proposal” (DL59, 68).

7

He rejected the argument that it was necessary to consider possible alternative sites. Having reviewed the authorities on the relevance of alternative sites, and the detailed submissions of counsel, he said:

“84…. on the evidence I am not persuaded that the appeal proposal is one of the narrow range of cases (as agreed by both main parties) where alternatives should be considered as a matter of law; nor that there is any requirement in relevant planning policy to do so. In any case I consider that the nature of any adverse impacts that the proposal would have is such that a decision can properly be made on the merits of the case, balancing any such impacts against other considerations. Accordingly it is unnecessary to consider further the second part of the issue as framed, namely whether the process of considering alternatives has been adequately pursued and alternatives have been convincingly discounted.”

8

On the fifth issue, he rejected the Council's argument that renewable energy targets were immaterial to the determination of an individual planning application, and found instead that —

“…that the appeal proposal would make a valuable contribution to achieving regional and national targets for renewable energy generation, bearing in mind extant and emerging national planning policy” (DL94).

9

His overall conclusion was:

“120. As I have noted above, the appeal proposal conflicts with development plan policy in some respects, relating to impact on the setting of the National Park, on landscape elsewhere and on the setting of two Conservation Areas. However, as I have also noted, those conflicts are limited in nature and extent and in my view they are outweighed by the benefits of the renewable energy that would be supplied. That contribution would be modest in relation to targets set in extant and emerging regional policy, and Government targets and expectations, but it would be by no means trivial; and it is only by a succession of such individual proposals, of varying scales, that targets can be achieved. Although the RSS target for onshore wind generation is largely achieved, it is an indicative measure and only limited progress has been made towards overall regional targets. Targets in the emerging Regional Plan are even more challenging. On balance I have come to the conclusion that the considerations in favour of the development outweigh those contrary to it and that planning permission should be granted.”

10

Against that background I turn to the two grounds of challenge.

The alternative sites issue

The argument

11

As I have said, the Inspector rejected the argument that it was necessary to consider possible alternative sites.

12

Mr Crean, for the authorities, points to the Inspector's clear finding that the proposal conflicted in some respects with the development plan. He submits that the Inspector made a “fundamental error” in holding that it was not necessary as a matter of law or policy to consider whether the need on which Carsington relied could be met on some other site which caused less harm to development plan policy.

13

By way of authority, he relied principally on the judgment of Sullivan J in R(Bovale Ltd) v Secretary of State [2008] EWHC 2538 (Admin), handed down a few weeks after the Inspector's decision. I shall need to look at that judgment in more detail. However, before doing so it is necessary to set it in context of the earlier cases on this issue.

Alternative sites – the law

14

The cases reveal a long-running debate among planning lawyers (going back at least to Rhodes v Minister of Housing and Local Government [1963] 1 All ER 300) as to the relevance of alternative sites to the consideration of individual planning applications. There have been numerous examples of attempts to overturn decisions on the grounds that the decision-maker has refused permission on one site by reference to the merits of another; or alternatively has granted permission without regard to the merits of another. There has also been some debate as to how far, if alternative sites are deemed relevant at all, it is necessary for those relying on the argument to identify specific alternatives.

15

It is not surprising that such challenges have generally failed. Common sense suggests that alternatives may or may not be relevant depending on the nature and circumstances of the project, including its public importance and the degree of the planning objections to any proposed site. The evaluation of such factors will normally be a matter of planning judgment for the decision-maker, involving no issue of law.

16

A useful starting-point is the judgment of Simon Brown J (as he then was) in Trust House Forte Ltd v Secretary of State (1986) 53 P&CR 293, where he sought to summarise the effect of the cases:

“There has been a growing body of case law upon the question when it is necessary or at least permissible to have regard to the possibility of meeting a...

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