Save Our Greenhills Community Group v Secretary of State for Communities and Local Government (First Defendant) Shropshire Council (Second Defendant) TGC Renewables Ltd and Robert Wall (Third Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 29 July 2016 |
| Neutral Citation | [2016] EWHC 1929 (Admin) |
| Docket Number | Case No: CO/2226/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 July 2016 |
[2016] EWHC 1929 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM CENTRE
Birmingham Civil Justice Centre,
33 Bull Street, Birmingham,
B4 6DS
Mr Justice Dove
Case No: CO/2226/2016
and
and
Thea Osmond-Smith (instructed by Freeths) for the Claimant
Richard Moules (instructed by The Government Legal Department) for the First defendant
The Second Defendant was not represented and did not appear at the hearing
Jeremy Pike (instructed by Temple Bright LLP) for the Third Defendant
Hearing date: 8 th July 2016
Judgment Approved
Introduction
This is a challenge under section 288 of the Town and Country Planning Act 1990 in relation to a decision of the first defendant's Inspector on 16 th March 2016 in respect of a planning appeal made by the third defendants. The claimants are a local amenity group who participated both in the planning application and the planning appeal process, objecting to the proposed development. The Inspector allowed the appeal and granted planning permission and this challenge is brought on four Grounds which are specified below. The hearing was a rolled up hearing in which it was necessary to reach a determination both in relation to the question of whether or not permission to proceed should be granted, and also, where appropriate, with the substantive merits of the challenge.
The facts
On 2 nd October 2014 the third defendant made an application for planning permission for a proposal which was described in the following terms:
"solar farm and associated development"
The application form identified that the site was 10.1 hectares in extent and also alluded to the provision of plans and drawings associated with the application, in particular a drawing in relation to site design. On 27 th October 2014 the second defendant acknowledged receipt of the application and confirmed that they had validated it on 22 nd October 2014. A reference number was allocated to the application and the description of the proposal was altered by the Council to the following:
"construction of a solar park comprising the installation of (circa) 14,200 ground mounted solar panels; inverter cabin; electricity substation; switchroom; coms building; pole mounted CCTV system; 2.4 metre high security fencing; associated access gates and gravel roads."
The application was accompanied and supported by documentation. A Planning, Design And Access statement was provided. In relation to flood risk section 15 of the document provided as follows:
"15.0 Flood Risk
TGC commissioned a Flood Risk Assessment (FRA) and this accompanies the application. The Site is located in Fluvial Zone 1. This implies that the entire developable area of the Site has a lower than 1 in 1,000 year probability of being affected by fluvial flooding.
Notwithstanding the above, the Proposals have the potential to introduce impermeable area around the Site where the land has previously been permeable and thus could increase the flood risk to adjacent sites.
The proposals would only introduce a small area of impermeable surfaces through the steel pile system used for the tables/racking system and the inverter stations concrete bases. Any access and maintenance roads are proposed to be constructed from permeable materials and will therefore not contribute to increasing runoff rates from the Site.
The total impermeable area equates to approximately 270m 2, which is only around 0.25% of the totally site area and will have a small impact on run off rates from the Site.
It is proposed to incorporate a SuDS scheme, as detailed within the FRA accompanying this application. The scheme will effectively reduce the run off rate to less that the current runoff rates, as storage and infiltration on site will be improved.
On the basis of the above, it is considered that the Proposals comply with Policy CS 18 of the Shropshire Core Strategy as the development would include appropriate SuDS to manage surface water and reduce existing run off rates."
In addition the application was supported by a Heritage Assessment. The Heritage Assessment identified that there were three heritage assets (the listed buildings Wharf House and Dower House and the Neen Sollars conservation area) which required consideration in relation to the proposed development. In relation to Wharf House the assessment, having explained the historic context of the building, provided the following observations in respect of the building's setting and the impact of the proposed development upon that setting.
" Elements of setting that contribute to the significance of the heritage asset
5.10. The building derives its significance in some part from its evidential value, contained in its historic post-medieval fabrics, surviving features and associated outbuildings.
5.11. Whilst much of the former Kington and Leominster Canal is now lost, the building derives some historical value and significance from its association with the canal's construction where it served as the Kington and Leominster Canal Company's headquarters.
5.12. Further significance is derived from the building's rural setting which is a good reflection of the setting within which the property would have originally been constructed.
Impact of the Proposed Development
5.13. Development of a solar PV array at the Site will not impact upon the Listed Building's physical fabric or its immediate rural setting and therefore will not alter the evidential value which this heritage asset holds.
5.14. Views towards the Site from the Listed Building are well screened by the substantial hedges which comprise the property's northern boundary, and local topography makes it very unlikely that the panels themselves would be visible from within the property's boundaries.
5.15. It is assessed that the Proposed Development will not present any visual impact upon the Listed Building's wider landscape setting and will not detract from the ability to understand, interpret or appreciate the Listed Building, nor affect the value which its historical value or its wider landscape setting contributes to its overall significance. No negative effect on the Listed Building's setting is predicted."
In a similar manner in relation to the Dower House the Heritage Assessment described the historic context of the building and then went on to offer the following analysis of the setting of the Heritage Assessment and the impact of the development upon it:
" Elements of setting that contribute to the significance of the heritage asset
5.19. The building derives its significance in part from its evidential value, contained in its historic post-medieval fabrics and surviving features.
5.20. Further significance is derived from the building's rural, mostly agricultural, setting which reflects well the setting within which the property would have originally been constructed.
Impact of the Proposed Development
5.21. Development of a solar PV array at the Site will not impact upon the building's physical fabric or its immediate rural setting and therefore will not alter the evidential value which this heritage asset holds.
5.22. Views toward the Site from the Listed Building are well screened by the hedges and trees which comprise the property's northern boundary.
5.23. It is assessed that the Proposed Development will not present any visual impact upon the Listed Building's wider landscape setting and will not detract from the ability to understand, interpret or appreciate the Listed Building, nor affect the limited value which its wider setting contributes to its overall significance. No negative effect on the Listed Building's setting is predicted."
Finally, in relation to the Neen Sollars Conservation Area the Heritage Assessment set out the historic interest of the conservation area and then, again, set out its analysis of the setting of the conservation area and the impact of the proposed development:
" Elements of setting that contribute to the significance of the heritage asset
5.26. The Conservation Area derives its significance from the group value of its historic buildings and area's informal layout and wide variety of architectural forms and styles. The Conservation Area contains fine examples of half-timbered, brick and stone buildings in a variety of traditional building styles with a Grade II* Listed Parish Church of All Saints situated within a spacious setting.
Impact of the Proposed Development
5.27. The Proposed Development is not visible in views from the majority of the Conservation Area, where extant buildings, mature trees and hedges, along with the undulating local topography, serve to effectively screen the area from the Site. The only exception may be the area to the extreme south of the churchyard, where there may be intermittent views across the landscape to the Site, more likely in winter when intervening deciduous trees will have lost their foliage. It is assessed that this potential change to the wider agricultural setting of the Conservation Area would result in no adverse impact upon its significance."
The application was also supported by a flood risk assessment and SUDS (Sustainable Drainage Strategy) design that provided as follows in relation to the approach to surface water drainage as a consequence of the implementation of the proposal:
" SuDS Design
The impermeable areas across the site are small, therefore no formal drainage is required. As such a pragmatic approach has been take to promote infiltration and create storage across the site. This involves the installation of swale and scrape features running parallel to the site contours within downslope...
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Renew Land Developments Ltd v Welsh Ministers
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