R (on the application of Mageean) v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judgment Date | 28 July 2010 |
| Neutral Citation | [2010] EWHC 2652 (Admin) |
| Date | 28 July 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/12524/2009 |
[2010] EWHC 2652 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Hhj Robinson
(Sitting as a Deputy High Court Judge)
CO/12524/2009
MR D KOLINSKY (instructed by RICHARD BUXTON) appeared on behalf of the Claimant
MR J LITTON QC (instructed by THE TREASURY SOLICITOR) appeared on behalf of the Defendant
MR J NEILL (instructed by HAMMONDS) appeared on behalf of the Interested Party
This is an application pursuant to section 288 of the Town and Country Planning Act 1990 (the 1990 Act) to quash a decision of the first defendant given by an inspector in a decision letter dated 15 September 2009. The inspector allowed an appeal by the third defendant against a refusal of planning permission by the second defendant, and granted planning permission for one 1.3 mw wind turbine generator with a hub height of 50 metres and a blade tip height of 81 metres plus ancillary development on land at Highdown, Redland, Pensilber, Liskeard, Cornwall. The claimant is a local resident who lives not for from the site of the proposed wind turbine. In summary, the challenge relates to procedural inadequacies in the first defendant's approach to whether or not the proposed development was EIA development for the purposes of the Town and Country Planning Environmental Impact Assessment, England and Wales Regulations 1999 (“the EIA Regulations”). The version which applies to this case is that in force prior to the coming in to force of the Town and Country Planning Environmental Impact Assessment Amendment, England Regulations 2008, on 1 September 2008 (see Regulation 3.1 as amended). In practice these amendments are immaterial to the issues in this case.
At the beginning of the hearing there was a procedural skirmish about the claimant's current grounds of challenge and the very late service of evidence on behalf of the first defendant. The defendant submitted that the claimant had changed its grounds in the skeleton argument, despite having been specifically asked in earlier correspondence whether there would be any amendments in the grounds to which the response was no. However, the defendants were content for me to consider the grounds now put forward and reach a view about their merits before deciding whether I would allow them to be taken. The claimant did not object as such to the late service of the witness statements of the Inspector, dated 1 July 2010. However, he did take issue with whether the first defendant was entitled to rely on it to plug what were described as gaps in the first defendant's decision making processes. This is a matter to which I will return later.
The facts
Proposals for a wind turbine at Highdown have been under consideration for some time. In 2003 the third defendant invited the second defendant's predecessor, Caradon District Council to give a screening opinion as to whether the proposed wind turbine would be EIA development. The significance of this is that, if it is EIA development, then the EIA Regulations require an environmental impact assessment to be carried out prior to the grant of planning permission. The proposed development fell within paragraph 3(a) of schedule 2 to the EIA Regulations, and exceeded the applicable threshold in column 2 of the schedule. Accordingly, whether it would be EIA development depended on whether it would be:
“Development likely to have significant effects on the environment by virtue of factors such as nature, size or location” (Regulation 2).
The screening opinion given by the district council, dated 23 May 2003, was that the proposed wind turbine would be EIA development:
“It is considered by the local planning authority that the turbine could, by means of its height, position and location, have a significant impact upon the landscape to the North and East, much of which is covered by AONB designations.”
AONB stands for Area of Outstanding Natural Beauty, a national designation of landscape importance. One AONB lies 4km to the West of the site, another 6km to the East.
The third defendant then went to the first defendant, as she was entitled to do, and asked for a screening direction that the proposed wind turbine would not be EIA development. On 24 July 2003 the first defendant issued a screening direction to that effect, stating simply that:
“In the opinion of the Secretary of State, and having taken into account the selection criteria in schedule 3 to the 1999 Regulations, the proposal would not be likely to have significant effects on the environment by virtue of factors such as its nature, size and location”.
Some criticism is made by the claimant of the wording of the direction, but it is not suggested that it is invalid or inapplicable for that reason.
In the event, no planning application was made by the third defendant until December 2007. It was accompanied by a document called “Environmental Report” which, although not an environmental statement as would be required if the proposal were EIA development, sought to evaluate the impact of the development on various aspects of the environment, including the benefits of renewable energy. The application was also accompanied by a landscape and visual impact assessment and noise assessment from independent consultants. The application attracted considerable local opposition, including from the claimant. The community had formed an organisation called “Green Caradon against Turbines” or “Green CATS” to oppose the development. Its objections focussed on impact on the landscape and the effect of noise on residential amenity. Green CATS instructed its own independent landscape and noise consultants who produced reports which were relied upon by the objectors.
