R Graham Williams v Powys County Council Colin Bagley (Interested Party)

JurisdictionEngland & Wales
JudgeMr C M G Ockelton,C M G Ockelton
Judgment Date07 March 2016
Neutral Citation[2016] EWHC 480 (Admin)
Docket NumberCase No: CO/3140/2015
CourtQueen's Bench Division (Administrative Court)
Date07 March 2016

[2016] EWHC 480 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)

Case No: CO/3140/2015

Between:
The Queen on the application of Graham Williams
Claimant
and
Powys County Council
Defendant

and

Colin Bagley
Interested Party

Mr Richard Harwood QC (instructed by Richard Buxton Solicitors) for the Claimant

Ms Clare Parry (instructed by the Local Authority) for the Defendant

Mr James Corbet Burcher (instructed by Margraves Solicitors) for the Interested Party

Hearing date: 12 November 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.

Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)

C M G Ockelton

Introduction

1

At Upper Pengarth, Llandeilo Graban, near Builth Wells in Powys, is an agricultural holding farmed by Mr Bagley. He has for some time been proposing to erect a wind turbine on his land in order to provide a secure and sustainable power source for the farm, releasing surplus electricity to the national grid. The farm is in hilly country and the proposed site of the turbine is on the side of a hill, called 'The Garth', but it will be near the top: the top of the turbine will be above the top of The Garth. The height of the proposed turbine to the nacelle is 30.1 metres, and the height to the tip of a blade rising vertically from the nacelle is 41.8 metres.

2

Planning permission for the turbine was granted by Powys County Council, the defendant, as the local planning authority, on 21 May 2015. The grant was in response to an application by Mr Bagley, who is the interested party in these proceedings, and whom I shall call 'the applicant'. The claimant, who seeks the quashing of the planning permission, is Mr Williams, a local resident who operates leisure activities in the area.

3

The applicant has made two applications for planning permission for a wind turbine. The first was granted on 4 December 2013. It too was the subject of proceedings in this Court in which Mr Williams was the claimant. The claim was settled because the defendant agreed that in making its decision it had failed properly to consider all limbs of relevant policy and in particular had failed to consider the cumulative effect of the development proposed by Mr Bagley together with other similar applications, from other applicants, of which it had notice. The planning permission was thus quashed by consent. The applicant did not proceed with that application (apparently at the defendant's request) but made a new application. Like the former application, it was the subject of objections from local residents, expressed in writing and by oral representation at the meeting of the defendant's planning committee. But, as I have said, planning permission was granted.

4

This claim was filed on 2 July 2015. Permission was granted on the papers by Cranston J, the date of his order being 19 August 2015. He classified the claim as an Aarhus claim as requested, and observed that 'the impact of the turbine on heritage assets deserves an airing in court'. Shortly before the hearing the applicant, who had not put in an acknowledgment of service, sought permission to take part by skeleton argument and short oral submissions. There being no objection, I granted him permission at the hearing.

5

One factor in the claim, which was mentioned in the skeleton argument of Mr Harwood QC for the claimant but not pursued with any vigour before me, relates to the precise siting of the turbine. Permission was originally sought on the basis that the defendant would allow 'a degree of micrositing … to the extent of a 25–50 m radius from the reference point stated'. Mr Harwood noted that the 'precise siting is uncertain' meaning that the impact of the development was uncertain, because as the site is on a hill relatively small changes in location might have a considerable impact on visibility. The position is, however, that the grant of planning permission is in relation to a specific site without reference to micrositing, and is subject to the condition of the defendant's approval of the exact location and a requirement of strict compliance with the arrangement so approved.

6

The claimant puts forward three grounds for saying that the decision to grant planning permission was unlawful. The first is that in making its decision the defendant failed to have regard to the effect of the proposed development on a listed building. The second is that the defendant failed to consult CADW. The third is that the defendant failed to appreciate that the proposed development would affect scheduled ancient monuments in addition to those the effect on which it did take into account.

Ground 1

The issue

7

Llanbedr church, which is listed grade II*, is about 1.5 km from the site, although the bulk of The Garth lies between. The applicant's Planning, Design and Access Statement, which formed part of the application for planning permission, recognised the position of the church as being within 2 km of the site, but wrongly described the listing as grade II. That Statement noted that the ZTV (Zone of Theoretical Visibility) analysis indicated that all the heritage assets listed, including Llanbedr church, 'may be afforded views of the blade tip and at times the nacelle' of the turbine, but 'potential impacts are likely to be minor at most'. It pointed out that ZTV maps tend to overestimate visibility because they ignore natural or built features, representing only the lie of the land. It asserted that 'the effect on the views and settings of the listed structures and monuments is considered to be slight', and pointed out that the defendant had previously agreed with that analysis in granting the previous planning consent.

8

The defendant Council's Built Heritage section did not make any input to the process of consideration of the planning application, and the planning officer's assessment on cultural heritage made no reference to the church or to any listed buildings, although the report refers to the Council's policy ENV 14 on listed buildings.

9

Before the grant of planning permission nobody appears to have suggested, either in relation to the present application or its predecessor, that the church or its setting would be affected by the development, although there were generalised comments about the effect of the development on heritage assets. When the issue was raised after the grant of planning permission, the Council's Built Heritage Officer visited the locality and wrote a report dated 30 July 2015. She did not consider that the turbine would be visible from the church or the churchyard, or that 'the setting of [sic: 'or' may have been intended] the short term views of the church' would be affected'. She said that there was no medium range view that could encompass the church and the turbine, and so the medium range views of the church would not be affected by the turbine. It being now said that both church and turbine would be visible from the Begwns, a well-known beauty spot about 2km from the church, she considered that point but said that 'given the distance, topography and vegetation between the proposed turbine and the church, and the trees surrounding the churchyard, I would not consider that the long range setting of the listed building would be affected by the proposal'. In an email of 27 July 2015 the Clwyd-Powys Archaeological Trust (CPAT) said that 'there are no significant visual effects' on the church.

Statute and policy

10

Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides that

"In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority … 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."

11

In East Northamptonshire DC v Secretary of State for Communities and Local Government [2014] EWCA Civ 137 Sullivan LJ reminded himself that 'preserving' in this context means 'doing no harm to' (South Lakeland DC v Secretary of State for the Environment [1992] 2 AC 141) and after a further review of the authorities held at [24] that "Parliament in enacting s 66(1) did intend that the desirability of preserving the settings of listed buildings should not simply be given careful consideration by the decision-maker for the purpose of deciding whether there would be some harm, but should be given 'considerable importance and weight' when the decision-maker carries out the balancing exercise." Thus, the particular duty under the section has a role both in identifying any harm and in weighting the balance to be struck between the harm and the desirability of the development. The assessment of whether there is likely to be harm to the setting of a listed building is a matter for the decision-maker's own planning judgment: R (Forge Field Society) v Sevenoaks DC [2014] EWHC 1895 (Admin) at [49], [50] and [54]. So when there has been a proper investigation of the possibility of harm and none has been found, the officer's report does not need to go further than that: R (Carnegie) v Ealing LBC [2014] EWHC 1895 (Admin) at [58] (a permission decision but clearly entitled to the highest respect).

12

In the Powys Unitary Development Plan, paragraph 4.5.21 states that "When considering...

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