East Northamptonshire District Council and Others v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE LANG |
| Judgment Date | 08 March 2013 |
| Neutral Citation | [2013] EWHC 473 (Admin) |
| Docket Number | Case No: CO/4231/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 March 2013 |
[2013] EWHC 473 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang Dbe
Case No: CO/4231/2012
Morag Ellis QC and Robin Green (instructed by Sharpe Pritchard) for the Claimants
David Hardy (Solicitor Advocate from Eversheds LLP) for the 2 nd Defendant
1 st Defendant was not in attendance and was unrepresented
The Claimants have applied under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") for an order quashing the decision of Mr P. Griffiths, an Inspector appointed by the First Defendant, dated 12 th March 2012, who held an Inquiry and allowed an appeal by the developer, the Second Defendant, against the decision of East Northamptonshire District Council and granted planning permission for a wind farm development on farmland in Sudborough, Northamptonshire.
Initially the proposed development comprised 5 wind turbine generators, sub-station, access road, 80 metre anemometer, underground cabling and temporary construction facilities. In the course of its appeal, the Inspector permitted the Second Defendant to remove from its proposal the wind turbine which was closest to Lyveden New Bield, arguably the most significant heritage asset affected. He then granted permission for the development with 4 wind turbines.
East Northamptonshire District Council refused the application, on 24 th January 2011, on the following grounds (among others):
"1. It is considered that the proposed development site is not suited to accommodating wind energy infrastructure, due to the significant immediate visual and landscape impacts at location of public access and recreation, through the introduction of 'dominant' additional features in the skyline and viewpoints, This is especially pertinent given the presence of cultural heritage features and the relative absence of any other existing modern structures. The proposal is therefore considered contrary to PPS1, objective 5, paragraphs 17, 18, 20, paragraphs 14 and 16 of PPS7, paragraphs 9 and 11 of PPS22, policies 26, 31 and 40 of the Regional Plan, policy 13(o) of the North Northants Core Spatial Strategy and policies EN8, EN9 and EN20 of the saved Local Plan.
2. It is considered that the proposed wind turbines will result in an unacceptable harm to the setting of Lyveden New Bield (Scheduled Monument, Grade 1 Listed Building, Grade 1 Registered Park and Garden) and to St Andrews Church Brigstock (Grade 1 Listed Building), and an insufficient assessment of the effects of the development on the setting of Drayton House (Grade 1 Listed Building) and its Grade 1 Registered Park and Garden. The proposal is therefore considered to conflict with the aims of historic environment planning policy and guidance expressed in PPS5, PPS22 (para 11), East Midlands Regional Plan (policies 26, 27, 31). North Northamptonshire Core Spatial Strategy (policy 13(o))."
On appeal, the Inspector identified the main issues, at paragraph 9 of the Appeal Decision, as:
"whether any benefits of the proposal are sufficient to outweigh any harm caused to the setting of heritage assets, the character and appearance of the surrounding landscape, the enjoyment of the area and the many rights of way within it, by walkers, cyclists and horse riders, ecology and other matters"
He concluded, at paragraphs 84 to 86, Appeal Decision:
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a) There would be no significant adverse impact on users of public rights of way, no appreciable devaluation of the visitor experience to the area and no harm in ecological terms, and some enhancement.
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b) The proposed development would harm the setting of a number of designated heritage assets, however, the harm would in all cases be less than substantial and reduced by the temporary nature of the planning permission (25 years) and its reversibility. The proposal would also cause harm to the landscape.
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c) The benefits that would accrue from the wind farm – a 10 MW contribution to the 2020 regional target for renewable energy – attracted significant weight in favour of the proposal.
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d) The significant benefits of the wind farm outweighed the harm it would cause to the setting of designated heritage assets and the wider landscape.
It was not disputed that the three Claimants had standing to bring the claim, as persons aggrieved under section 288(1)(b) TCPA 1990.
English Heritage has a statutory obligation under the Heritage Act 1983 to preserve historic buildings and promote public enjoyment and knowledge of them. In the present case it was a statutory consultee, an objector and their representative gave evidence at the Inquiry.
The National Trust is a charitable organisation incorporated under the National Trust Acts 1907 to 1971 and administered in accordance with the Charities (National Trust) Order 2005. It was established for the purposes of promoting the permanent preservation of buildings and lands for the benefit of the nation. It objected to the grant of planning permission and its representatives gave evidence at the Inquiry.
The National Trust owns the site of Lyveden New Bield, arguably the most important heritage asset affected by the proposed development. Lyveden New Bield is said to be the finest surviving example of an Elizabethan garden, and also of significance because it was designed to be a testament to the Catholic faith in an era of religious persecution. It is Grade 1 listed, and the Inspector found "this group of designated heritage assets has archaeological, architectural, artistic and historic significance of the highest magnitude" (paragraph 45, Appeal Decision).
The First Defendant conceded that the Inspector's decision should be quashed and took no further part in the proceedings.
Grounds of challenge
The issues in dispute on this application were as follows:
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a) Did the Inspector give special regard to the desirability of preserving the settings of listed buildings as required by section 66(1) Planning (Listed Buildings and Conservation Areas) Act 1990 ("P(LBCA)A 1990")?
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b) Did the Inspector correctly interpret and apply planning policy on the effect of development on the setting of heritage assets?
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c) Did the Inspector give adequate reasons for his decision?
Mr Hardy complained that there were differences in the formulation of the Claimants' grounds, as between the Claim Form and the Skeleton Argument. I did not consider that these were significant and the Second Defendant was not unfairly prejudiced by them.
Principles of law
In considering these issues, I have applied the following principles of law.
The exercise of planning judgment and the weighing of the various issues are entirely matters for that decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28 and Tesco v Secretary of State for the Environment [1995] 1 W1.R 759, at 780. In the latter case Lord Hoffmann said "If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State".
In Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74 (a case concerning a challenge to a planning inspector's decision) Sullivan J. said at [6] – [8]:
"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.
In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.
Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task …"
In Tesco Stores v. Secretary of State for the Environment & Ors [1995] 1 WLR 759, Lord Hoffmann said, at 780F-H, that the weight to be given to a material consideration was a question of planning judgment for the planning authority.
In Tesco Stores Limited v Dundee City Council [2012] UKSC 13, Lord Reed (with whose judgment Lord Brown, Lord Hope, Lord Kerr and Lord Dyson agreed) said, at [17]:
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