R (on the application of Graham Williams) v Powys County Council Colin Bagley (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Irwin |
| Judgment Date | 09 June 2017 |
| Neutral Citation | [2017] EWCA Civ 427 |
| Docket Number | Case No: C1/2016/1419 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 June 2017 |
— and —
[2017] EWCA Civ 427
Lord Justice Lindblom
and
Lord Justice Irwin
Case No: C1/2016/1419
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR C.M.G. OCKELTON (SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Harwood Q.C. (instructed by Harrison Grant Solicitors) for the Appellant
Ms Clare Parry (instructed by Powys County Council Legal Services) for the Respondent
Mr James Corbet Burcher (instructed by Margraves Solicitors) for the Interested Party
Hearing date: 9 March 2017
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
Did a local planning authority, when granting planning permission for a wind turbine, fall into error by failing to consult the Welsh Ministers upon the likely effects of that development on the settings of two scheduled monuments? And did it err in failing to consider the likely effects on the setting of a grade II* listed church? The judge in the court below saw no such error. We must decide whether he was right.
By a claim for judicial review the appellant, Mr Graham Williams, challenged the decision of the first respondent, Powys County Council, on 21 May 2015, to grant planning permission for the erection of a wind turbine on the farm of the interested party, Mr Colin Bagley, at Upper Pengarth, Llandeilo Graban. The site is in the Radnor Hills, about 10 kilometres to the south- east of Builth Wells. Mr Bagley was the applicant for planning permission, Mr Williams a local resident who had objected to the proposal. Mr Williams' claim for judicial review was issued on 2 July 2015. It was dismissed by Mr C.M.G. Ockelton, Vice President of the Upper Tribunal (Immigration and Asylum Chamber), sitting as a deputy judge of the High Court, on 11 March 2016. I granted permission to appeal on 15 August 2016.
The wind turbine was erected in July and August 2016. It stands on the side of a hill called "The Garth", on a site of 0.2 hectares. It is 30.1 metres in height to the hub, 41.8 metres to the blade tip. The electricity it produces is used by Mr Bagley on his farm, the excess transmitted to the grid. On the other side of the hill, about 1.5 kilometres from the wind turbine, is Llanbedr Church, a grade II* listed building. There are also several scheduled monuments in the surrounding area, the nearest two being Llandeilo Graban Motte (also known as Castle Mound), which is 1.4 kilometres to the south-west, and Llanbedr Hill Platform House, 1.9 kilometres to the north- east.
The issues in the appeal
Mr Williams has permission to appeal on two grounds. The issue in the first is whether, contrary to the judge's conclusion, the county council failed to comply with the requirement under the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 ("the Development Management Procedure Order 2012") to consult the Welsh Ministers on applications for planning permission for "[development] likely to affect the site of a scheduled monument", because that requirement applied to development likely to affect the setting of, or "otherwise have a visual impact on the site of", a scheduled monument. The issue in the second ground is whether the county council erred in failing to perform the duty in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Listed Buildings Act") – to have special regard to the desirability of preserving the setting of a listed building. And if it did, is it "highly likely" that the outcome would not otherwise have been "substantially different"?
In a respondent's notice the county council maintains that if we were to conclude on the first ground of appeal that the Welsh Ministers ought to have been consulted, it is highly likely that the decision would now be the same – in particular, because under the provisions for consultation in the Development Management Procedure Order 2012, as now amended, the need to consult would not arise.
The Planning, Design & Access Statement
In December 2013 the county council had granted planning permission for a wind turbine on the same site. Mr Williams successfully challenged that decision – on grounds different from those with which we are concerned here – and the planning permission was quashed, by consent, on 2 April 2014. The application for planning permission with which these proceedings are concerned was submitted to the county council on 9 September 2014.
