Rwe Innogy UK Ltd v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 12 December 2014 |
| Neutral Citation | [2014] EWHC 4136 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 December 2014 |
| Docket Number | CO/3118/2014 |
[2014] EWHC 4136 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Dove
CO/3118/2014
The Claimant did not appear and was not represented
The Defendant did not appear and was not represented
Introduction
This case concerns the decision of the Secretary of State to refuse planning permission for ten wind turbines and associated infrastructure as East Heslerton, Ryedale.
Two topics of complaint are raised. Firstly, the Defendant's conclusions in relation to landscape impacts on the North York Moors National Park ("NYMNP") which the site is not within, but which at its closest point is 9 kilometres from its boundary.
The second aspect is the assessment of the impact on cultural heritage in the decision, in particular the impact on St Andrew's Church, East Heslerton, which is a Grade I listed building designed by GE Street, the renowned exponent of the Victorian Gothic revival style of architecture in the late 19th century and indeed architect of the Royal Courts of Justice in which this judgment is being delivered.
History
The Claimants applied to the Interested Party (who did not appear in these proceedings), Ryedale District Council, for planning permission for the development described above on 18 March 2011. That application was accompanied by environmental information in the form of an Environmental Statement.
As is usual, the Environmental Statement included chapters on landscape and visual assessment and also archeology and cultural heritage. Within those chapters there was an evaluation methodology based on a matrix of analysing (A) the sensitivity of the landscape interest concerned or the historic asset, (B) the magnitude of the effect upon it leading to (C) a categorisation of the significance of that effect.
In relation to landscape and visual matters, the methodology separated out effects on landscape character from visual effects. In relation to landscape character, the impact on the NYMNP was said to be a low to negligible impact on a high sensitivity asset, giving rise to a moderate/minor impact of an "indirect long term/reversible neutral" type.
In respect of visual impact on the NYMNP, the impact was set out as "minor to no view" of a similar type based on a "negligible to no view" on a high sensitivity receptor. (See bundle page 242).
St Andrew's Church was assessed as a high sensitivity receptor and the analysis was described as follows:
"The development will be present in views out towards the countryside, particularly the view which is framed by the lychgate and which is further opened out when stepping through into the churchyard. However, it is considered that the development will not effect the way in which this view is interpreted or understood. The full assessment of the effect on this view is included within the landscape and visual assessment chapter 6 of Applicant's ES…
In conclusion, it is considered that in the case of the church, there is a potential for the development to have effect of "low" magnitude upon the building's setting. Therefore, the effect upon the building's setting is assessed as minor."
Various parties were consulted, including obviously the necessary statutory consultees. They made the following contributions to the Council's decision.
Firstly, Natural England provided two responses, the second of which is pertinent and which was made on 27 May 2011. They indicated as follows:
" Landscape, access and recreation including Yorkshire Wolds Way
Natural England does not consider that the proposal would have a significant effect on nationally designated landscapes, although it would be visible from areas of the North York Moors National Park (northern edge of detailed study area)."
On 20 April 2011, the North York Moors National Park Authority ("NYMNPA") stated that they had no comments to make in relation to the application. However, subsequently that position changed. In a letter of 15 June 2011 from Mr France, their Director of Planning, they noted their earlier position and then observed as follows:
"Whilst this assessment is a valid one in terms of the immediate setting of the Park, the proposal has been assessed from the landscape to the north of the villages of Hutton Buscel West and East Ayton where the boundary of the Park is at its closest to the proposed site, a distance of less than 10km. This is an area of elevated arable and pasture land characterised by linear roads and public footpaths that provide open views out across the Park and Vale of Pickering to the ridge of the Yorkshire Wolds.
Whilst not constituting the setting of the National Park, the Wolds escarpment forms an important visual backdrop to the extensive deeply rural views which characterise the southern vista from this part of the Park. The relationship between the landscape character areas of the Vale of Pickering and the Wolds and the southern dip slopes of the North York Moors is an important one where the lack of significant man made features and the linear character of the immediate and longer distance views are fundamental to the public enjoyment of the public enjoyment of the special qualities of the National Park.
The proposed wind farm would introduce a highly intrusive form of development which owing to its scale, vertical emphasis, the number of turbines, their elevated siting, movement and prominence in relatively close proximity to the National Park would seriously undermine these landscape features and therefore impact adversely upon the public enjoyment of the special qualities of the National Park within its south-eastern edge area."
On 6 May 2011, English Heritage wrote to the Council complaining about the quality of the assessment of the historical environment in the Environmental Statement and the paucity of the extent of the illustrative material. They recommended as follows in relation to the application:
"We consider the harm caused to the setting of heritage assets will compromise their appreciation. The development does not make a positive contribution to or better reveal the significance of the heritage assets in the area and the requirements of policy HE 10.1 of Planning Policy Statement 5 therefore apply (i.e. that the harm is weighed against the wider benefits. There is no evidence in the application that other less damaging sites or methods of power generation have been explored in accordance with policy HE 1.2 of PPS5. We recommend your Council weighs the harm against the benefits of the proposal and considers the justification for it. We also recommend in doing so your Council is mindful as to whether this case forms a precedent in respect of wind farms breaching the ridge of the Wolds' escarpment."
The Claimants decided to produce more environmental information, in particular in response to some of these consultations and in March 2012 published a Supplementary Environmental Information ("SEI"). That provided in relation to the NYMNP further analysis based on the identified special qualities of the National Park defined in its management plan. More viewpoints were analysed from the southern part of the National Park looking towards the site.
Two passages from that documentation will suffice to show the outcome of that evaluation:
"The character of the views from this part of the NYMNP viewing south west towards the development are however invariably compromised by either land form and/or buildings/vegetation and from more elevated locations by either vegetation or telegraph poles which interfere with the view. Where there are open views across the Vale of Pickering towards the Yorkshire Wolds, these are more of an incidental nature and are not of a particularly high scenic quality in terms of presenting a vista or panoramic view. As in most cases, the Vale of Pickering and/or the Yorkshire Wolds are only partly visible or truncated. Further, it may be noted that there are no public viewpoints, viewing platforms or similar to indicate that the area is particularly valued for these views or that they are important to the special qualities of the Park or its integrity in whole or in part."
"It is accepted that the Vale of Pickering and the enclosed Wolds and southern dip slopes of the North York Moors have an important geological formation that contribute to the areas' sense of place and visual character. The Vale of Pickering is, however, a settled rural landscape with pylons, agricultural sheds, roads, rail and some towns all within a minor rural setting. Skyline is simple and reposeful and it is claimed that this remote backdrop, however attractive, is fundamental to the public enjoyment of the special qualities of National Parks is overstated and conflicts with the information provided in the NYMNP management plan and the relevant landscape character assessment. As stated earlier, there are no viewpoints, platforms, visitor/tourist information or evidence to suggest that this is a fundamental valued quality to conclude the development would not significantly effect the special qualities, purpose and integrity of the NYMNP designation."
Turning to the further environmental information in relation to St Andrew's Church, the SEI provided as follows:
"Viewpoint figure PP 10.1 presents a view from Carr Lane (north of East Heslerton) facing south at National Grid reference SE9278477115. From this location the...
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