R John Plant v Pembrokeshire County Council Princes Gate Spring Water (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 04 March 2014 |
| Neutral Citation | [2014] EWHC 1040 (Admin) |
| Docket Number | CO/11605/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 March 2014 |
[2014] EWHC 1040 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Cardiff Civil Justice Centre
Park Street
Cardiff
CF10 1ET
Mr Justice Hickinbottom
CO/11605/2013
and
Mr Richard Harwood QC (instructed by Richard Buxton Environmental and Public Law) appeared on behalf of the Claimant
Mr R Taylor (instructed by Claire Incledon, Pembrokeshire County Council Legal & Committee Services) appeared on behalf of the Defendant
The Interested Party did not appear and was not represented
On 9 July 2013 the Defendant planning authority ("the Council") granted the Interested Party ("Princes Gate") planning permission for the erection of two wind turbines on land at New House Farm, Ludchurch, Narberth, Pembrokeshire ("the Site"). New House Farm is an organic dairy farm, but is also the home of a spring water bottling plant, which has recently installed a machine to blow its own bottles that requires substantial electricity for its operation. Princes Gate applied for permission to construct its own wind turbines with a view to reducing its energy costs, and becoming operationally carbon neutral. The proposed turbines are "medium scale", with a hub height of about 60m, a rotor diameter of 53m and a maximum tip height of 86.5m; and the development includes various ancillary works such as an access track, transformers and underground cabling.
The Claimant lives near the Site, and is part owner of a nearby ancient monument, the Castell Meherin Iron Age fort.
The History of the Application
Princes Gate made the application for planning permission on 12 October 2011.
There were a number of objectors, including the Claimant. The Site is near several ancient monuments — the Castell Meherin scheduled monument is 100m away; the Parc-y-Gerrig standing stone, 150m; the Newhouse group of Bronze Age barrows, 600m; and the Blaengwaith-Noah camp, 800m — and the objectors included the Council's own archaeological advisers, the Dyfed Archaeological Trust.
On 18 November 2011, in response to a request, the Council issued a screening opinion, to the effect that the development did not require an environmental impact assessment ("EIA").
Planning permission was granted by the Council's Planning and Rights of Way Committee ("the Committee") on 17 September 2012. However, the Claimant issued judicial review proceedings (Claim No CO/129491/2012) challenging the decision on several bases, including the ground that the officer's report (and, in its turn, the Committee who effectively adopted the report) had failed properly to interpret Policy 84 of the then-current Joint Unitary Development Plan for Pembrokeshire 2000–2016, and had thus approached a material issue incorrectly. The report said that there was compliance with that policy because, although it concluded that there was medium adverse impact on schedule monuments, this was not significant. However, Policy 84 provided that, "Development which adversely affects important archaeological remains and/or their settings will not normally be permitted", i.e. it required any adverse impact on historical sites to be treated as significant. The Council accepted that the Committee had erred in law, and subjected to judgment on that basis. The September 2012 planning decision was quashed.
Further screening opinions were issued by the Council on 18 January 2013 (incorrectly dated 2012) and 13 February 2013. Each concluded that the development did not require an EIA.
The Committee reconsidered planning permission at their meeting on 21 May 2013, and determined to allow the application, that permission being issued on 9 July 2013. It is that grant of permission that is now challenged.
The Grounds
Mr Richard Harwood QC for the claimant relies on two grounds, as follows:
Ground 1: The Committee misunderstood and misapplied the relevant local plan.
Ground 2: The third (and effective) EIA screening opinion was inadequate and unlawful in three respects. First, it failed to take into account a relevant criterion, namely the presence of landscapes of historical, cultural and archaeological significance. Second, in respect of various impacts, the EIA screening checklist for the opinion failed properly to apply the statutory test of "likely significant effect". Third, the opinion is irrational and its reasoning unintelligible (and, hence, inadequate), because the screening checklist contradicts the screening opinion itself.
On 22 October 2013, His Honour Judge Jarman QC granted permission to proceed on Ground 1 and the first limb of Ground 2. The other two limbs of Ground 2 — which appear to me to be discrete grounds — appeared first in the Claimant's Reply. However, no point is taken by the Mr Reuben Taylor for the Council as to lateness. Therefore, I propose to deal with the merits of these grounds in turn. Other grounds previously relied upon by the Claimant are no longer pursued.
Ground 1: The Local Plan
As his first ground, Mr Harwood submitted that the officer's report upon which the Committee based their decision to grant planning permission was flawed, because it misunderstood and misapplied relevant provisions of the local development plan.
The legal propositions relevant to this ground are well-established.
(i) Section 70(2) of the Town and Country Planning Act 1990 provides that, in dealing with an application for planning permission, a planning authority must have regard to the provisions of "the development plan" (defined by section 38 of the Planning and Compulsory Purchase Act 2004 to include adopted local plans), as well as "any other material consideration". However, the development plan is not just a material consideration like any other. 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."
Therefore, section 38(6) raises a presumption that planning decisions will be taken in accordance with the development plan; but that presumption is rebuttable by other material considerations.
(ii) Whilst a planning decision-maker must take into account all material considerations, the weight to be given to such considerations is exclusively a matter for planning judgment for that decision-maker, who is entitled to give a material consideration whatever weight, if any, he considers appropriate, subject only to his decisions not being irrational in the sense of Wednesbury unreasonable (Tesco Stores Ltd v Secretary of State for Environment [1995] 1 WLR 759 at page 780F-G per Lord Hoffmann; and Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 at [19] per Lord Reed). The courts consequently leave such decisions to be made by the appointed decision-makers — who are democratically elected bodies or persons accountable to such bodies — on the basis of guidance promulgated by the Secretary of State, the Welsh Ministers and the local authorities themselves (see, e.g. R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 at [60] per Lord Nolan [69] and [129] per Lord Hoffmann and [159] per Lord Clyde); and R (Morge) v Hampshire County Council [2011] UKSC 2 at 366 per Baroness Hale).
(iii) A decision-maker must interpret policy properly, the true interpretation of policy being a matter of law for the court ( Tesco v Dundee at [17]–[19] per Lord Reed)). Where a decision-maker has misunderstood or misapplied a plan or policy, that may found a challenge to his decisions, if it is material, i.e. if his decision would or might have been different if he had properly understood and applied the guidance.
(iv) However, development plans set out broad policy guidelines, often framed in language that requires the exercise of judgment when applied to any particular set of facts. The exercise of judgment inherent in such policy is, like any matter of planning judgment, for the relevant planning authority; and can only be challenged on the ground that it is irrational or perverse.
(v) Whether a proposal is "in accordance with the plan" for the purposes of section 38(6) will depend on all the circumstances of the particular case, which itself requires an exercise of judgment within the realm of the planning authority (R (Cummings) v Camden London Borough Council [2001] EWHC 1116 (Admin) at [164]–[165] per Ouseley J). Almost inevitably, any planning application will engage a number of policy strands, which may well not pull in the same direction, or indeed may well clearly pull in very different directions. Those circumstances were helpfully considered recently by Lewison LJ in R (TW Logistics) v Tendring District Council [2013] EWCA Civ 9 at [18]. After considering the relevant passage from Lord Reed's judgment in Tesco v Dundee, he said that it had two consequences for the case before him, which are relevant also to this case:
"First, we must not adopt a strained interpretation of the Local Plan in order to produce complete harmony between its constituent parts. Second, we must be wary of a suggested objective interpretation of one part of the Local Plan as having precedence over another. In a case in which different parts of the Local Plan point in different directions, it is for the planning authority to decide which policy should be given greater weight in relation to a particular decision. This, in...
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