The Queen (on the application of Jonathan Mark Isherwood Carter) v City and County of Swansea RWE Innogy UK Ltd (Interested Party)

JurisdictionEngland & Wales
JudgeMr Justice Phillips
Judgment Date22 January 2015
Neutral Citation[2015] EWHC 75 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/1793/2014
Date22 January 2015

[2015] EWHC 75 (Admin)




Cardiff Civil & Family Justice Centre


The Honourable Mr Justice Phillips

Case No: CO/1793/2014

The Queen (on the application of Jonathan Mark Isherwood Carter)
City and County of Swansea


RWE Innogy UK Limited
Interested Party

Douglas Edwards QC (instructed by Richard Buxton Solicitors) for the Claimant

Robin Green (instructed by Legal, Democratic Services & Procurement, City and County of Swansea) for the Defendant

John Litton QC (instructed by Eversheds LLP) for the Interested Party

Hearing dates: 14 and 15 October 2014

Mr Justice Phillips

On 10 March 2014 the defendant ("the Council") granted planning permission, pursuant to an application by the interested party ("RWE"), for the development of a wind farm at Mynydd-y-Gwair, a large grazed common about 15km north of the centre of Swansea ("the Site"), together with the construction of new access track (approximately 14.54km) from the A48 at Pontarddulais.


A resolution to grant permission had been passed at a meeting of the Council's Special Development Management and Control Committee ("the Committee") on 7 February 2013, the Committee adopting the reasoning and recommendation of a report presented by the Council's Head of Economic Regeneration and Planning ("the Report"): at that time there was no statutory obligation on a planning authority in Wales to give reasons for a planning decision. The delay in the formal grant of planning permission was pending RWE's assumption of a planning obligation pursuant to s.106 of the Town and Country Planning Act 1990 ("the 1990 Act") as required by the Committee's resolution.


The planning permission, for 16 wind turbines (maximum height to blade tip of 127m with a hub height of 80m), was subject to certain conditions, including that construction and operation of the development would be in accordance with construction method statements to be submitted and agreed addressing (i) measures for the protection of water courses and ground water and soils (condition 7j) and (ii) measures to ensure the protection of the structural condition of, in particular, a 66 inch public water main running through the site (condition 12).


By these judicial review proceedings the claimant, a resident living close to the Site, challenges the grant of planning permission on three grounds. His first contention is that the Council failed to determine the application in accordance with the applicable statutory test. It is common ground that, by virtue of the combined effect of s. 70(2) of the 1990 Act and section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"), the Council was required to determine the application for planning permission " in accordance with the [development] plan unless material considerations indicate otherwise". The claimant contends that the Report (and therefore the Committee, in basing its resolution on the Report), did not properly consider and apply that statutory presumption and accordingly failed to give the required priority to the development plan. The Council and RWE both reject that contention, submitting that the Report gave all due weight to the development plan.


By his second and third grounds, the claimant contends that both the condition imposed in relation to protecting water courses and the condition in relation to protecting water mains were unlawful (in ether case rendering the grant of permission itself unlawful). The claimant asserts that there was no evidence before the Committee that measures were available which were capable of meeting the planning objections they were intended to address, with the result, the claimant contends, that the Council could not have formed the view that those conditions were necessary and reasonable. The Council and RWE rely on the fact that the conditions were proposed by the statutory water undertaker and contend that they were accordingly both necessary and reasonable

The background facts

(a) The previous application made by RWE


RWE had made a previous application for planning permission to develop a wind farm at the Site in August 2008. That application proposed the installation of 19 wind turbines and new access track 13.8km in length ("the Original Scheme").


