R (on the application of Mageean) v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Mummery,Lord Justice Rimer |
| Judgment Date | 30 June 2011 |
| Neutral Citation | [2011] EWCA Civ 863 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 June 2011 |
| Docket Number | Case No: C1/2010/2661 |
[2011] EWCA Civ 863
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(HER HONOUR JUDGE ROBINSON QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Rimer
and
Lord Justice Sullivan
Case No: C1/2010/2661
Mr Jeremy Pike (instructed by Hammonds LLP) appeared on behalf of the Appellant.
Mr Dan Kolinsky (instructed by Richard Buxton Environmental and Public Law Solicitors) appeared on behalf of the First Respondent.
Mr John Litton QC (instructed by the Treasury Solicitor) appeared on behalf of the Second Respondent.
This is an appeal against the order dated 28 July 2010 of HHJ Robinson sitting as a deputy High Court judge, allowing the first respondent's application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of the planning Inspector appointed by the second respondent, the Secretary of State, allowing the appellant's appeal against the refusal of the third respondent to grant planning permission for the erection of a 1.3 megawatt wind turbine generator with a hub height of up to 50 metres and a blade tip height of up to 80 metres on land at High Down, Redland, Off Charaton Road, Pensilva, Liskeard ("the site").
The appeal was determined by written representations. The Inspector made a site visit on 18 August 2009 and her decision letter is dated 15 September 2009. The judge quashed the decision taken on behalf of the Secretary of State by the Inspector on the single ground that the Inspector had failed to consider whether a screening direction issued by the Secretary of State on 24 July 2003 ("the screening direction") pursuant to the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 ("the Regulations") that the proposed development was not EIA development for the purpose of the Regulations should have been referred back by the Inspector to the Secretary of State for reconsideration because there had been a material change in the circumstances since the screening direction was issued, namely the inscription in 2006 of the Cornwall and West Devon Mining Landscape as a world heritage site ("WHS"). The importance of protecting such sites in their settings is emphasised in Communities and Local Government Circular 7/2009, which refers to their outstanding universal value to the whole of humanity and says that:
"'Outstanding universal value' means cultural and/or natural significance which is so exceptional as to transcend national boundaries."
The circular also advises that the outstanding universal value of a world heritage site "indicates its importance as a key material consideration to be taken into account by the relevant authorities in determining planning and related applications "
The facts
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 regulations and it exceeds the applicable threshold in column 2 of Schedule 2. The third respondent's predecessor as the local planning authority, the Caradon District Council, gave a screening opinion that the proposed wind turbine would be EIA development. The appellant asked the Secretary of State for a screening direction to the contrary and in the direction dated 24 July 2003 the Secretary of State said that it was his opinion that "the proposal would not be likely to have significant effects on the environment by virtue of factors such as its nature, size and location."
Two areas of the WHS which was inscribed in 2006 are relevant for present purposes. They are Area 9, Caradon Hill, which lies 1.2 kilometres to the west of the site, and Area 10, Kit Hill and the Tamar Valley, which lies 3.7 kilometres to the east. The planning officer's report told members that the Environment and Heritage Unit of the County Council, who gave advice on behalf of the World Heritage Service had been consulted and had not objected to the application on the ground that it would have an adverse impact on the WHS. Although the planning officer recommended that planning permission should be granted, members disagreed and refused planning permission for the reason that:
"The proposed development would be detrimental to the appearance and character of the landscape and as such is contrary to Saved Policies 1, 2 and 7 of the Cornwall Structure Plan 2004, Saved Policies REN1, REN2, CL2 and CL9 of the Caradon Local Plan 1999 and Police ALT 2 of the Caradon Local Plan First alteration 2007 "
It should be noted that the quotation in paragraph 8 of the judgment which purports to set out the reason for refusal is not accurate. The refusal did not specifically refer to the WHS, although it is right to say that one of the saved policies mentioned in the reason for refusal, CL2, which had of course been adopted prior to the inscription of the WHS, refers to the need to protect world heritage sites generally.
As I have mentioned, the appeal was dealt with by written representations. Those representations included representations opposing the grant of planning permission from an organisation formed by the local community called Green Caradon Against Turbines or Green CATS.
The first respondent is a representative of Green CATS. One of Green CATS's principal objections to the proposed developments was the impact which the wind turbine would have on the WHS. On behalf of the first respondent Mr Kolinsky said that one of their "key complaints" was the impact of the proposed development on the WHS. The Inspector considered this issue in paragraph 9 of the decision letter under the sub heading "Landscape and world heritage site designations":
"The boundary of Caradon Mining World Heritage Site (WHS) is located approximately 1.2kms to the north and Tamar Valley Mining District including Kit Hill (also within a WHS) lies to the east. Whilst the WHSs are of international significance, I recognise that these are not landscape designations; the WHS areas include remains of the mining industry which reflect the evolution of human society and settlement over time. PPS22 expects assessment to be undertaken to show that the integrity of such sites would not be adversely affected. The Appellants' landscape and visual impact evidence has addressed this matter. It refers to the Management Plan for the Cornwall and West Devon Mining Landscape WHS, which reported that there is little potential for events outside the Site to have an adverse impact on its outstanding universal value in the majority of rural areas. The County Council's Environment and Heritage Unit did not object to the proposed wind turbine. I saw at my site visit that important places within the WHS including Caradon Hill, Cheesewring Quarry and Kit Hill are sufficiently distant from and elevated above the appeal site that the proposed turbine would only occupy a small portion of the long distance, panoramic views to and from them."
The management plan for the WHS referred to by the Inspector in paragraph 9 of the decision letter says under issue 6:
"Protecting the visual setting and historical context of the site
The setting of the Site is those sites, monuments, buildings and landscape components which provide additional historical context, and a physical space in which events could affect the visual appreciation of the Site…
The site comprises 10 discrete but inter-visible landscapes all of which encompass significant components. This is an evolving cultural landscape, with the process of change driven by mining technology and economy from 1700 and continuing to the present day and in the future, following a period of decline and now regeneration, with new sympathetic additions and changes to the landscape having a place. There is little potential for events outside the Site to have an adverse impact on its outstanding universal value in the majority of rural areas although there are some urban areas where there is a higher potential for adverse impact"
And then under the heading "Protecting the Visual Setting of the Site":
"The setting of the Site includes a visual space in which events could adversely affect the visual appreciation or understanding of the Site. However this space cannot be defined by the simple fact of visibility into or from the site. The extended impact on the visual setting has to be determined on a case by case basis taking into account wider considerations and applying weight and judgement. Historic landscape characterisation is a vital tool in determining the appropriateness of development or land-use change. Physical distance, scale, mass and materials may also be factors to take into account…"
Circular 07/09, which deals with the protection of world heritage sites, refers in paragraph 13 to management plans for world heritage sites and says that such a plan "needs to cover all the issues affecting the site".
The Inspector's conclusion on this issue is to be found in paragraph 20 of the decision letter as follows:
"The site is sufficiently distant from the AONB's and WHS's that there would be no detrimental impact on these nationally and internationally important designated areas."
The Inspector was not asked by Green CATS in its written representations or indeed by anybody else to consider whether she should invite the Secretary of...
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