Richard Hackett Pugh v Secretary of State for Communities and Local Government Cornwall Council (Interested Party) Nick Maiklem (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gilbart |
| Judgment Date | 05 January 2015 |
| Neutral Citation | [2015] EWHC 3 (Admin) |
| Date | 05 January 2015 |
| Docket Number | Case No: CO/3712/2014 |
| Court | Queen's Bench Division (Administrative Court) |
[2015] EWHC 3 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Gilbart
Case No: CO/3712/2014
and
and
Richard Harwood QC (instructed by Richard Buxton) for the Claimant
Richard Honey (instructed by Treasury Solicitor) for the Defendant
The Interested Parties did not appear and were not represented
Hearing dates: 9th December 2014
By a Decision Letter of 30th June 2014 an Inspector appointed by the Defendant allowed the appeal of the Interested Party Mr Maiklem against a refusal of planning permission by Cornwall Council, and granted permission for the erection of a single wind turbine with a maximum blade tip height of 75 metres, along with an associated access track, new field entrance, crane hardstanding, and an electrical switchgear house with associated underground cabling and temporary construction compound. The turbine was to be sited at Mr Maiklem's farm, namely Bocaddon Farm, Lanreath, near Looe in Cornwall.
The appeal had been conducted by the exchange of written submissions, and the Inspector had also made a site visit.
This case is concerned with the assessment of the impact of the development on the settings of Scheduled Ancient Monuments ("SAMs") and Listed Buildings in the vicinity.
The Claimant Mr Pugh had objected to the application, both to the local planning authority and to the Inspector. Mr Pugh lives with his wife at Trecan Farm, which consists of about 8 acres upon which they operate a holiday cottage business.
I shall deal with matters as follows
i) the application for permission, the refusal, the cases before the Inspector and the Decision Letter
ii) the Decision Letter
iii) The nature of the challenge
iv) Legal context
v) Policy context
vi) Mr Harwood's submissions for the Claimant
vii) Mr Honey's submissions for the Defendant
viii) Discussion and Conclusions.
The planning application and refusal, and the cases before the Inspector
The site lies in an arable field at about 150m AOD in countryside which consists of an open, medium to large scale rolling plateau, with a pattern of low irregular Cornish hedges, some hedgerows and sparse tree cover, gently sloping and undulating stream valleys with isolated farms and large modern houses scattered throughout. There are some overhead lines, a telecommunications mast, and two 18 m high turbines just under 2 km away, and another (of 45m) just over 7 km away. The site lies between Bury Down Camp (a SAM) 950 m to the north east and the linear boundary/earthworks of Giant's Hedge (a SAM) 1 km to the south and southwest. The area had been assessed by Cornwall Council as having a moderate sensitivity to wind energy development with a landscape strategy being for small or medium clusters of turbines, or single turbines of up to heights of 100–150m, and for wind turbines to be clearly separated so that they do not have a defining influence on the overall experience of the landscape. (All taken from the Decision Letter paragraphs 13–15).
The planning application was submitted on 28th September 2012. It was accompanied by various detailed Statements and Reports. One was an Environmental Report consisting of just under 100 pages with appendices amounting to almost another 100 pages. Topics covered included a landscape and visual impact assessment, an assessment of cultural heritage and archaeology, ecology and ornithology, noise, hydrology and miscellaneous other impacts. There were also detailed reports submitted on Design and Access, and on Planning Policy. While some doubts were expressed to me because the qualifications and expertise of the authors was not identified (the document was submitted by a consultancy dealing with wind energy) it is obvious from reading it that it had been prepared by those with considerable expertise in the topics in question. I shall consider its contents so far as relevant to Listed Buildings and SAMs below.
Objections were received from the Council Landscape Architect relating to the effect of the proposal on the landscape. That objection raised no issues concerning SAMs or Listed Buildings. English Heritage ("EH") welcomed the fact that the application was accompanied by a cultural heritage assessment, but criticised it because it considered that the assessment of the impact on the Bury Down Camp SAM was inadequate, and therefore maintained an objection. It described Bury Down Camp as being a nationally important SAM.
