Powys County Council v The Welsh Ministers (First Defendant) Res Uk & Ireland Ltd (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 16 November 2015 |
| Neutral Citation | [2015] EWHC 3284 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 November 2015 |
| Docket Number | Case No: CO/2949/2015 |
[2015] EWHC 3284 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Cardiff Civil Justice Centre
The Honourable Mr Justice Lewis
Case No: CO/2949/2015
and
Tom Cosgrove and Robert Williams (instructed by Legal Services, Powys County Council) for the Claimant
Morag Ellis Q.C. (instructed by Director of Legal Services, Welsh Government) for the First Defendant
Gordon Nardell Q.C. ( instructed by Squire Patton Boggs (UK) for the Second Defendant
Hearing dates: 22 October 2015
(Sitting at Swansea Civil Justice Centre)
INTRODUCTION
This is an application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") for an order quashing a decision of the First Defendant, the Welsh Ministers, contained in a letter dated 14 May 2015. By that decision, the Welsh Ministers allowed an appeal by the Second Defendant, RES (UK & Ireland) Ltd. ("the developer") against a refusal of planning permission by Powys County Council ("the Council") for the erection of 17 wind turbines and associated infrastructure on land at Garreg Lwyd Hill, between Felindre and Llanbadarn Fynydd, Llandrindod Wells, Powys ("the site").
Developments, such as that in the present case, which involve wind turbines with a generating capacity of 50 megawatts or less, require the grant of planning permission by the local planning authority under the provisions of the 1990 Act. If the local planning authority refuse permission, the developer may appeal to the Welsh Ministers (who form part of the Welsh Government).
Onshore wind turbines with a generating capacity of more than 50 megawatts are defined as nationally significant infrastructure projects and require development consent which is granted by the Secretary of State for Energy and Climate Change, who is a member of the United Kingdom government, pursuant to the Planning Act 2008 ("the 2008 Act").
In essence, the Council contend that the Welsh Ministers should have treated certain provisions of a National Policy Statement known as EN-1 Overarching Policy Statement for Energy ("EN-1") made by the Secretary of State pursuant to section 5 of the 2008 Act as a material consideration for the purposes of disposing of the appeal in the present case or at the very least were not precluded from doing so. The relevant provisions of EN-1 provide, amongst other things, that development consent for a nationally significant infrastructure project which causes substantial harm to scheduled archaeological monuments ("SAMs") should only be granted in exceptional circumstances. The Welsh Ministers considered that the provisions of EN-1 were not relevant to the determination of the appeal against the refusal of planning permission for the proposed development. In addition, the Council also contends that the decision was unlawful for other reasons, including a failure to give the Council the opportunity to comment on the applicability of EN-1, a failure properly to apply the material provisions of Planning Policy Wales ("the PPW") and a failure to give adequate reasons for granting permission without there being in place a mechanism for securing the funding of the decommissioning or restoration works on the expiry of permission for the development.
THE FACTS
The Application for Planning Permission
The developer applied to the Council for planning permission to erect 23 wind turbines on the site. Planning permission was refused by the Council on the basis that the development was contrary to the relevant statutory development plan, namely the Powys Unitary Development Plan ("the UDP"), the PPW and Technical Advice Note 8: Planning for Renewable Energy ("TAN 8") (both issued by the Welsh Government) and EN-1. The developers appealed to the Welsh Ministers. An inspector was appointed to hold an inquiry and report to the Welsh Ministers. The Welsh Ministers directed, however that the appeal be determined by the Welsh Ministers, rather than by the inspector herself, as the proposed development was considered to be a major development which could have wide effects beyond the immediate locality. At some stage, the scheme was amended and the number of wind turbines proposed was reduced from 23 to 17. The appeal in relation to this proposed scheme is referred to in the inspector's report and the decision letter as Appeal A. There was an associated appeal, referred to as Appeal B. This application is not concerned with Appeal B.
