Goring-on-Thames Parish Council v South Oxfordshire District Council and Another Goring and Streatley Community Energy Ltd (Interested Party)

JurisdictionEngland & Wales
JudgeMr Justice Cranston
Judgment Date17 November 2016
Neutral Citation[2016] EWHC 2898 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/2122/2016
Date17 November 2016

[2016] EWHC 2898 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon. Mr Justice Cranston

Case No: CO/2122/2016

Between:
Goring-On-Thames Parish Council
Claimant
and
(1) South Oxfordshire District Council
(2) The Environment Agency
Defendants

and

Goring and Streatley Community Energy Limited
Interested Party

Mr. Charles Streeten (instructed by Richard Buxton) for the Claimant

Mr. Jeremy Pike (instructed by South Oxfordshire District Council) for the 1 st Defendant

Hearing dates: 9 November 2016

Judgment Approved

Mr Justice Cranston

Introduction

1

This is a claim for judicial review brought by Goring-on-Thames Parish Council ("Goring Parish Council") against a decision of the development control (planning) committee of South Oxfordshire District Council ("the Council") dated 9 March 2016. The Council decided to grant planning permission for a scheme to generate hydropower at Goring Weir for local usage, at full capacity some 107KW. Lang J gave permission to bring the claim on 25 July 2016.

2

The proposed scheme is to be located within the Goring-on-Thames Conservation Area and the Streatley Conservation Area. It is also located in the Chilterns and the North Wessex Downs Areas of Outstanding Natural Beauty ("AONB"). The former covers 324 square miles, the latter 668 square miles.

3

Goring Parish Council objected to the hydropower scheme for a number of reasons when the matter was before the Council's planning committee. The challenge in this judicial review focuses on harm from the scheme to the Chiltern and North Wessex Downs AONBs and the impact of noise from it upon tranquillity in the AONBs; the scheme's impact on listed buildings, their settings and the conservation areas; and the Council's failure to adopt a reasoned environment screening opinion in relation to it.

4

Shortly before the hearing Goring Parish Council confirmed its intention to file a notice of discontinuance as regards its claim against the Environment Agency. The consent order between the parties concerned the flood risk assessment and its adequacy. Thus the only claims which needed to be considered at the hearing were those against the Council.

Background

5

The villages of Goring and Streatley, as well as the River Thames which lies between them, have a rich, cultural history. The location of the two villages has marked a crossing of the River Thames since Celtic times. The first bridge was built in 1837 and replaced in 1923. The nearby Grade I listed church of St Thomas of Canterbury is a visible reminder of Goring's long parish history, dating as it does to Norman times. There are about a dozen Grade II listed buildings in the two villages. Throughout its history, the site has been connected with both art and literature. A Turner painting entitled 'Goring Mill and Church' hangs in the National Gallery. Books such as Jerome K Jerome's Three Men in a Boat and Kenneth Grahame's Wind in the Willows have descriptions of the villages or drew inspiration from the site of Goring Weir.

6

Goring Weir is located within a section of the River Thames where it divides into separate channels comprising the lock cut, a main channel split by an island with two separate weirs, Goring Weir and Streatley Weir, and an old mill channel. The lock, with associated buildings, is on the eastern bank. Goring Weir is located to the west of these. The eastern bank, in Goring, comprises residential properties with gardens leading down to the river. The western bank, in Streatley, is characterised by meadow land and marshy grassland, and includes the buildings forming the Swan Hotel. It is Grade II listed. The B4009 road bridge over the River Thames is located 100 metres south of the weir, linking Goring and Streatley. The Thames footpath runs alongside the river on the western bank, and south of the Lock House on the eastern bank.

7

The weir itself has a sharp crest of approximately 59.5 metres in length with a series of steps to discharge the water downstream. There are three sluice gates and a fish pass is located in the centre of the weir. The large sluice gates in the middle of the weir are controlled by the Environment Agency to maintain the upper water level for navigation and flood control.