Mrs Pugh, the wife of the Claimant, objected on the basis that the wind turbine would have an overbearing impact on "all the houses in the vicinity and will have a high impact on the AGLV" (Area of Great Landscape Value). The AGLV lies to the east of the site. She objected also because of the effects she considered that the presence of the turbine would have on the holiday cottage business.
As a result of the comments by EH the Appellant commissioned a report by a consultancy called Cotswold Archaeology. It was entitled "Bocaddon Wind Farm Turbine: Addendum to the Environmental Report: Archaeology and Cultural Heritage." It is a very full report written in accordance with a structured methodology, albeit one criticised by English Heritage. I shall refer to its contents below.
EH were again consulted. It maintained its objection, criticising the methodology of assessment and referring to what it considered were the adverse effects on the Giant's Hedge SAM and the Bury Down Camp SAM. There is no doubt whatever that the EH comments related to the Addendum report. One can say that with confidence because of the cross referencing to paragraph numbers. It also disagreed with the assessments of the degree of impact. EH raised no concerns about the effect of the proposal on any Listed Buildings or their settings, or those of any other SAM. Correspondence addressed to them later by the Appellant's heritage consultants on 18th June 2013 states that in discussion, EH had confirmed that it accepted the assessments in the Addendum on the other heritage assets that were addressed.
The application was recommended for refusal in the officer's report. While it considered that the benefits of the scheme (the provision of electricity and saving of CO 2 outweighed any harm to landscape character, it recommended refusal because of the effects on the settings of Bury Down Camp SAM and Giant's Hedge SAM. It did not consider that there were other reasons for refusal. It is to be noted that no suggestion was made in the report of any objection based on the effects of the proposal on the setting of any Listed Building.
Two reasons of refusal were given in the decision of 11th June 2013:
"1 The proposed turbine would by reason of its scale, elevation and siting project into the skyline in an important designated landscape in a prominent location between the two Scheduled Ancient Monuments of Bury Down Camp and the Giant's Hedge. In so doing it would introduce a modern vertical structure which would adversely impact upon the setting of both monuments individually and also their relationship to each other.
2 It is considered therefore what the proposal would have a detrimental impact upon the historic landscape character and would result in substantial harm to the setting of the Scheduled Ancient Monuments. The contribution which the wind turbine would make towards the provision of renewable energy has been given significant weight however it is considered that the harm described would in this case outweigh the benefits of the scheme. The proposal would therefore be contrary to Paragraph 132 of the National Planning Policy Framework, and Caradon Local Plan 1999 saved policies REN1 and REN2."
Mr Maiklem appealed against the refusal. He submitted written Grounds of Appeal which referred specifically to the Addendum Report, which was attached to the Grounds of Appeal as document BF 11. Paragraph 7 of the Grounds summarised the contents of that report as it related to the two SAMs and on the historic landscape. The Grounds also included an email exchange between EH and the Cornwall Council planning officer, although the date of the exchange was unknown. It was sent by Cornwall Council to the Appellant's Consultant in the weeks after the refusal of planning permission. EH's officer Mr Russell now described the harm as "borderline substantial" in the case of both SAMs, and then later said that he now considered that the harm at Giant's Hedge is "probably less than substantial" and as to Bury Hill that "it's one that could go either way."
Cornwall Council submitted its Statement of Case. It referred to Local Plan policy CL 19. It also referred to the National Planning Policy Framework ("NPPF") of March 2012 and included this submission:
"4.23 Great weight is to be assigned to an asset's conservation (Para 132) and significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting noting substantial harm to scheduled monuments should be wholly exceptional.
4.24 Paragraph 133 requires that, where such assets are to be substantially harmed by a development, permission should be refused unless the harm is " necessary to achieve substantial public benefits that outweigh that harm or loss…". This weighting exercise is also to be undertaken where the harm is less than substantial (Para 134)….".
It then went...
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