South Northamptonshire Council and Another v Secretary of State for Communities and Local Government and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeJudge Mackie QC
Judgment Date16 Jan 2013
Neutral Citation[2013] EWHC 11 (Admin)
Docket NumberCase No: CO/8849 AND 8922/2012

[2013] EWHC 11 (ADMIN)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

His Honour Judge Mackie QC

Case No: CO/8849 AND 8922/2012

Between:
South Northamptonshire Council(1)
Deidre Veronica Ward(2)
Claimants
and
Secretary of State for Communities and Local Government(1)
Broadview Energy Developments Limited(2)
Defendants

Mr Asitha Ranatunga (instructed by Legal Services, South Northamptonshire Council) for the First Claimant, Mr Juan Lopez (instructed by ) for the Second Claimant

Ms Lisa Busch (instructed by The Treasury Solicitor) for the First Defendant, Mr Timothy CornerQC (instructed by Eversheds LLP for the Second Defendant)

Hearing date: 5 th December 2012

Judge Mackie QC
1

By two separate claims the Claimants seek orders under section 288 of the Town and Country Planning Act 1990 quashing the decision dated 12 July 2012 ("the Decision") of a planning Inspector (Elizabeth Fieldhouse DipTP DipUD MRTPI) appointed by the Secretary of State. The Decision granted planning permission, following an appeal by Broadview Energy Developments Limited ('Broadview'), for a windfarm at Spring Farm Ridge, located between Greatworth and Helmdon in South Northamptonshire ("the Site"). The permission is for the erection of five wind turbines (each with a maximum height of 125m to blade tip) plus underground cabling, meteorological mast, and other ancillary facilities ("the Development").

2

The appeal followed the decision of South Northamptonshire Council ("The Council") the first Claimant, in a notice dated 11 July 2011 to refuse the Development. The decision of the Inspector was issued following a public inquiry held on 15–18 and 22–24 May 2012. Site visits were made on 21, 24 and 28 May 2012. Mrs. Ward, the Second Claimant, opposed the appeal. She is a member of Helmdon Stuchbury and Greatworth Windfarm Action Group ("HSGWAG").

3

By order dated 13 November 2012 the two claims were consolidated. Under both claims the Secretary of State and Broadview are defendants.

The challenges in outline
4

The Council challenges the decision on three grounds each supported by Mrs Ward. The Council submits that the Inspector failed

• properly to apply the statutory duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 ('the 2004 Act') and thereby failed to attach any or any proper weight to conflicts with Development Plan policy.

• properly to apply the statutory duties under sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ('the Listed Buildings Act') and thereby failed to have special regard to the desirability of preserving the setting of Listed Buildings and failed to give special attention to the desirability of preserving or enhancing the character or appearance of Conservation Areas.

• to provide adequate reasons on material matters to the decision, namely how the duty under section 38(6) of the 2004 Act had been applied and / or how the benefits of the proposal outweighed the harm to cultural heritage assets in the light of identified conflicts with Development Plan policy and the duties under the Listed Buildings Act.

5

Mrs Ward relies on two additional grounds not supported by the Council. She submits that the Inspector

• failed adequately to consider the actual noise impact of wind turbines in amenity terms and/or to examine and/or focus upon noise impacts beyond the issue of compliance with ' ETSU-R-97: The Assessment and Rating of Noise from Wind Farms'. The Inspector failed to provide adequate reasons for her approach to examining noise impacts and concluding upon them in terms of ETSU;

• erred in law by adopting a test relating to visual impacts on residential amenity without any basis in law or policy, misapplied the relevant policy in this context, and failed to take into account relevant considerations, namely the impacts which she regarded as falling below the threshold she has wrongly set.

The Legal Framework
6

Section 288(1) of the 1990 Act provides, so far as relevant:

"If any person –

(a) …

(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds –

(i) that the action is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section".

7

Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides:

"If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise".

8

Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides:

"In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority, or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses".

9

Section 72(1) of the same Act provides:

"In the exercise, with respect to any buildings or other land in a conservation area, of any functions under or by virtue of any of the provisions mentioned in subsection (2) [the Planning Acts], special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area".

Principles
10

The approach of the court to an application under Section 288 is not in dispute and in the next three paragraphs I adopt the summary in the skeleton argument of Ms Busch who appears for the Secretary of State. A challenge to the decision of an Inspector on a planning application made under section 288 of the 1990 Act may be made on standard public law grounds, including the grounds that the Inspector's conclusion was perverse, that he failed to take account of relevant considerations or took account of irrelevant ones, and that he failed to give reasons which were proper and adequate, and/or clear and intelligible, and/or which dealt with the substantial points which had been raised in a preceding Inquiry ( Seddon Properties v Secretary of State for the Environment [1978] JPL 835 per Forbes J; cited in Bolton MBC v Secretary of State for the Environment [1991] JPL 241 (CA)).

11

The weight to be attached to material considerations and matters of planning judgment are within the exclusive jurisdiction of the Inspector ( Tesco Stores Ltd v Secretary of State [1995] 1 WLR 759).

12

An Inspector is not writing an examination paper. His decision-letter must be read in good faith and references to policies must be taken in the context of the general thrust of the Inspector's reasoning. The adequacy of reasons must be assessed by reference to whether the decision leaves room for genuine doubt as to what the decision-maker has decided and why, on a straight-forward, down-to-earth reading of the decision, without excessive legalism or exegetical sophistication ( South Somerset DC v Secretary of State for the Environment [1993] 1 PLR 80 at 83E-G and Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P&CR 263 at 271–271).

13

Similarly it is common ground that the requirement to give reasons is accurately summarised by Lord Brown of Eaton-Under-Heywood in South Bucks DC v Porter [2004] 1 WLR 1953, at 1964 at paragraph 36 as follows:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example, by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision".

14

Reliance is also placed in Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council (1993) 66 P&CR 263, where Sir Thomas Bingham MR said at p271–272 that the question, when dealing with an allegation of inadequate reasoning in a decision of the Secretary of State, is whether the decision letter

"leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his...

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