Of particular importance for present purposes, one of Green CATS’ objections was to the impact it was said the proposed wind turbine would have on the Cornwall and West Devon mining landscape World Heritage Site, which had been designated in 2006. Two areas of the World Heritage Site are relevant, area 9, Caradon Hill, lies 1.2km to the West of the proposed wind turbine; and area 10, Kit Hill and Tamar Valley, lies 3.7km to the East. It is to be noted that the World Heritage Site was designated after the first defendant's screening direction that the proposed wind turbine was not EIA development. The importance of protecting World Heritage Sites and their settings is described in circular 7 of 2009 which refers, in paragraph 8, to their “outstanding universal value” and “importance as a key material consideration” when taking decisions as to whether planning permission should be granted.
In its report to the Planning Committee, the Planning Officer recommended that planning permission be granted. The report stated that there would be some visual impact on the AONB and World Heritage Site, but that the bodies responsible for the protection of these areas had not objected to the development. As to the more local landscape, the report stated that there would be some harmful visual impact in some locations but that this would not be an unacceptable loss of landscape visual amenity contrary to local policies. The report concluded:
“After careful consideration of all the information, including the many comments from residents, it is considered that, having regard to national and local policy for renewable energy development, and on the basis that the wind turbine would not unacceptably harm the landscape character and visual appearance of the area as a whole, a recommendation of approval is warranted”.
Members, however, disagreed and planning permission was refused for the reason that:
“The proposed development would be detrimental to the appearance and character of the landscape and, as such, is contrary to development plan policies which seek to protect the landscape, including the World Heritage Site”.
The third defendant appealed against that refusal and the appeal was dealt with by the planning inspectorate rather than the first defendant personally. Green CATS asked for the appeal to be dealt with at an inquiry, but the Inspectorate decided it should be dealt with by written representations. With hindsight that was unfortunate. The problems which have given rise to this challenge might have been spotted and dealt with if there had been an inquiry. Written representations were made in the appeal on behalf Green CATS, the second and third defendants. The Inspector made a site visit and, in her decision letter, identified two main issues:
“•The effect of the proposed development on the landscape character and visual appearance of the surrounding area; and
•Whether harm from the proposal, including any to the character and appearance to the area and any other harm, would be outweighed by the need for increased renewable energy generation” (paragraph 4).
Her conclusions on the first issue are as follows:
“20. The site is sufficiently distant from the AONBs and World Heritage Sites, that there will be no detrimental impact on these nationally and internationally important designated areas. The site would appear in some long distance views from east and west, but it would appear as a small feature and would not cause harm to the generally wide and panoramic outlook. The site is located within attractive pastoral countryside, but AGLV status should not in itself be a reason to withhold planning permission. Because of the character of the landscape, views of the site from closer public vantage...
To continue reading
Request your trial
-
R Loader v Secretary of State for Communities and Local Goverment and Others
...significant effects on the environment, it would be open to the council to require an environmental statement at that stage ( R (Mageean) v Secretary of State [2012] Env LR 3, per Sullivan LJ). 41 In Gillespie v First Secretary of State [2003] Env LR 30, cited in Jones and in Hart DC, the q......
-
Murphy's (Chris) Application
...opinion of the general public is optional.” 24 [73] In the context of the EIA directive, the applicant referred to R (Mageean) v SSCLG [2010] EWHC 2652 in his written arguments. This deals with a different subject matter however there is a common principle about passage of time and material......
-
Milton (Peterborough) Estates Company Trading as Fitzwilliam (Malton) Estate v Ryedale District Council Gmi Holbeck Land (Malton) Ltd (Interested Party)
... ... The Queen — on the application of — ... Between: Milton ... town centre commercial limits (Ryedale Local Plan adopted March 2002). The emerging Core ... decision on the appeal on behalf of the Secretary of State: a) Within the inquiry's Core ... reference was made to the case of Mageean v SSCLG and another (2011) EWCA Civ 863 ... ...
-
R (on the application of Mageean) v Secretary of State for Communities and Local Government
...related applications " The facts 4 The facts are set out in same detail in paragraphs 3 to 19 of the judgment, which is reported at [2010] EWHC 2652 (Admin). A brief summary will suffice for present purposes. The proposed development falls within paragraph 3(a) of Schedule 2 to the regulat......