The Inspector's Report
The inspector held an inquiry and duly reported. In a section entitled "Planning Policy", the inspector identified the most relevant national policy and advice as being PPW and TAN 8. She correctly identified the statutory development plan as the UDP. The primary policy in the UDP against which the appeal was to be judged was Policy E3. That policy was generally supportive of proposals for wind farms subject to certain criteria including the development not having an adverse effect either individually or cumulatively on certain specified matters such as environmental and landscape. Policy E3 required that the development should not unacceptably impact on any buildings or features of conservation and archaeological interest. This section of the report also deals with other policies in the UDP. The section referred to the draft local development plan but, as that was in the early stages of preparation and adoption, no material weight was given to that document. The section does not refer to EN-1 or any other policies of the United Kingdom government.
The report records the cases for the developer, the Council and other persons or bodies. It sets out what the inspector considered were the main issues which included the effect of the development on SAMs and listed buildings. The report then analyses the issues in turn. There is a section dealing with cultural heritage. The inspector acknowledged that the proposed development would not have any direct physical effects on any heritage assets but considered that regard had to be had to the effect of the development on the setting of known heritage assets. Heritage assets include SAMs and listed buildings. The inspector considered that the degree of harm would vary and the effect on most of the heritage assets was described as being "less than substantial". By way of example, in relation to Windy Hill Barrow, the inspector found that the development would cause only moderate harm. In three cases, Castell y Blaidd, Coventry Barrow and Ty'n y Ddol Hill Barrow, the development would cause substantial harm. At paragraph 207 of the report, the inspector summarised her view as on the cultural heritage issue in the following terms:
"207. I note the lack of objection from Cadw and the Clwyd Powys Archaeological Trust and I consider that the development would cause less than substantial harm to most of the SAMs and LBs in the immediate vicinity of the appeal site. However, I have identified substantial harm from the appeal proposal to the setting of three SAMs Castell y Blaidd, Coventry Barrow and Ty'n y Ddoll Barrow, such that the development conflicts with Policies E3, SP3, SP12 and ENV17 of the UDP, TAN 8, PPW and EN-1."
Having considered all the individual issues, the inspector then considered the planning balance and reached an overall conclusion. The material part of her report is in the following terms:
"241. The proposal would make a contribution towards the UK's target of 15% of energy to be derived from renewable resources by 2020 and the WG's aim of having 2GW in total capacity by 2015/2017, although it would come towards the end of that target period. The planning system has an important role in delivering the above target and aim with the latter to be achieved by, amongst others, optimising the use of the existing SSAs. Nonetheless TAN 8 recognises that not all the land within the SSAs may be environmentally suitable for major wind power proposals and the Minister's letter of July 2011 confirms that all SSAs have a finite environmental capacity and output should not exceed the maximum levels outlined. In isolation, the development would not exceed the target for SSA C, but it may be exceeded if other wind farms under consideration are permitted in advance of a decision on this appeal.
242. A balance needs to be struck between the benefits of generating electricity from renewable onshore wind and the identified impacts of the scheme on the landscape character and visual amenity of the area, the setting of the SAMs and LBs and other matters raised in evidence.
243. Although in respect of landscape character and visual amenity I consider that the development would cause harm, in TAN 8 there is an implicit objective to accept significant change in landscape character. I consider that the degree of change to the landscape, and as a consequence visual amenity, that would be brought about by the development on its own would be consistent with the aims of TAN 8. However, in combination with other similar development the balance may be tipped over into unacceptability. I am also satisfied that, subject to conditions, the development would be satisfactory with regard to noise and ecology.
244. I have identified substantial harm from the development to the setting of the SAMs Castell v Blaidd, Coventry Barrow and Ty'n y Ddoll Barrow which would be in conflict with policies of the development plan. Moreover the identification of harm to the settings of the Cwm y Hob LBs is of considerable importance and merits weight...
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