Shortly thereafter, in November 2008, the Council adopted a new Unitary Development Plan ("the UDP"), which was the relevant development plan to be considered in determining the application in relation to the Original Scheme (and was still the relevant development plan for the purposes of the Council's consideration of the present application). The UDP includes Policy R11, which states that:

" Proposals for the provision of renewable energy resources will be permitted provided:

(ii) the scale, form, design, appearance and cumulative impacts of proposals can be satisfactorily incorporated into the landscape, seascape or built environment and would not significantly adversely affect the visual amenity, local environment or recreational/tourist use of these areas,

(iii) there would be no significant adverse effect on local amenity, highways, aircraft operations or telecommunications."


As the Council did not determine the application in time, RWE appealed. The appeal was heard in 2010 by an Inspector appointed by the Welsh Ministers. In addition to broad objections to the construction of a wind farm on the Site, there was a specific concern that the proposed positioning of the wind turbines would harm the peat bog habitat on the Site, the proposed location of three of the 19 turbines being on deep peat deposits.


In his report dated 27 October 2010, the Inspector concluded as follows:

i) the Original Scheme would have a significant adverse impact on the local environment and was accordingly in conflict with, in particular, Policy R11 of the UDP;

ii) accordingly, having regard to s.38(6) of the 2004 Act, permission should only be granted if material cconsiderations indicated otherwise;

iii) factors of significant weight included (a) Welsh Assembly Government ("WAG") and UK Government policies and targets for renewable energy provision, in particular, Technical Advice Note (Wales) 8: Planning for Renewable Energy (July 2005) ("TAN 8"), (b) the fact that there was already a wind farm development on neighbouring land at Mynyyd y Betws, and (c) the ability to link the Site directly into the National Grid;

iv) apart from the question of the effect of the proposal on the peat habitat, the benefits of the production of renewable energy from the Site would outweigh the conflict with the development plan and all other material considerations;

v) however, the effect on the peat habitat could not be overcome by the imposition of conditions. For that reason, permission should not be granted for the Original Scheme.


In a decision letter dated 21 February 2011, the Welsh Minister for the Environment, Sustainability and Housing accepted the Inspector's recommendation and therefore dismissed RWE's appeal and refused planning permission for the Original Scheme. The Welsh Minister adopted the same reasoning as the Inspector, starting with the question of whether the Original Scheme would be in conflict with the development plan:

"9. Section 38(6) … provides that planning applications and appeals should be determined in accordance with the development plan unless material considerations indicate otherwise. With this in mind the Minister agrees with the Inspector that the proposal would be in conflict with criteria (ii) and (iii) of UDP Policy R11 and takes the view that, having regard to section 38(6), planning permission should be refused unless material circumstances indicate otherwise.

10. The Inspector considered a wide range of issues arising from the proposed development and, setting aside its effect on the peat bog habitat, he was satisfied that the benefits of the production of renewable energy from this proposal would outweigh the conflict with the development plan and all the other material considerations. Subject to the following comments the Minister, also setting aside the effect of the proposed development on the peat bog habitat, agrees the Inspector's conclusions on the other issues raised by the proposed development.


20. … the Minister agrees with the Inspector's conclusions and accepts that the development as proposed raises the risk of an unacceptable degree of harm to the peat habitat which is sufficient to justify refusal of this proposal."


RWE challenged the dismissal of its appeal by an application to the High Court under s. 288 of the 1990 Act. That challenge was successful at first instance, but that decision was reversed by the Court of Appeal [2012] EWCA Civ 311. However, the Court of Appeal noted that it was open to RWE " so to reposition the turbines and access tracks that their impact on the peat bog habitat is reduced and to make a fresh application for planning permission accordingly": per Pill LJ at paragraph 35.

(b) The present application


RWE duly revised its proposal so as to remove the risk of damage to the peat habitat at the Site, reducing the number of wind turbines to 16 and relocating the access track. The present application for planning permission, for the revised proposal, was made on 3 September 2012.

(c) The Report


The Report was a detailed document, running to 151 pages. It was prefaced by a summary which expressly stated that it was not a substitute for the Report's detailed consideration, but a guide to its contents. The summary of the Report's...

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