The planning application

8

The scheme involves demolishing part of the existing weir at Goring lock for a distance of approximately 18 metres and replacing it with three Archimedes screws. The screw turbines, each of 3.5 metres diameter, will then be installed directly on the site of the existing weir. These will be arranged side by side, directly on the section of the weir closest to the lock house. Water will flow into the screws across the site of the existing weir crest, and discharge close to the bottom of the existing weir. The screws will be fully visible, but the gearboxes, generators and control systems will be situated in a separate power house. The top of this building will be lower than the existing walkway. The concrete works are to be left exposed, and metalwork, including the Archimedes screws and the acoustic covers to the generators, will be painted 'Environment Agency' grey. A 2.1 metre wide fish pass, an eel pass and a three metre wide flood control gate for use by the Environment Agency are part of the scheme.

9

Goring and Streatley Community Energy, the Interested Party, and their consultants held pre-application discussions with the Environment Agency regarding an application for a hydropower scheme in 2010. They had had an Environment Report prepared by a consultant in 2009, which had some sections on landscape and visual amenity. As to landscape, the report said that the existing weir structure was functional in appearance. The addition of the hydropower plant to the weir would not significantly increase its size nor have an adverse effect on its visual character: "The hydropower plant will therefore have no significant adverse effect on the local landscape character." As to visual amenity, the report concluded that the view from the road bridge over the river and weir had a high sensitivity to change. So did the view from the river going upstream:

"[A]dverse effects of high significance on visual amenity would be experienced mainly by river users travelling upstream and pedestrians viewing the river from the B4009 road bridge. In order to mitigate for the adverse impacts on these visual receptors, the colour of the hydropower plant and the control building would be sympathetic with the local landscape and the existing weir structure."

10

An initial planning application was made in 2012. There was a Noise Impact Assessment accompanying it dated September 2012. Paragraph 7 stated:

"[I]t is appreciated that mechanical noise is substantially different from that of rushing water noise and transmits at higher frequencies. Therefore individual acoustic covers will be place[d] over all three drive trains to reduce the noise within 1m by at least 20dBA. This would result in a sound pressure level at the lock-house of no more than 47dBA and at the nearest residence on the Goring bank of just 30dBA, both of which are inaudible above the existing ambient sound levels at each location".

11

The 2012 planning application was withdrawn following objection from the Environment Agency on the basis, inter alia, that the flood risk assessment was inadequate.

12

The current application was dated late August 2015. As a result of the application, the Council prepared a publicity checklist. "Affecting Conservation Area" was ticked, but not "Affecting setting of a Listed Building". There was also an Environmental impact assessments ("EIA") checklist, which indicated that the application fell under Schedule 2, was in a sensitive area but not over the threshold. The Council officer added a noted that the Swan Hotel at Streatley should be consulted.

13

The Council's conservation officer was consulted. In her response of 16 October 2015, she listed as relevant legislation and policy section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, section 12 of the National Policy and Planning Framework ("NPPF") and Local Plan Policy CON7. She then stated that she had no objection to the principle of the application. Throughout history, the river has been used to generate power and she considered that the installation of the Archimedean screw generator was a modern progression of an historic tradition.

14

However, she said, the location at Goring Weir did not lend itself so well to discreet housing of the generators since this part of the river was open in character and was prominent in views from the river crossing. As such, it was important that the built structures be as small as possible in order to reduce their visual impact on views with the conservation area. The solid brick wall appearance of the power house in the proposal would dominate views. The conservation officer's recommendation was as follows:

"Ultimately there will be some alteration to the character of this part of the river and the contribution it makes to the Conservation Area. If there is harm, it is certainly less than substantial as the special character and appearance of Goring that warrants its designation will not be completely lost. As such, where there is harm, the Local Authority should be satisfied that it is outweighed by the public benefits of this scheme as per paragraph 134 of the NPPF. I therefore suggest that either a redesign of the building or evidence that the most sympathetic design has been proposed should be obtained to inform the decision."

15

In October 2015 the conservation officer for West Berkshire Council also responded to the application. She agreed with what the Council's conservation officer had said. However, she was concerned that the...

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