North Norfolk District Council v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Robin Purchas |
| Judgment Date | 14 February 2014 |
| Neutral Citation | [2014] EWHC 279 (Admin) |
| Docket Number | Case No: CO/6087/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 February 2014 |
[2014] EWHC 279 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Robin Purchas QC SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: CO/6087/2013
Estelle Dehon (instructed by North Norfolk District Council) for the Claimant
Daniel Kolinsky (instructed by Treasury Solicitor) for the 1 stDefendant
Jeremy Pike (instructed by Butcher Andrews Solicitors) for the 2 nd Defendant
Robin Purchas QC SITTING AS A DEPUTY HIGH COURT JUDGE:
Introduction
In this application North Norfolk District Council ("the Council") applies to quash the decision of an inspector appointed by the First Defendant, allowing the appeal of the Second Defendant from the refusal of the Council of planning permission for a wind turbine at Pond Farm, Bodham in Norfolk.
The Grounds
Ms Estelle Dehon, who appears for the Council, relies upon two grounds:
i) that the inspector failed to attach proper weight to the development plan as required by Section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") or failed to give any or any adequate reasons for departing from it (the Development Ground); and
ii) that the inspector failed to have special regard to the desirability of preserving the setting of listed buildings, contrary to Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the LBA 1990") (the Listed Building ground).
Background
The wind turbine was to be erected in open countryside on the side of Cromer Ridge, which is one of the highest points in North Norfolk with implications both for visibility and for wind performance. The mast would be a maximum of 60 metres to hub and 86.5 metres to blade tip. There were a number of listed buildings in the area, including the Grade I Barningham Hall of Jacobean origin but enlarged and landscaped by Humphrey Repton with a Grade II registered park, the Grade I Baconsthorpe Castle and a number of Grade II* churches.
The application for planning permission was refused by the Council on the 30 th August 2012 on grounds of its impact on landscape and heritage assets. The Second Defendant appealed and the appeal was dealt with by a hearing on the 29 th January 2013 with a site visit on the following day. The appeal was allowed by decision letter dated the 8 th April 2013.
Statutory Framework
So far as relevant, by Section 70(2) of the Town & Country Planning Act 1990 ("the TCPA 1990"):
"… in dealing with such an application, the authority shall have regard to
(a) the provisions of the development plan so far as material to the application;
(b) any local finance considerations so far as material to the application; and
(c) any other material considerations."
By Section 38(6) of the 2004 Act:
"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."
By Section 66(1) of the LBA 1990:
"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."
Policy Context
The development plan comprises the North Norfolk Core Strategy adopted in September 2008. While that preceded the National Planning Policy Framework published in March 2012 ("the NPPF"), it was common ground that the relevant policies were consistent with the NPPF and that full weight should be given to them.
The relevant policies in the Core Strategy were as follows:
i) Policy EN2, which required development proposals to demonstrate that their location, scale, design and materials will protect, conserve and where possible, enhance, inter alia, 'the special qualities and local distinctiveness of the area (including its historical, biodiversity and cultural character),' 'visually sensitive skylines, hillsides' and 'the setting of and views from historic parks and gardens.'
ii) Policy EN8 which provided that development proposals should preserve or enhance the character and appearance of designated assets and their settings and that development which would have an adverse impact on their special historic or architectural interest would not be permitted.
iii) Policy EN7, which dealt with renewable energy. As it is in issue in this application, I will set out the relevant part in full.
"Renewable energy proposals will be supported and considered in the context of sustainable development and climate change, taking account of the wide environmental, social and economic benefits for renewable energy gain and their contribution to overcoming energy supply problems in parts of the district.
Proposals for renewable energy technology, associated infrastructure and integration of renewable technology on existing or proposed structures will be permitted where individually, or cumulatively, there are no significant adverse effects on:
? the surrounding landscape, townscape and historical features/areas;
? residential amenity (noise, fumes, odour, shadow flicker, traffic, broadcast interference); and
? specific highway safety, designated nature conservation or biodiversity considerations.
…"
The justification for the policy included reference to the then Government policy for promotion and encouragement of renewable energy sources and that the Core Strategy aimed to include mitigating and adapting to the effects of climate change and encouraging renewable energy production. It continued:
"3.3.34. Policy EN7 is intended to increase the supply of renewable energy production in North Norfolk and contribute to regional targets. The production of renewable energy could also help alleviate energy supply problems in parts of the District.
3.3.35 There is, however, a need to ensure sufficient protection for the distinctive and sensitive landscape and environment in North Norfolk … All proposals should compliment the particular characteristics of the surrounding landscape and the Landscape Character Assessment will assist in assessing the impact of individual proposals."
Section 10 of the NPPF sets out the Government's policies for encouraging the use and supply of renewable and low carbon energy sources. In Section 11 it sets out policies for conserving and enhancing the natural environment, including valued landscapes. In Section 12 it deals with policies for conserving and enhancing the historic environment. As it is of particular relevance to the second ground in this application, I will set out the relevant paragraphs in full:
"131. In determining planning applications, local planning authorities should take account of:
• the desirability of sustaining and enhancing the significance of heritage assets putting them to viable uses consistent with their conservation; ….
132. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset's conservation. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification."
The NPPF then sets out the approach to be taken where a proposed development would cause substantial harm to or total loss of the significance of a designated heritage asset. It continues at paragraph 134:
"Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use…."
The NPPF defines a designated heritage asset as including listed buildings and registered parks and gardens.
The decision letter
As the application to a large extent turns on the approach taken by the inspector in determining the appeal, I will set out passages from the decision letter more extensively than might otherwise be the case. Having referred to the appeal proposal, at paragraph 2 he set out preliminary matters, including the role of the Core Strategy in the context of the 2004 Act. The inspector noted that due weight should be given to relevant policies of the Core Strategy according to their consistency with the NPPF.
At paragraph 3 he set out the main issues as:
"• The effect of the proposal on the character and appearance of the landscape.
• The effect of the proposal on the settings of historic assets.
• Other matters, including the effect of the proposal on living conditions, ecology, television and telecoms, and the local economy.
• The balance of public benefit and harm."
He dealt with his first issue relating to the character and appearance of the landscape at paragraphs 4 to 11, drawing attention at paragraph 4 to the character of the landscape as large expansive open gently rolling or undulating land with a large domed plateau and long uninterrupted views. The landscape character assessment draws attention to the fact that wind turbines could have severe impacts in certain areas specifically within the context of Cromer Ridge. He ...
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