North Cote Farms Ltd v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Judge Behrens |
| Judgment Date | 20 February 2015 |
| Neutral Citation | [2015] EWHC 292 (Admin) |
| Docket Number | Case No: CO/4211/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 February 2015 |
2015 EWHC 292 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
PLANNING COURT
LEEDS DISTRICT REGISTRY
The Court House
Oxford Row
Leeds LS1 3BG
His Honour Judge Behrens sitting as a Judge of the High Court in Leeds
Case No: CO/4211/2014
David Hardy, Solicitor Advocate (instructed by Eversheds) for the Claimant
Richard Honey (instructed by Treasury Solicitor) for the First Defendant
Hearing date: 9/2/2014
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.
This is an application under section 288 of the Town and Country Planning Act 1990 in which Northcote Farms seeks to quash the decision of the Secretary of State's Inspector, Louise Crosby, contained in a decision letter dated 1 August 2014.
. The Inspector refused planning permission for the erection of a 75m high wind turbine because of the proposal's effect on the setting of Carnaby Temple, a listed folly built around 1770, which was some 500m away from the site of the proposed turbine.
. There are 2 grounds of appeal which are helpfully set out in paragraph 1.3 of Mr Hardy's skeleton argument:
Ground (1): Having identified Carnaby Temple as a Grade II designated heritage asset which would be affected by the proposed development, the Inspector found as a matter of fact that:
(a) the windows of the building had been bricked up
(b) the Temple was currently unable to fulfil one of its original purposes, that being a place from which to look out onto the landscape and coast
(c) there are no views out of the Temple anywhere
Notwithstanding these findings of fact, the Inspector concluded that there would be harm to the heritage significance of the building on a hypothetical assumption that narrow views from the windows would be harmed if the buildings were not bricked up. No views are obtainable and there was no evidence before the Inspector that listed building works to the Temple are likely to happen. In so doing, the Inspector took into account an immaterial consideration and/or failed to provide adequate reasons for her conclusion of harm and/or acted perversely
Ground (2): Inspector Crosby failed to determine the appeal in accordance with section 38(6) of the Planning and Compulsory Purchase Act 2004. In so doing, the Inspector misunderstood and/or misapplied the statutory test and failed to provide adequate or any adequate reasoning for her approach
. The Secretary of State resists the application. Essentially he contends that the challenge to the decision of the Inspector is a challenge to the merits of the decision and this court should not interfere. However he also contends that the Inspector was entitled as a matter of law to take into account the views from Carnaby Temple and that the Inspector's approach was in accordance with the submissions made to her and was correct. Alternatively, it would have made no difference to the result of the appeal if she had considered s38(6) expressly.
The Law
General Principles
. There is no dispute as to the relevant general principles of law which are set out in each of the skeleton arguments and may be summarised as follows.
The Planning Merits
. An application to the Court is not an opportunity for a review of the merits of an Inspector's decision, and the Court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the merits.
. The assessment of facts and weighing of considerations is in the hands of the Inspector alone and the Court has no power to intervene; matters of planning judgement are entirely for the Inspector
Decision Letters
. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. An Inspector is obliged only to "deal with the substantial points that have been raised" and "the principal important controversial issues".
. An inspector is not writing an examination paper and decision letters must be read in good faith. Decision letters should be read fairly and as a whole and without excessively legalistic textual criticism.
. A decision letter is addressed to parties who are well aware of all the issues involved and of the arguments deployed; it is not necessary to rehearse every argument relating to each matter.
Irrationality
. For a conclusion to be irrational or perverse it must be one that that no reasonable person in the position of the Inspector, properly directing herself on the relevant material, could have reached. The Court will require "something overwhelming" from the Claimant before allowing a challenge of this. A claimant alleging that an inspector has reached a Wednesbury unreasonable conclusion on a matter of judgement faces a particularly daunting task.
Relevance
. If a matter would not have caused the Inspector to reach a different conclusion then it is irrelevant whether it was taken into account.
Statute
. I was referred to 2 statutory provisions in the course of the application.
. Section 66 (1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the 1990 Act") which provides:
In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.
. Section 38(6) of the Planning and Compulsory Purchase Act 2004 which provides:
If regard is to be had to the development plan for the purpose 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.
. I was referred to a number of authorities on each of these provisions and will refer to them when considering the grounds of appeal later in this judgment.
The Planning Application
History
. As already noted the planning application related to the erection and operation of a 49m high wind turbine (75m wind to tip), erection of a meter house and transformer compound and construction of crane pad and access track on land at Temple Farm, Temple Lane, Carnaby, East Yorkshire.
. The original application was made on 12 th March 2012. It was refused on 24 th January 2014 on 3 grounds. The second ground was:
The proposed development will result in harm to Carnaby Temple and the Burton Agnes Hall complex of designated heritage assets …The harm identified to these designated heritage assets is not considered to be outweighed by the benefits associated with renewable energy development and as such the application is contrary to policy EC5 of the Proposed Submission Strategy Document and paragraph 132 of the National Planning Policy Framework ("NPPF").
. An appeal to the Secretary of State was dismissed by the Inspector on 1 st August 2014
The Decision Letter
. The Decision Letter is divided into sections.
The site and landscape
. The site is described in paragraphs 4 – 15 of the Decision Letter. The Inspector found that the appeal site is located in an agricultural field to the west of Temple Farm. It falls within the Open High Rolling Farmland of the Yorkshire Wolds. The relevant key characteristics of this area are the elevated rolling landform; the large scale open landscape with long distance views dominated by sky; its sparsely populated area with scattered villages and farmsteads; large and very large rectilinear regular arable fields; fragmented hedgerows; and very few public rights of way.
. The landscape is gently undulating, with the appeal site located on one of the more elevated sections of this landscape. The turbine would be sited around 200m south-west of the existing large farm buildings. To the west of the site is a shelterbelt of mature and semi-mature deciduous woodland. The proposal would introduce a tall vertical structure into this landscape.
. Given the location of the proposed turbine, its elevated position and its overall height it would be seen from some distance away. However, in most views it would be seen in the context of large farm buildings, the electricity poles and the nearby woodland. In the Inspector's view these would help to ameliorate its effect as it would not be the only structure with a vertical emphasis. Nonetheless she pointed out that it would be appreciably taller and contain rotating blades.
. Overall the inspector found that the landscape has the capacity to absorb this single turbine which would be seen in the context of other large buildings, numerous electricity poles and a shelterbelt of mature woodland. In the light of ground 2 it is necessary to set the final sentence of paragraph 15:
As such, it would not harm its character or appearance and would accord with BWLP policy EN3 which seeks to protect the Wolds Area of Landscape Protection; policy EN2 which seeks to protect the open countryside from harmful development; and policy EN25 which permits renewable energy proposals where they would not unduly harm the character and appearance of the landscape.
The setting
. In paragraph 16 of the...
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