Rwe Npower Renewables Ltd (Claimant) The Welsh Ministers (Defendant) City & County of Swansea (Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Beatson
Judgment Date08 July 2011
Neutral Citation[2011] EWHC 1778 (Admin)
Date08 July 2011
Docket NumberCase No: CO/2996/2011 AND CO/2998/2011

[2011] EWHC 1778 (Admin)




Cardiff Civil Justice Centre

2 Park Street, Cardiff, CF10 1ET


The Honourable Mr Justice Beatson

Case No: CO/2996/2011 AND CO/2998/2011

Rwe Npower Renewables Ltd
The Welsh Ministers
City & County of Swansea
Interested Party

Gordon Nardell QC (instructed by Eversheds LLP) for the Claimant

Clive Lewis QC (instructed by The Treasury Solicitor) for the Defendant

The Interested Party did not appear and was not represented

Hearing date: 23 June 2011

Mr Justice Beatson



This is the hearing of two closely related challenges brought by the claimant, RWE Npower Renewables Ltd, against the Welsh Ministers concerning a site at Mynydd y Gwair, on which the claimant wishes to install a wind farm. The application is for 19 wind turbines with a maximum height of 127 metres to the blade tip and associated infrastructure. The infrastructure includes 13.9 kilometres of new access track. The site is part of a generally open upland area between Ammanford and the northern outskirts of Swansea, mainly consisting of grazed moorland containing peat deposits. It is registered as common land and is owned by the Somerset Trust.


The first application is made pursuant to section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to the decision of the Welsh Ministers on 21 February 2011 dismissing the claimant's appeal under section 78 of the 1990 Act against the deemed refusal of planning permission for the wind farm by the City and Council of Swansea. The second is for permission to apply for judicial review of the decision of the Welsh Ministers on the same date to dismiss three applications by the claimant for orders under section 147 of the Inclosure Act 1845 for the exchange of common land at the site with nearby lands. The Welsh Minister's decisions accepted the recommendations of Mr Wild, an Inspector appointed by the Minister, who conducted an inquiry between 20 July and 6 August 2010.


Both sets of proceedings were launched on 28 February 2011. On 14 April Kenneth Parker J ordered the judicial review proceedings to be heard on a "rolled-up" basis. Accordingly, in respect of the judicial review, I have to consider whether to grant permission, and if I do, to determine the substantive claim.


Formally, the judicial review proceedings also challenge the refusal of two consents under section 194 of the Law of Property Act 1925 for the temporary fencing-off of enclosed areas of common. This, however, did not form part of the submissions at the hearing. Consent for the fencing-off was refused only because planning permission for the wind farm was refused and it appears to be common ground that if planning permission is to be granted, the erection of the temporary fencing will be necessary.

The grounds


The refusal of planning permission is challenged on two grounds. The first is procedural unfairness by the Inspector in failing to challenge the evidence of the claimant's expert witnesses that any impact on the peat bog habitat after the application of mitigation would be minor in character but then concluding that the mitigated impact was not merely "significant" but serious enough to justify refusal of permission on this ground alone. The second, and more emphasised, ground is that the Inspector failed to give adequate reasons for his conclusion that the harm or risk of harm to peat bog habitat from the proposed scheme layout was serious enough to justify refusal of permission.


The ground upon which permission is sought to challenge the decision to refuse the applications for orders under section 147 of the Inclosure Act is that the Inspector and the Welsh Ministers misunderstood the claimant's case and the evidence as to the proposed replacement arrangements for the land removed from common. The Inspector decided that because the exchange land inter alia was not contiguous to the area of common land affected by the wind farm, its location was not suitable to replace that which would be lost from the commons. The claimant's case was that the main benefit to graziers would be delivered not from the exchange land itself but by the agreement of the Somerset Trust to surrender its grazing rights over the remaining common land, land that was contiguous with the parcels to be taken out of common. It is submitted on behalf of the claimant that the Inspector fell into error in disregarding the Trust's surrender of its grazing rights over the remaining common land.

