Howell v Secretary of State for Communities and Local Government (1st Defendant) Waveney Borough Council (2nd Defendant) Stamford Renewables Ltd (3rd Defendant)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Cranston
Judgment Date07 Nov 2014
Neutral Citation[2014] EWHC 3627 (Admin)
Docket NumberCase No: CO/2189/2014

[2014] EWHC 3627 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Cranston

Case No: CO/2189/2014

Between:
Howell
Claimant
and
Secretary of State for Communities and Local Government
1st Defendant

and

Waveney Borough Council
2nd Defendant

and

Stamford Renewables Limited
3rd Defendant

Richard Harwood QC (instructed by Richard Buxton) for the Claimant

Richard Honey (instructed by Treasury Solicitor) for the First Defendant

Jeremy Pike (instructed by Mike Stamford – Public Access) for the Third Defendant

Hearing dates: 28–29 October 2014

Mr Justice Cranston

I INTRODUCTION

1

This is a yet another challenge to a planning permission to erect a wind turbine, this time one to be located at Laurel's Farm, Shipmeadow, Near Beccles, Suffolk, on the edge of the Norfolk Broads ("the Broads"). The application in this case is made under section 288 of the Town and Country Planning Act 1990 and CPR Part 8 to quash the decision of a planning inspector ("the Inspector") who granted permission. The claimant contends that the decision was unlawful because the Inspector misinterpreted his duty with respect to the Broads; misapplied planning policies; failed to have regard to the energy output of the turbine; and failed to give any proper reasons for finding that there was no effect on the setting of listed buildings.

2

The claimant, with his wife, is the owner and occupier of Crake Hall, which is 500 metres from, and the nearest dwelling to, the proposed turbine. Crake Hall is outside the Broads. The claimant is a supporter of the local action group, HALT, which is opposed to unsuitable wind turbine development. The first defendant, the Secretary of State for Communities and Local Government, appointed Mr R P E Mellor, as the planning inspector. Crake Hall and the proposed turbine are in the area of the second defendant, Waveney District Council ("the Council"). The third defendant is the developer, Stamford Renewables Ltd based in Norwich.

II BACKGROUND

Planning Application and Environmental Assessment

3

In November 2012 the developer applied for planning permission to the Council to erect a single wind turbine of up to 2MW rated output capacity, a 60 metre high wind mast, and ancillary infrastructure at the site. The Council had indicated that the environmental impact assessment, required for the project, should include all information reasonably required to assess the effects of the project and that it would need to cover, in terms of potential impacts, areas including noise, landscape and visual impact, impact on the historic environment (in particular the impact on the setting of nearby listed buildings), and the likely impact – as suggested by the Broads Authority – on the landscape and the perception of the experience of the landscape. The Council referred to Natural England's strong recommendation of the use of Landscape Character Assessment based on guidelines produced by the Landscape Institute and the Institute for Environmental Assessment. "Natural England", it said, "encourages all new developments to consider the character and distinctiveness of the area …"

4

The Environmental Statement produced by the developer referred in its non-technical summary to the elements of a modern wind farm. One was the wind turbine, and the non-technical summary gave as an example a Vestas V90 2MW. It stated that it was not possible at that stage to specify precisely either the manufacturer or the model which would be chosen and that EC/UK procurement and tendering procedures would need to be followed after planning permission had been granted. However, for the purposes of the Environmental Statement, assessments had been based upon the Vestas V90 2MW wind turbine. Should planning consent be given, the model of turbine chosen would have to match or better the environmental performance of the turbine on which the assessment was based. It was anticipated that a single wind turbine at Laurels Farm would generate an annual average of approximately 5,256MW of electricity taking into account a 30 percent capacity or load factor. For a single Vestas V90 wind turbine rated at 2MW the maximum annual generation forecasted at a load factor of 35 percent, which was regularly achieved by a wind turbine in Lowestoft, would be 6,132MW. For the purposes of the Environmental Statement the capacity factor of 30 percent had been assessed as most likely, taking into account the single turbine at Ness Point, Lowestoft and the North Pickenham turbine near Swaffham in Norfolk.

