Jane Margaret Mordue v Secretary of State for Communities and Local Government and Others

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeJohn Howell
Judgment Date09 Mar 2015
Neutral Citation[2015] EWHC 539 (Admin)
Docket NumberCase No: CO/4123/2014

[2015] EWHC 539 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

John Howell QC

(sitting as a Deputy High Court Judge)

Case No: CO/4123/2014

Between:
Jane Margaret Mordue
Claimant
and
Secretary of State for Communities and Local Government (1)
Aidan Jones (2)
South Northamptonshire Council (3)
Defendants

Juan Lopez for the Claimant

Charles Banner (instructed by Wilkin Chapman LLP) for the Second Defendant Defendants (1) and (3) did not attend the hearing and were not represented

Hearing dates: February 18 th 2015

John Howell QC:

1

This is an application under section 288 of the Town and Country Planning Act 1990 to quash the decision of an Inspector, Mr John Braithwaite, granting planning permission for the erection of a free-standing wind turbine and certain associated development at Poplars Farm, Wappenham in South Northamptonshire. The wind turbine would be 60m high to its hub and 86.45m high to its top blade tip.

2

The application for planning permission was made Mr Aidan Jones, the owner of Poplars Farm. He appealed to the Secretary of State for Local Government and Communities against the failure of the local planning authority, South Northamptonshire Council (" the Council"), to determine his application within the prescribed period. The Secretary of State appointed the Inspector to determine the appeal.

3

The appeal was conducted by written representations. Among those who objected to the development, in addition to the Council, was Jane Margaret Mordue (" the Claimant"). She is the Chair of the Wappenham Wind Turbine Action Group. She was concerned among other matters with the visual impact that she feared that the wind turbine would have. She was concerned that it would dominate the landscape for miles around and affect many of the local listed buildings including the Church of St Mary in Wappenham. This is her application to quash the Inspector's decision.

4

The Inspector found that the proposed wind turbine would have a significant adverse effect on the character of the landscape up to a distance of 0.5km, and a moderate adverse impact thereafter up to 1km, from its location and that it was, therefore, in conflict with two saved policies of the South Northamptonshire Local Plan. Those policies remain part of the development plan for the area. The Inspector also found that the proposed turbine would have a negligible effect on the setting of all the listed buildings in the area other than Church of St Mary in Wappenham, a Grade II* listed building. He considered that the harm to the setting of that listed building would be more than negligible but less than substantial. Cumulatively the harm to the settings of the listed buildings in his view would be less than substantial. He found that nevertheless the proposed development would be in conflict with another of the saved policies in the Local Plan, EV12. Against that the Inspector considered that the development would make a small contribution to meeting the effects of climate change, something which is an objective in the Secretary of State's National Planning Policy Framework (" NPPF") and in National Policy Statements. In his view the harm that the development would cause to the landscape and heritage assets in the area was outweighed by its environmental benefits. Accordingly the Inspector considered that material considerations, namely the environmental benefits of renewable energy, indicated in this case that the determination of the appeal should be made otherwise in accordance with the development plan. He, therefore, granted planning permission for the development for a period of 25 years subject to conditions.

5

There are two grounds on which the court may quash a decision under section 288 of the Town and Country Planning Act 1990 (" the 1990 Act"). The court may do so if it is satisfied either (i) that the decision "is not within the powers of this Act" or (ii) that the "interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it": see section 288(1)(b) and 288(5)(b) of the 1990 Act. Mr Charles Banner, who appeared on behalf of Mr Jones, did not dispute that the Inspector was subject to a requirement to give reasons for his decision.

6

On behalf of the claimant, Mr Juan Lopez contended that the Inspector's decision falls to be quashed on four grounds. He submits (i) that the Inspector failed to apply "properly" the duty imposed by section 38(6) of Planning and Compulsory Purchase Act 2004 which required the appeal to be determined "in accordance with the [development] plan unless material considerations [indicated] otherwise"; (ii) that the Inspector failed to apply "properly" or at all the duty imposed by section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 which required him to "have special regard to the desirability of preserving [any listed] building or its setting"; (iii) that the Inspector failed to deal with the intrinsic significance of the heritage assets affected by the proposed development and the contribution which their setting made to their significance; and (iv) that the Claimant has been substantially prejudiced by the Inspector's failure to give reasons for his decision.

THE INSPECTOR'S REPORT

7

In order to understand some of the submissions made by Mr Lopez and Mr Banner, it is unfortunately necessary to set out some parts of the Inspector's decision letter (" DL") extensively.

8

The Inspector identified what he considered the main issues on the appeal as:

"first, the effect of the erection of the turbine on the character of the landscape, particularly when seen from footpaths and viewpoints in the area; second, the effect of the development on heritage assets; third, whether the development would cause any other harm; and fourth, whether the harm caused is outweighed by the environmental benefits of the renewable energy scheme."

9

In addressing the first issue, the effect of the proposed development on the character of the landscape, the Inspector analysed its character and the effect it would have. His conclusion was that

"9. The proposed turbine development, as generally accepted by both main parties, would have a significant adverse effect on the character of the landscape up to a distance of about 0.5 kms from its location and would have a moderate adverse effect on the character of the landscape between about 0.5 and 1.0 kms from Poplars Farm. The proposed development thus conflicts with saved policies G3 and EV1 of the South Northamptonshire Local Plan."

10

In relation to the effect of the development on heritage assets the Inspector stated that:

"10. The nearest non-residential heritage asset to the location of the proposed turbine is the Church of St Mary in Wappenham, a Grade II* listed building. The immediate setting of the Church is its churchyard, an intimate area confined by buildings and vegetation. It is unlikely that the turbine would be visible from within the churchyard. The Church is at the heart of the village and it is a prominent feature particularly from the north within the village. The turbine would be more than 1 km from the church and it is unlikely that it would be visible in the background in these village views of the church. The tower of the Church is visible from outside the village from some directions and it is possible that the tower and the turbine would be seen in the same views. However, given the distance between them the turbine would not compete with, or detract from, the landmark feature that is the Church tower. Nevertheless, the turbine would be a feature in the countryside setting of the Church and it would cause harm to this setting, though the harm would be less than substantial.

11. The Manor, a dwelling that is a Grade II* listed building, is situated close to the Church of St Mary in Wappenham. It is within the tight core of mainly historic development around the Church and the effect of the turbine on its setting would be negligible. The same conclusion can be reached for other listed buildings within the village. Further afield is the Church of St Botolph at Slapston, a Grade I listed building. This Church is over 2 kms from the location of the proposed turbine and, though it is located on slightly elevated ground, views towards the turbine from its immediate surroundings would be filtered by a belt of trees to the south-west. It is possible even that the turbine would not be visible from the surroundings of the Church and, despite its high sensitivity, the potential harm to its setting can only be regarded to be negligible. The same conclusion can be reached for other listed buildings in the vicinity of the Church, such as Manor Farm and an associated barn.

12. The aforementioned listed buildings are all more than 1 km from the location of the proposed turbine and no other heritage asset, listed building or registered park and garden, would be any closer. The turbine would not cause harm, greater than negligible, to the setting of any of these other heritage assets.

13. The proposed turbine would harm the setting of the Church of St Mary but the harm would be less than substantial. The turbine would have a negligible harmful effect on the settings of other heritage assets in the area. The cumulative harm to the settings of heritage assets is less than substantial. Nevertheless, the proposed development is in conflict with saved LP policy EV12."

11

The Inspector found in relation to the third main issue that the proposed development would...

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