Hubert v Carmarthenshire County Council Gareth Tucker (Interested Party)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Cranston,Mr Justice Cranston |
| Judgment Date | 05 August 2015 |
| Neutral Citation | [2015] EWHC 2327 (Admin) |
| Docket Number | Case No: CO/4768/2014 & CO/859/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 August 2015 |
[2015] EWHC 2327 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
SITTING IN THE SWANSEA CIVIL JUSTICE CENTRE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Cranston
Case No: CO/4768/2014 & CO/859/2015
and
Mr John Hunter (instructed by Irwin Mitchell Solicitors) for the Claimant
Mrs Harriet Townsend (instructed by Steven Murphy, solicitor to the Council) for the Defendant
Mr Gwydion Hughes (instructed by Eversheds LLP) for the Interested Party
Hearing dates: 14/07/2015
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
These are applications for judicial review which challenge the decisions of Carmarthenshire County Council ("the Council") to grant planning permission to the interested party for a single wind turbine at Wern, Pencader, Carmarthenshire ("the site"). The claimant and his wife live about 400 metres from the proposed development. They have lived there for 40 years. Their home is a traditional stone Welsh long cottage with a small holding of five small fields, stream and deciduous woodland. The interested party is one of five shareholders and six employees of a private limited company known as Seren Energy Ltd ("Seren") based in Swansea, which offers development services associated with the renewable energy sector. The Council is the Highway Authority for the county.
The Council granted planning permission on 3 September 2014. The claimant's first judicial review was lodged on 14 October 2014. Gilbart J granted permission to apply for judicial review on grounds 1 and 3 only: [2015] EWHC 741 (Admin). On appeal, Sullivan LJ granted permission on two additional grounds. Meanwhile, on 13 January 2015, the Council had made a further decision to grant permission, whilst still defending the original planning permission. The claimant lodged judicial review proceedings challenging that second decision on 23 February 2015. Patterson J refused permission to apply for judicial review on 1 May 2015. The Liaison Judge for the Administrative Court in Wales, Hickinbottom J, vacated the renewal hearing on this application and on 5 June 2015 relisted it as a two-day rolled-up hearing, alongside the hearing of the first judicial review.
Background
The two planning permissions the Council has granted Seren are for the installation of a wind turbine of up to 67 metres (to blade tip) on a field on the northern slope of a hillside, 1.6 kilometres from Pencader. The field is bounded by hedgerow. The turbine is proposed to be sited some 20 metres from the closest hedgerows. An access track will be created within the site by importing a volume of stone.
As preparation for a planning application in 2012, Seren commissioned a number of habitat, ecological, bird and tree surveys. In April 2013 they received a report from a consultancy SBA entitled "Abnormal Access Route Review". This was because the intended access route for construction of the turbine involves the use of narrow country lanes with high-sided embankments, trees and hedgerows. The report identified 16 so-called points of interest ("POIs 1–16"), including points where modifications to the local highway network will be required in order to accommodate safely the loads involved (e.g., the turbine itself, the generator and other equipment).
As part of the report, SBA conducted a "swept path" analysis to gauge how the loads for construction would occupy the highway at the 16 points of interest. The swept path assessment built in a degree of safety margin to over-predict the required area. SBA recommended that a trial run be undertaken before the delivery of actual components to confirm the findings of its study.
Another consultancy, Wildwood Ecology Ltd ("Wildwood"), provided a "Preliminary Ecological Appraisal" on the ecological implications of the proposed access route in May 2013. It concluded in sections 7 and 8 that if its mitigation and compensation measures were followed, the required modifications to the highway during the construction phase would not have a significant ecological impact.
Seren's first application for planning permission was submitted in May 2013 and formally validated on 19 June 2013. With the application was a "Design and Access Statement", as part of the Additional Planning Information. Part of it dealt with the Traffic Management Plan for delivery of the turbine. It stated that the construction of the turbine was expected to take three months and involve some 113 HGV movements. Of these, nine abnormal loads would need to be delivered over a 3–4 day period. Residents would be notified in advance and the deliveries would be accompanied by a police escort.
At some point in 2013, Seren revised the proposed abnormal access route so as to avoid POI 4 and POI 5 and the road between them. The route was diverted via Llandysul. Article 10 notices under the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 were served on the owners of land in two other locations, POI 6 and POI 14. Mr Duffy, the owner of land at POI 6, agreed for works to be carried out on his land. However, Mr and Mrs Cock of Plwmp Farm at POI 14 said in December 2013 that they would not agree. Earlier that year they had informed Seren that they had mislaid the deeds and plans relating to their land. Consequently, Seren proceeded on the basis of plans of the adopted highway it obtained from the Council in April 2013, which showed that the land required at that point for carrying the construction loads was under the Council's control.
The Council adopted a screening opinion on 6 December 2013. The Council's planning ecologist had been consulted. The screening opinion accepted that the development was Schedule 2 development under the Town and Country Planning Environmental Impact Assessment (England and Wales) Regulations 199After referring to its legislative base, and the characteristics of the development, it stated that, on balance, an Environmental Impact Assessment ("EIA") was not required for the proposed turbine. The opinion contained three sections, with headings which reflected the criteria in Schedule 3 of those Regulations. Under the heading "characteristics of development", it stated that many of the environmental impacts
"can be dealt with through assessments within the planning application process and would not justify the need for a full EIA individually unless there are significant justifications on either one set of reasoning (e.g., landscape impact on sensitive areas) or cumulative in terms of a likely significant impact on a number of factors that would benefit from more in-depth investigation under an EIA."
The screening opinion then considered the location of the development. Amongst other things, there was reference to the country lane to the immediate west of the site which, like the majority of the roads within the immediate surrounding area, is narrow with embankments on each side upon which are established hedgerows. Under the third heading, "characteristics of potential impact", the screening opinion stated:
"Given the relatively small number of residential properties within close proximity to the proposed wind turbine it is deemed that any potential impacts on any population's amenities, including any potential visual or noise impact can be adequately assessed within the planning application process subject to providing sufficient detail. The impacts can be considered through the planning application process without the need for EIA for this scale turbine at this location would be the potential visual and landscape impact, shadow flicker/noise on nearby properties and the impact on ecology will also need to be considered. Sufficient detail in this instance would be sufficient to assess the potential impact on these factors.
The conclusion was as follows:
In conclusion, and in accordance with the need to conduct a screening opinion the Local Planning Authority considers that an EIA is not required by virtue of there not being anticipated significant environmental impacts as a result of the proposed wind turbine. All possible impacts can be adequately assessed effectively within the planning application process."
The Council's planning committee considered the first application for planning permission at a meeting on 17 December 2013. The committee decided to postpone consideration of the application pending a site visit. In January 2014, Landmark Surveys Wales Ltd conducted a topographical survey for Seren of the area near Mr and Mrs Cock's land. The purpose was to plot the delivery route of the turbine at POI 14 to determine whether the turbine could be delivered to the site without requiring access to their land. It surveyed the land between the tops of the banks on either side of the road. The tops of the banks were considered to be an appropriate extent of highway land as the topographical survey confirmed that the space between the two banks would vary between about six and seven metres, which matched the measurements of the area of the adopted highway set out on the highways plan obtained in April 2013.
The planning committee considered the matter again on 28 August 2014. As with the December 2013 meeting, there was an officer's report. It recommended approval. The report began by setting out the responses to...
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