R (Hulme) v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 19 August 2010 |
| Neutral Citation | [2008] EWHC 637 (Admin),[2010] EWHC 2386 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2449/2007,CO/977/2010 |
| Date | 19 August 2010 |
[2008] EWHC 637 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Mitting
CO/2449/2007
Mr D Forsdick (instructed by Richard Burton Solicitors) appeared on behalf of the Claimant
Mr P Brown (instructed by Treasury Solicitors) appeared on behalf of the Defendant
This is a challenge under Section 288 of the Town and Country Planning Act 1990 to the decision of Mr David Lavender, dated 22nd March 2007, to grant on appeal planning consent for a development in Devon. The development was a nine 3-bladed horizontal access wind turbine farm with electricity transformers and associated works.
The farm was to be built on open agricultural land, at the south east of North Tawton and south west of Bow. As is apparent from the decision, the land is an attractive valley and the windfarm will cover a significant part of it.
The inspector allowed the developer's appeal against the refusal of the local planning authority, West Devon Borough Council, of consent for the development.
A number of issues were in play in the appeal. First, the contribution which the development would make to the generation of electricity, without the use of non-renewable fuels. Secondly, the impact upon the visual amenity of the countryside in the vicinity of the development. Thirdly, the impact upon people living near to it; and in particular, the impact caused by noise and by an effect called “shadow flicker”; the effect produced by the rotation of the blades through sunlight. The inspector decided that there would be a material contribution to Devon's contribution to renewable energy supplies. He applied a nationally and locally accepted test of the installed capacity which he assessed at 18-megawatt hours, by comparison with the target intended by Devon of 151-megawatt hours by 2010. There is a challenge to that aspect of his decision. He determined that there would be an impact on the visual amenities of and around the site, and upon the historic landscape, but concluded that the adverse impact would be outweighed by the economic benefit of the development.
The applicant in this claim, Mr Hulme, is the owner and occupier of a house just under two thirds of a mile from the outer edge of the proposed windfarm, called Coxmoor. He objected to the application when it was determined at local planning authority level, both on general grounds and on the specific impact which he believed would occur; in particular, from noise at his house. As is required by the environmental impact regulations, the developer produced an environmental impact assessment which dealt with, amongst other issues, noise. Measurements were taken over several days at varying wind speeds to demonstrate the background noise at various places on and around the site, and in particular at Coxmoor.
The local planning authority did not reject the application for planning permission on noise grounds. Mr Hulme maintained his objection on noise grounds and other grounds at the appeal. One topic of particular concern to him was his wish to see the raw data upon which the figures and graphs and diagrams had been produced, to illustrate the measurements of background noise made in the environmental impact statement.
The developer refused to produce the raw data for a variety of reasons, which for myself I find thoroughly unconvincing. First, commercial confidentiality; it is difficult to see how there could conceivably be any commercial confidentiality in the matter of wind noise anywhere, let alone on this site. Secondly, that Mr Hulme, unaided, would not understand them; that may well be so, but he had indicated a willingness to obtain expert advice to permit him to do so. Thirdly, that the developer was unwilling to spend professional time and cost in assisting Mr Hulme to understand the raw data; that too was not a sensible argument, because all that he sought was the data itself and not any explanation of it.
The developer's attitude to the disclosure of this information, as can readily be understood, might excite suspicion as to their motive in insisting that it would not be disclosed.
Mr Forsdick, who appears today for Mr Hulme, submits that the denial of access to the raw data was a denial of natural justice to Mr Hulme such as, in the end, to vitiate the decision made by the inspector on the question of noise. He accepts that there is no traditional natural justice challenge here because the inspector did not see the raw data either, and so did not take into account anything that was not made available to Mr Hulme.
What the inspector did was to decide in a single sentence that he was satisfied that the background noise had been appropriately measured. He made that decision against a number of pieces of information. First of all, there is a 1996 paper prepared by the energy technical support unit for the then DTI which sets out how noise, in particular background noise, should be measured. It is not necessary for me to go into the detail of the methodology proposed, but all that need be noted is that in measuring noise, the measurer should take care to exclude the transient noise externally caused, which does not truly form part of the general background noise. For example, those seeking to measure background noise should exclude the noise of aircraft or hedge trimmers or mechanical devices of that kind.
Secondly, the inspector had the environmental impact statement itself, which set out in considerable detail and in tabular form the measurements which had been achieved. Paragraph 9.5.2 of the statement noted that:
“Data had been filtered and instances of unexpected peaks removed.”
