R Mr William Corbett v Cornwall Council R Windpower Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis,Lord Justice Richards |
| Judgment Date | 12 December 2013 |
| Neutral Citation | [2013] EWHC 3958 (Admin) |
| Docket Number | Case No: CO/7605/2012,Case No: CO/11949/2008 |
| Court | Queen's Bench Division (Administrative Court) |
[2013] EWHC 3958 (admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lewis
Case No: CO/7605/2012
Ms S Sheikh and Mr D Graham (instructed by Sharpe Pritchard LLP) for the Claimant
Mr J Clay (instructed by Richard Williams, Head of Legal, Democratic and Procurement Services, Cornwall Council) for the Defendant
Mr V Fraser QC (instructed by Squire Sanders (UK) LLP) for the Interested party
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.
INTRODUCTION
This is a claim for judicial review of a decision of Cornwall Council ("the Council") to grant planning permission to the Interested Party, REG Windpower Ltd. ("the developer"), for five wind turbine generators with a maximum height of 100 metres, and related infrastructure, at Higher Denzell Farm, St Mawgan in Cornwall.
BACKGROUND
The Legislative and Policy Framework
Planning permission is required for development including, as here, development involving the erection of turbine generators: see section 57 of the Town and Country Planning Act 1990 ("the 1990 Act"). The provisions of section 70 (2) of that Act in force at the time, provided, so far as material, that that where an application for planning permission is made to a local planning authority, then:
"(2) 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,
…
(c) any other material considerations."
The development plan is defined in section 38(3) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"). Further, section 38(6) of that Act provides that:
"(6) 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".
The relevant development plan here included the Cornwall Structure Plan 2004 ("the Structure Plan") and the Restormel Borough Council Local Plan 2001–2011 ("the Local Plan"). National policy may be a material consideration to which a local planning authority may have regard when considering an application for planning permission. At the time that the Council resolved to grant planning permission on 22 September 2011, the relevant national planning policies relating to development generally, and renewable energy developments such as wind farms in particular, were contained in a variety of planning documents. These included Planning Policy Statements (referred to as a "PPS"), National Policy Statements (referred to as an "NPS") and other documents. Potentially relevant national policy documents in this case included (but were not limited to) PPS1 "Delivering Sustainable Development", the Supplement to PPS1 on Planning and Climate Change, PPS4 "Delivering Sustainable Growth", PPS7 "Sustainable Development In Rural Areas" and PPS22 "Renewable Energy". There was a Companion Guide to PPS22 which offered practical advice on how the policies of encouraging the appropriate development of renewable energy schemes in urban and rural locations were to be achieved. That gave advice, amongst other things, on how to approach applications for planning permission for renewable energy schemes including, in section 5, advice on how to assess issues of landscape and visual impact. There were also an Overarching National Policy Statement for Energy ("EN-1") and an NPS for Renewable Energy Infrastructure ("EN-3").
In September 2011, a Draft National Planning Policy Framework ("the Draft Framework") had also been published, but not then adopted, by the Department of Communities and Local Government.
The Application for Planning Permission
The application for planning permission was received by the Council on 28 February 2011. The application was accompanied by an Environmental Statement prepared in accordance with the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the EIA Regulations").
The application was the subject of comment and objections by local residents and others. Prior to consideration of the application, the developer entered into correspondence with bodies such as Natural England and English Heritage, individuals (or their representatives), and individual officers of the Council such as the conservation officer and the archaeological officer. The developer carried out further studies on certain matters, such as, for example, an archaeological trial trench. In essence, the developer sought to respond to the concerns that had been raised.
The Officer's Report
On 22 September 2011, the relevant Council Committee considered the application. The Committee had a report which had been prepared by officers prior to that meeting. That report identified the main issues as follows:
"The main issues concerning this application are i) the impact of the development on landscape character and the appearance of the surrounding area; ii) the cumulative impact of the proposed development along with the adjacent Bears Down Wind Farm and; iii) the extent to which the proposal would have a detrimental impact on the amenities currently enjoyed by the occupiers of nearby residential properties."
The report set out the international, European and national policies relevant to the consideration of renewable energy developments, including agreements to reduce emissions from greenhouse gases, and the aim of ensuring that a greater proportion of energy requirements would be met from renewable energy sources.
The report then considered the relevant national planning policies, including PPS22 and other planning documents which indicated that the environmental and economic benefits of renewable energy projects should be given significant weight as material considerations for the determination of planning applications. The report then considered the proposed development. The report referred to relevant Structure Plan polices which referred to facilitating or encouraging renewable energy schemes. The report also referred to, amongst others, Local Plan Policy 10 which says:
"(1) In determining renewable energy proposals the Council will have regard to their benefits, including the reduction of CO2 emissions.
(2) Proposals for renewable energy generation schemes such as wind, water and wave power, Biomass, Biogas, and energy produced from waste, will be permitted, unless they would cause demonstrable harm to designated or protected landscapes, habitats, features of heritage importance, Area of Outstanding Natural Beauty, Area of Great Landscape Value and the countryside in general.
(3) All renewable energy proposals will need to be capable of being constructed, operated and serviced without harm to the amenity of nearby habitations."
The report noted that previous targets for achieving a certain proportion of the energy required from renewable sources had been met and said this:
"As of September 2011 the County of Cornwall has achieved a collective total of 116 MW of installed electrical energy and 15MW of installed heat energy from a range of renewable energy developments (a further 157 MW of electrical energy and 136 MW of heat energy has been permitted in Cornwall though has yet to be 'installed' i.e. built; these figures result from the recent planning permission granted for large scale solar PV facilities as well as the Cornwall Energy Recovery Centre). The figure for installed electricity capacity in Cornwall would therefore confirm that the previously-set 2010 target for Cornwall as set out in the draft RSS has been met, albeit in 2011 after the target year. However, it is clear from Government advice (see extract from paragraph 4 of PPS22 below) that such targets should be interpreted as a minimum, and any future targets should be revised upwards to enable the further development of renewable energy developments where the potential exists:
"Targets should be reviewed on a regular basis and revised upwards (if they are met) subject to the region's renewable energy resource potential and the capacity of the environment in the region for further renewable energy developments. The fact that a target has been reached should not be used in itself as a reason for refusing planning permission for further renewable energy projects."
While a specific target for Cornwall has not been set for 2020, the broad thrust of policy in both national and local planning policy provides a 'direction of travel to secure, wherever appropriate and practicable, opportunities for additional renewable energy developments. The current data for installed and permitted but not installed electrical and heat energy in Cornwall is set out in the Appendix to this report."
The report summarised the responses that had been made during the consultation exercises and the objections that had been received The report then addressed the principle of the development and noted that there was strong support from national, regional and local level planning policies for the proposal in principle. Notwithstanding that, the report recognised that each application had to be assessed on its own individual merits and due regard given to other relevant material considerations. These were...
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