In the Planning, Design & Access Statement, prepared by Urban Wind, which accompanied the application, the section dealing with "Cultural Heritage Constraints" said this:
"In order to ensure that potential impact upon Cultural Heritage elements in the local area are [sic] limited to an acceptable level the original development was specifically sited so as to ensure that it is not set within a clear visual context of the following: –
– World Heritage Sites
– Scheduled Ancient Monuments
– Listed Buildings
– Conservation Areas
Prior to progressing this submission, a desktop review of all previously submitted information and a further assessment of the sensitivity of any nearby designations has been undertaken using online resources and Local Planning Authority data.
Using Cadw it was possible to ascertain that there are a number of scheduled ancient monuments and a Grade II [sic] Listed Building within 2km of the site. There are no conservation areas or Grade I Listed Buildings within the locale.
Whilst the ZTV [i.e. zone of theoretical visibility] production associated with the subject proposal highlights that all the identified historical assets listed below may be afforded views of the blade tip and at times the nacelle of the proposed turbine potential impacts are likely to be minor at most. It should be noted that ZTV maps tend to over-estimate the extent of visibility and does not take account of natural or built features.
Due to the level of screening, the undulating topography, the distance that the majority of listed assets are located from the proposed turbine location, and in light of the limited scale of the turbine itself, the effect on views and setting of the listed structures and monuments is considered to be slight. No further mitigation is therefore considered to be necessary.
We would also take this opportunity to reiterate that the LPA have previously agreed with this analysis in issuing their initial consent. Given that the principle of the proposal remains the same we would expect a similar verdict in the consideration of this application."
Following that text, Figure 12 listed four "Cultural Heritage Assets". We are not concerned with the first, which was Llewetrog Field Boundary. As for the second, the scheduled monument known as Llandeilo Graban Motte (or Castle Mound), the "Orientation" was given as "1.4km to SSW of site", the "Receptor Sensitivity" was said to be "Low", the "Magnitude of Change" was assessed as "Slight", and the "Effect" as "Minor". For the third, the scheduled monument known as "Llanbedr Hill Platform House", the "Orientation" was given as "1.9km to NE of site", the "Receptor Sensitivity" was said to be "Low", the "Magnitude of Change" was assessed as "Negligible" and the "Effect" as "Minor/Negligible". And for the fourth, "Llanbedr Church" – the grade II* listed Church of St Peter at Llanbedr, wrongly described here as a grade II listed building – the "Orientation" was given as "1.5km to E of site", the "Receptor Sensitivity" was said to be "Low/Medium", the "Magnitude of Change" assessed as "Negligible", and the "Effect" as "Minor/Negligible".
The planning officer's reports to committee
The application was considered by the county council's Planning, Taxi Licensing and Rights of Way Committee: first on 9 April 2015, and then, after further ecological information had emerged, on 21 May 2015.
In her report to the committee for its meeting on 9 April 2015, the county council's planning officer, Ms Gemma Bufton, recommended "conditional approval".
The officer recorded that "No response …" to consultation had been received from "PCC – Built Heritage". Clwyd-Powys Archaeological Trust ("CPAT") had responded "to confirm that there are no archaeological implications for the proposed single turbine development at this location". The consultees to which the officer referred did not include the Welsh Government's historic environment service, Cadw. 45 letters of objection had been received. In her summary of those objections the officer did not refer to any concerns about the likely effects of the development on heritage assets.
In a lengthy list of relevant national and development plan policies she included Planning Policy Wales (2014), Policy ENV14 – Listed Buildings, and Policy ENV17 – Ancient Monuments and Archaeological Sites of the Powys Unitary Development Plan (2010) ("the UDP"), Welsh Office Circular 60/96 – Planning and the Historic Environment: Archaeology, and Welsh Office Circular 61/96 – Planning and the Historic Environment, Historic Buildings and Conservation Areas.
As for the "Principle of Development", the officer's advice, in the light of the policies in Planning Policy Wales and the UDP which "promote proposals for renewable energy developments where appropriate", was that "the proposed development is broadly supported by both national and local planning policy and guidance and therefore is considered to be fundamentally acceptable in principle".
Under the heading "Cultural Heritage", she said this:
"The desirability of preserving an ancient monument and its setting is a material...
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