Accordingly, on its face, the environmental impact statement asserted that the steps recommended by the ETSU and which were of concern to Mr Hulme had been taken.
Mr Hulme's concern was that in measuring background noise, such externally influenced peaks had not been taken into account. He raised that issue before the local planning authority; he raised it with the expert, an independent expert instructed on behalf of the developer, Dr Bullmore. Dr Bullmore's report, which was read as undisputed evidence at the inquiry, was to the effect that he had himself checked the methodology used by the measurers and was satisfied that the assessment was undertaken in accordance with the methodology set out in the ETSU report; see paragraphs 2.2 and 2.3 of Dr Bullmore's report.
He said in terms in paragraph 7.2:
“All operational windfarm noise impact assessments have been undertaken in accordance with the guidance and procedures set out in the relevant documents,”
which he then identifies.
Accordingly, the inspector had before him not only Mr Hulme's objection that he had not seen the raw evidence, but three pieces of evidence which indicated that the measurement of background noise had been properly undertaken.
The inspector had no power to order the developer to disclose the raw data to Mr Hulme. He could have adjourned the hearing to permit that to be done and, if the raw data was not disclosed, could have drawn an adverse inference from the refusal to disclose it. But in the event, no application was made to him by Mr Hulme for an adjournment.
What Mr Hulme did was to speak to Dr Bullmore, and in a note of his discussions with him dated 29th November 2006, the penultimate day of the hearing of the appeal, he noted that Dr Bullmore had informed him that:
“So-called 'infrequent noise' such as flail hedge trimming is supposed to be eliminated from the recorded data before deriving the permissible noise emission limits. Dr Bullmore informed me that these types of noise are eliminated by, firstly, comparing the day and nighttime data and then manually removing anomalies. There is an element of subjectivity in this process.”
In one respect, Mr Hulme noted Dr Bullmore's agreement that the background noise in fact noted in October would be unrepresentative of background noise in the summer. A brook runs past Coxmoor; it is dry in the summer, but not in October. Accordingly, as Mr Hulme noted in paragraph 4 of his note, he and Dr Bullmore agreed that the minimum background noise during quiet periods would typically be around 16-18 dB(A), rather than the measured 22 dB(A).
There is no doubt that this issue was of importance in the appeal, because in due course it became the subject of a detailed condition; condition 13, to which I will refer shortly. In hindsight, it would have been better if the inspector had set out his reasoning on this aspect of the appeal in somewhat fuller terms than he did. But in fairness to him, he had a great deal to grapple with and his decision is, in all other respects, a model of thoroughness and clarity. But as regards this issue, all that he said was:
“Having reviewed the submissions, I am content that the background noise levels have been suitably established in accordance with ETSU-R-97 methodology and that the calculations in the environmental statement, even after the modification according to the rebuttal evidence, indicates that an acceptable noise environment will prevail, both at this property and by extrapolation at others more distant from the proposed turbines.”
In addition therefore to the natural justice challenge, there is a reasons challenge which Mr Forsdick has elaborated. The law on this topic is uncontroversial and is...
To continue reading
Request your trial
-
R (Hulme) v Secretary of State for Communities and Local Government
...refused [2011] EWCA Civ 638 [2010] EWHC 2386 (Admin)" class="content__heading content__heading--depth1"> [2011] EWCA Civ 638 [2010] EWHC 2386 (Admin) IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT MS FRANCES PATTE......
-
Sustainable Shetland For Judicial Review Of A Decision Of The Scottish Ministers Dated 4 April 2012
...those duties were in substance complied with under reference to Hulme v Secretary of State for Communities and Local Governments [2010] EWHC 2386 (Admin). [196] It is submitted that the respondents paid due regard to their obligations under the Directive and to the precautionary principle. ......
-
Paul Bova+carol Christie V. The Highland Council+bdw East Scotland Limited
...EWHC 3261 (Admin); [2006] 2 P. & C.R. 28; R (on the Application of Hulme) v Secretary of State for Communities and Local Government [2010] EWHC 2386 (Admin); Kides (supra); and Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, 2012 SLT 739 (particularly at paragraphs [18] and [19]). Co......
-
South Northamptonshire Council and Another v Secretary of State for Communities and Local Government and Another
... ... He submits that a similar approach was adopted by the High Court in considering ETSU in Lee v SSCLG [2011] EWHC 807 (Admin) and in Hulme v SSCLG [2010] EWHC 2386 (Admin) ... 80 He says that it follows that compliance with ETSU-derived noise limits cannot amount to the only relevant consideration and that it was necessary, either in principle or within the context of the particular determination to be ... ...