5

Chapter 9 of the Environmental Statement covered landscape and visual impact assessment. It stated that the effects of the proposal on the Broads landscape character areas were not significant, ranging from low to negligible magnitude, with localised effects of medium magnitude on the area nearest the site. That was identified as not being "of Broads character" but was judged to have the same character as the adjacent undesignated landscape.

6

"Cultural heritage and historic landscape assessment" was chapter 11 of the Environmental Statement. It assessed the impact of the proposed turbine on seven sites. There was no impact on four of these. The church of St Bartholomew at Shipmeadow, the church of St Andrew Ilketshall and the church of the Holy Trinity at Barsham were all assessed as having high sensitivity and the turbine would compete with each of them for visual dominance. However, in each case the magnitude and significance of the impact were classed as negligible.

7

The noise chapter of the Environmental Assessment was prepared by Hayes McKenzie Partnership Ltd. Only the wind blowing from the turbine towards nearby houses was assessed since the wind blowing in the opposite direction would mean noise being significantly lower, especially where there was shielding between the site and the houses. Noise predictions were undertaken in a number of modes in which the noise output was reduced by reducing the rotational speed of the turbine with a resultant reduction in electricity energy produced. Mode zero is the standard mode of operation and modes 1 and 2 are reduced noise modes. Predictions were carried out using a Vestas V90 2MW turbine operating in mode 2. Hayes McKenzie Partnership Ltd noted that under a worse case, downward wind noise propagation conditions noise levels might be up to 2dB higher. Noise predictions were carried out for a wind speed of 10m/s at 10m height, which represented downwind propagation in all directions simultaneously although that was impossible in practice. For the claimant's property, Crake Hall, the noise level in the field adjacent was 33dB.

8

The chapter on socioeconomic impacts in the Environmental Statement covered predicted electricity production for wind turbines set at 30 percent capacity. It was adapted from the performance figure delivered for the East of England in 2008. Ness Point, Lowestoft and North Pickenham, Norfolk, both achieved a much better 35 percent load factor in 2008 and continued to perform above 30 percent. In one of the appendices the calculation of energy generation used the formula: rated output capacity of the turbine x capacity or load factor of 30 percent x number of hours in the normal year. That translated to a calculation of 2MW x 0.30 x 8760 hours = 5,256MWHr per annum.

Council refuses planning application

9

Shortly after the developer lodged the planning application the claimant wrote to the Council to confirm he and his wife's objection. In a letter dated 10 December 2012 the claimant stated that their main objection was the small amount of power generated by the turbine, which did not warrant the hugely detrimental impact on the surrounding area. English Heritage wrote in mid December that it did not need to be consulted further on the application.

10

In early January 2013 the Council's design and conservation officer criticised chapter 11 of the Environmental Assessment relating to cultural heritage and historic landscape. The study was dismissive of the contribution of the setting to the overall heritage significance of rural vernacular buildings, she said, asserting that their significance lay in their building fabric alone. She strongly disagreed with that. The particular character of the setting of farmhouses in the Waveney area contributed enormously to their significance. That was by far the largest category of listed buildings in the vicinity of the proposal and that character needed proper analysis before impact could be assessed. She noted that chapter 11 addressed only seven heritage assets. She disagreed with the assessment that the impact was only negligible or non-existent. English Heritage had previously expressed concern over the impact on Shipmeadow Church and Mettingham Castle and she remained concerned about a number of buildings, some of which were not even dealt with in chapter 11.

11

The Broads Authority was consulted about the planning application. At a meeting on 1 February 2013 the planning committee of the Broads Authority raised an objection to the application on the grounds of its adverse impact on the landscape of the Broads. The officer's report for that meeting explained that the neighbouring local planning authorities at Waveney and South Norfolk had undertaken landscape characterisation work and had found that the landscape outside the Waveney floor on the valley sides and beyond formed part of the setting of the typical Broads landscape of low lying marsh and grazing land. The work of these authorities emphasised the underdeveloped and...

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