Rhoscrowther Wind Farm Ltd v The Welsh Ministers and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 09 June 2016 |
| Neutral Citation | [2016] EWHC 1388 (Admin) |
| Docket Number | Case No: CO/1394/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 June 2016 |
[2016] EWHC 1388 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN WALES
Cardiff Civil Justice Centre
2 Park Street
Cardiff
CF10 1ET
Mr Justice Hickinbottom
Case No: CO/1394/2016
Richard Kimblin QC (instructed by Aaron & Partners LLP) for the Claimant
Richard Moules (instructed by the Government Legal Department) for the First Defendant
The Second Defendant neither appearing nor being represented
Hearing date: 9 June 2016
Approved Judgment
On 15 January 2014, the Claimant applied to the Second Defendant local planning authority ("the Council") for planning permission to construct and operate five wind turbines with a maximum tip height of 100m, together with ancillary works, on land to the south of the Milford Haven Waterway, in Refinery Road, Hundleston, about 8km west of Pembroke town ("the Site"). The Site is in countryside, but is close to the Valero Oil Refinery, a large scale industrial feature. It is also close to the boundary of the Pembrokeshire Coast National Park ("the National Park"), which runs approximately north-south just to the west of the Site.
The statutory development plan for the area including the Site is the Pembrokeshire County Council Local Development Plan ("the LDP"), adopted in 2013. The National Park has its own discrete local development plan, adopted in 2010 ("the National Park LDP"); which has been supplemented by the National Park Authority's Renewable Energy Supplementary Planning Guidance ("the SPG") adopted in 2011. Although not part of the statutory development plan, it is uncontroversial that the SPG was a material consideration for the purposes of the Claimant's application.
Paragraph 4.146 of the National Park LDP states:
"The policy framework below provides positive support for renewable energy proposals to take account of the special qualities of the National Park…".
Immediately below that paragraph, Policy 33 provides (so far as relevant to this application):
"Small scale renewable energy schemes will be considered favourably, subject to there being no overriding environmental and amenity considerations. Medium scale schemes also offer some potential and will be permitted subject to the same considerations. Large scale renewable energy schemes will only be permitted where they do not compromise the special qualities of the National Park…".
The SPG deals with the effects of proposed renewable energy proposals by reference to landscape character areas ("LCAs"), with an annex to the SPG setting out details of the types of development that, in terms of policy, would or would not be acceptable by reference to each LCA. The relevant LCA for the purposes of the appeal proposal is LCA6, Castlemartin/Merrion Ranges, which covers an area straddling the National Park boundary. In the SPG, LCA6 is one of the few LCAs which are said to have potential for the erection of wind turbines. For that LCA, the SPG provides, under the heading "Overview":
"The large scale of the landscape, the presence of military structures on the skyline and the intrusive sound of gunfire in an otherwise tranquil landscape would indicate that this landscape might be able to accommodate additional manmade structures such as wind turbines. However, its open and wild landscape character, sense of relative remoteness, unsettled nature, long views along the coast, strong archaeological interest and the presence of important habitats supporting a range of wildlife species all pose constraints to the development of turbines and their associated infrastructure."
The guidance given in respect of LCA6 includes the following:
"The majority of this LCA is unsuitable for large or medium scale turbines. There may, however, be limited opportunity for a single or a small cluster of medium or large (under 100m to blade tip) scale turbines in land close to existing oil refinery chimneys to provide a new point of focus as long as they are sited sensitively following guidelines below."
A "small cluster" is defined as 2–3 turbines.
The Site also falls within the Haven Way Enterprise Zone, based on "existing and potentially new energy sites", including potential tidal energy facilities. Again, it was common ground that it was a material consideration that the Site fell within an Enterprise Zone, although the Council contended that it should be given limited weight because that was not a planning policy.
The Site lies 700m from St Decumanus' Church, with an accompanying cross and schoolhouse in its curtilage, a Grade I listed building in Rhoscrowther. Rhoscrowther was a village adversely affected by an explosion at the oil refinery in 1994, which led to its desertion. The church, without the village, no longer functions as a parish church; but is maintained by the Friends of Friendless Churches.
The application for planning permission was refused by the Council on 21 January 2015. The Claimant appealed under section 78 of the Town and Country Planning Act 1990. The Welsh Ministers appointed Alwyn Nixon as inspector ("the Inspector"), and transferred the decision-making power on the appeal to him. Following six days of hearings, and accompanied and unaccompanied inspections of the Site, on 4 February 2016, the Inspector dismissed the appeal.
On 15 March 2016, the Claimant issued this claim under section 288 of the 1990 Act to quash the Inspector's decision. By an Order sealed on 26 April 2016, Coulson J refused permission to proceed with the claim. The Claimant, through Richard Kimblin QC, now renews that application. He does so on four grounds.
The first two grounds can conveniently be taken together. They both concern the manner in which the Inspector approached the SPG. The Inspector dealt with the landscape and visual effects of the proposal, at some length and with some patent care, in paragraphs 27–62 of his decision. At the outset, in paragraph 27, he noted that the Site lies just outside the boundary of the National Park; and that, in considering activities affecting a National Park, Planning Policy Wales requires regard to be had to the statutory purposes of the National Park, whether the relevant activities lie within or outside the designated area. He particularly dealt with the SPG in paragraph 62:
"In considering this issue...
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