The legislative, policy and factual background


The National Environment and Rural Communities Act 2006, section 40, imposes a duty on every public authority in exercising its functions to have regard so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity. The Welsh Ministers are, as a public authority, subject to this duty. By section 40 (2) of the Act they are required in particular to have regard to the United Nations Environmental Programme Convention on Biological Diversity of 1992. They are also, by section 42, required to publish a list of living organisms and type of habitat, which in their opinion, are of principal importance for the purpose of conserving biodiversity. Blanket bog is a priority habitat type within the UK Biodiversity Action Plan, and is also included on the Welsh Ministers' list of habitats with principal importance.


The powers under the Inclosure Act 1845 were originally vested in the Inclosure Commissioners. The Commissioners' functions in relation to Wales were transferred to the National Assembly for Wales by the National Assembly for Wales (Transfer of Functions) Order 1999 SI 1999 No 672 Article 2, Schedule 1) and then to the Welsh Ministers by section 161 and paragraph 30 of Schedule 11 to the Government of Wales Act 2006. By Section 147 of the 1845 Act, the Welsh Ministers may order that land be exchanged for land forming part of common land if they are of the opinion "that such exchange would be beneficial, and that the terms of the proposed exchange are just and reasonable".


In August 2008 the claimant applied to the City and County of Swansea for planning permission for the wind farm on the site at Myndydd y Gwair. The application was accompanied by an Environmental Statement ("ES"), which assessed the likely impact on peat deposits on the site, which were thought to be of a depth of less than 300mm, as "minor". The ES stated that wind farm infrastructure would be situated away from significant peat cover. The Council did not determine the application and, in October 2009, the claimant lodged an appeal under section 78 of the 1990 Act against the non-determination of its application. The Council, although an Interested Party to these proceedings, did not take an active part in them.


The Council was to state at the inquiry (see Inspector's Report, paragraph 33):

"Had the appeal not been lodged, the Council would have refused permission for three reasons…the main elements of the reasons are firstly, that the EIA [Environmental Impact Assessment] failed to consider properly the recommendation that the maximum height for the turbines in this part of SSA E [Strategic Search Area E] should not exceed 100m, because of the scale and type of land form of the area, and to avoid the worst individual and cumulative landscape and visual effects. This does not allow for the proper balancing of adverse impacts against the strategic objective of achieving renewable energy targets. Secondly, the Council considers the landscape and visual impacts to be unacceptably adverse and to outweigh the strategic energy objectives. Thirdly, the EIA fails to adequately justify the selection of the proposed route for construction traffic or to explain what alternatives have been considered. All three reasons state that the proposal is contrary to [the City and County of Swansea's Unitary Development Plan's] policies R11, EV22 and EV29."


The next material development was in January 2010 when the Countryside Council for Wales ("CCW") published draft proposals on peat habitats. The CCW at that stage did not object to the claimant's application for planning permission. Although the CCW's draft proposal had not been adopted by the Welsh Ministers, the claimant decided that in the light of it, further work should be undertaken on the question of the impact of the wind farm on peat deposits. It commissioned further peat survey work by its consultants, Bioscan (UK) Ltd., Halcrow Group Ltd., and Wallingford Hydrosolutions Ltd. Bioscan's report, Mynydd y Gwair Wind Farm Peat Study, is dated March 2010. Halcrow's Peat Stability Study and Wallingford Hydrosolutions's Peat Study Hydrology Report are dated May 2010. These reports dealt inter alia with peat depth, peat stability, peat hydrology and peat ecology. They and one other report were submitted as supplementary environmental information ("SEI") for the purposes of the appeal.


In March 2010, the Inspector, at that stage only concerned with the section 78 appeal, convened a pre-inquiry meeting. At that meeting, he identified the main issues as likely to be landscape/visual matters, access to the site, "the usual range of wind farm issues including effect on recreational use", residential amenity, ecology/habitat and highway safety. The claimant informed those present that it would be making a number of applications affecting the commons under section 145 of the Inclosure Act 1845 and section 194 of the Law of Property Act ("the commons legislation"), and CCW stated that...

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