Ecotricity (Next Generation) Ltd v The Secretary of State for Communities and Local Goverment
| Jurisdiction | England & Wales |
| Judge | Charles George |
| Judgment Date | 27 February 2015 |
| Neutral Citation | [2015] EWHC 801 (Admin) |
| Docket Number | CO/5038/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 February 2015 |
[2015] EWHC 801 (Admin)
IN HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand
London, WC2A 2LL
Charles George QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
CO/5038/2014
Mr J Pike (instructed by Ecotricity) appeared on behalf of the claimant
Mr D Kolinsky QC (instructed by Treasury Solicitors) appeared on behalf of the first defendant
Mr D Forsdick (instructed by Richard Buxton) appeared for the third defendant
THE DEPUTY JUDGE: This is yet another wind farm case. Under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") as amended the claimant with the unambiguously futuristic name Ecotricity (Next Generation) Limited challenges the decision letter ("DL") of the first defendant, the Secretary of State for Communities and Local Government dated 25 September 2014 refusing its appeal under section 78 of the 1990 Act.
The claimant proposed a wind turbine development ("the development") on land at Wood Farm, Church Lane, Shipdham, IP25 7JZ ("the appeal site"). The development comprised two wind turbines of overall height of up to 100 metres and associated infrastructure and access tracks.
The officers of the second defendant, the local planning authority, recommended to the elected members that planning should be granted, but wind turbines are still highly controversial, particularly at a local level. Members did not accept that recommendation. They refused to grant the planning permission for a single reason related to impact upon the landscape.
Initially the Secretary of State appointed an inspector to determine the claimant's appeal against the refusal of planning permission at a hearing. Subsequently the Secretary of State recovered the appeal for his own determination following a public inquiry ("the inquiry"). There is no suggestion that this was in any way improper.
The inquiry took place over six days in November 2013. The very experienced inspector JP Watson BSc, MICE, FIHT, MCMI, produced a report ("the report") seven months later to the Secretary of State dated 6 June 2014, which ran to over 100 pages. He recommended that the appeal be dismissed. The DL summarised and agreed with the conclusions and recommendations.
The inspector and the Secretary of State found that the development was in accordance with the development plan but concluded that other material considerations were of such weight that planning permission should nevertheless be refused. This they were entitled to do absent errors of law by reason of section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") which provides:
"If regard is to be had to the development plan for the purposes of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
Three matters were found by the inspector and the Secretary of State to weigh against the grant of planning permission, despite its accordance with the development plan: (a) effects on the setting of listing buildings which would not be harmful in a way which was counter to the relevant development plan policy but which would be harmful to the setting of listed buildings; (b) the fact that the scheme would fail to protect prized tranquillity contrary to paragraph 123 of the National Planning Policy Framework ("NPPF"); (c) the fact that the scheme would lead to an intensification of risk to aviation by virtue of factors associated with air traffic control at Shipdham Airfield.
Grounds of Challenge.
The challenge principally concerns two of these three reasons, (a) and (c) above, and, as reformulated by Mr Pike for the claimant at the start of his opening, the grounds are:
1. Was it lawful for the inspector and the Secretary of State to find against the claimant on an aviation safety matter raised by a third party when the matter had not been raised in objection by any party or objector during the inquiry and also at the preceding hearing?
2. How on the facts of this case could the inspector and the Secretary of State conclude that the development conformed with the development plan as a whole and in particular with the relevant policy DC17 and at the same time conclude that considerable weight had to be given to the effect on the setting of two listed buildings as a result of section 66 of the Town and Country Planning (Listed Buildings) Act 1990 ("the Listed Buildings Act")?
3. Was the decision to refuse flawed for failure to address the test in paragraph 134 of the NPPF where there was less than substantial harm to listed buildings?
4. Was the decision to refuse flawed for failure to address the presumption in favour of sustainable development which arose under paragraph 14 of the NPPF?
Grounds 3 and 4 were introduced and argued by Mr Pike as part of his ground 2, though in my view they raise separate issues which is why I have separated them.
Legal Framework.
There is no dispute between the parties as to the relevant legal principles. Forbes J's familiar Seddon principles have now been simulated into a broader and updated formulation under five heads by Lindblom J in Bloor Homes East Midlands Limited v the Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) para 19. The key principles for present purposes are that decisions on appeal "are to be construed in a reasonably flexible way", part of his principle (1); "the reasons for an appeal decision must be intelligible and adequate to understand why the appeal was decided as it was and what conclusions were reached on the principal controversial issues" and "the inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law" (part of his principle (2)); and finally "when it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the principle in question" (part of his principle (5)).
Apart from the Bloor Homes principles there are two recent decisions of the Court of Appeal on special aspects of planning aspects. The first is Secretary of State for Communities and Local Government v Hopkins Development Limited [2014] PTSR 1145 dealing with so-called ambush cases. That is highly relevant to ground 1. The second is Barnwell Manor Wind Energy Limited v East Northamptonshire District Council and Others [2014] EWCA Civ 137, dealing with the approach to listed buildings and thus central to ground 2. I shall come to the details of these two cases in due course.
Ground One — Aviation safety.
(a). The report.
In a section beginning at para 298 the inspector summarised the written representations which had been received. He referred to the request of Norwich International Airport Limited ("NIA") for conditions for offering no safeguarding objection to the development. At paras 307 to 308 he reported that the Civil Aviation Authority ("CAA") raised no objection, but that it expressly said it had no responsibilities for safeguarding sites other than its own property; and it had commented that site operators remained responsible for providing evidence as to any impact on their businesses. Accordingly, said CAA, its own lack of objection should not be taken to mean that there were no aviation issues or that a comment from an operator lacked weight. At para 309 the inspector reported that National Air Traffic Services ("NATS") confirmed it had no safeguarding objection in terms of effects on the infrastructure of radars, communication systems and navigational aids for which NATS was responsible.
I set out paras 301 to 306 dealing with the objection of the Shipdham Flying Club ("SFC") in full:
"301. Shipdham Flying Club: by letter to the LPA dated 6 October 2011 (document G14 application representations, page 103): the Club operates Shipdham Airfield. It hoped to start offering pilot training from the Airfield. Norwich International Airport was to extend its controlled airspace to the outskirts of Shipdham, early in 2012. The new airspace would encourage low level general aviation (under 1500 feet) to move further to the west than at present. In conjunction with the Marham Air Traffic Zone this would create a possible low level choke point directly above Shipdham village and the proposed turbine site.
302. The club's representation dated 20 April 2003 to the inquiry that was held in that year is more valid now than ever. The club is concerned by the consequences of an aircraft straying from the precise position of a perfect circuit or approach and being confronted by a structure in its direct line of flight and at the same height. The problem is twofold.
303. Firstly, the proposed position of the turbines and their declared height puts them in possible conflict with powered aircraft and gliders using the Airfield's main runway. There is also a secondary runway which when used will bring the aircraft using it somewhere between half a mile and a mile closer to the proposed turbine site. The Airfield is used for converting pilots from one type of aircraft to another which means that there could frequently be a pilot on his/her first solo flight in a new aircraft in the area of the turbines.
304. Secondly, Shipdham Airfield is a registered distress and diversion ("D&D") airfield in accordance with CAP667 9.2(c) and is listed for this purpose in all...
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