Welsh Ministers and Another v Rwe Npower Renewables Ltd

Hearing dates : 14 February 2012

This is an appeal against a decision of Beatson J made on 8 July 2011 by which, on the application of RWE NPower Renewables Limited ("the respondents"), he quashed a decision of the Welsh Ministers ("the appellants") made on 21 February 2011 dismissing the respondents' appeal, under section 78 of the Town & Country Planning Act 1990, against the deemed refusal by the City and Council of Swansea of planning permission for a wind farm. In making the decision, the appellants accepted the recommendation of an Inspector appointed by them who conducted a local public inquiry between 20 July and 6 August 2010. Other issues were before the judge which are not raised in the present appeal.

The judge held that the decision was "affected by a deficiency in the reasons" (the first issue). The judge was also inclined to the view that there has been procedural unfairness (the second issue).

The facts

The respondents had applied for planning permission to install a wind farm at Mynydd Y Gwair for 19 wind turbines with a maximum height of 127m to the blade tip and associated infrastructure including 13.9 kilometres of new access track. The site is on the northern outskirts of Swansea, towards Ammanford, and consists mainly of grazed moorland containing peat deposits.

When submitting their application for planning permission, the respondents included an Environmental Statement ("ES") which asserted that wind farm infrastructure would be situated away from significant peat cover. It was said that such areas would be avoided. In January 2010, the Countryside Council for Wales ("CCW") produced guidance for wind farm developments affecting peat resources and a draft policy statement. As a result, the respondents commissioned BIOSCAN to produce a more detailed study of peat depth, extent and physical characteristics.

The judge summarised the results of the survey and commented on it at paragraphs 15 to 18 of his judgment:

"15. The introduction to Bioscan's report states that its more detailed study of peat depth is to inform decisions on the scope and nature of any mitigation that may need to be undertaken. Paragraph 3.2.3 stated that the more detailed survey undertaken delineated some 'limited areas of peat thicker than 30cm (300mm)', 'two patches of peat 300 – 600mm thick', and a greater extent of thick peat at the watershed with the adjoining catchment of the Afon Cathan with 'an extensive area of peat 300 – 600mm' containing 'a core of 600 – 1000mm and two small patches of peat thicker than 1000mm'. The report also stated (paragraph 4.1) that the location proposed for turbine 4 was on an area with a peat deposit with a depth of more than 1000mm, that turbine 5 was located on a peat deposit with a depth of 300 – 600mm, and that micro-siting within a 30 metre allowance would not take these turbines outside these deeper peat deposits.

16. CCW's written submission to the inquiry stated that it was apparent following the submission of the SEI that 'the peat resource is more substantial than the original ES determined and that peat…will be directly affected by turbines and access tracks': see paragraph 4.3.2. At paragraphs 4.3.3 – 4.3.10 CCW made a number of general comments about the importance and sensitivity of peat land habitats and stated wind farm developments should avoid impacts to peat as far as possible. At paragraph 4.3.4 it stated that 'operational decisions about whether particular impacts are tolerable will depend on many factors, including site status, the importance of the peatland features, likely significance of impact, potential benefits offered by Habitat Management Plans and the adequacy of mitigation'. CCW also considered (see paragraph 4.3.5) it critical to develop a site layout which substantially avoided the peat resource in the first place.

17. Paragraph 4.3.7 of CCW's submission states that the peat land resource at the site has additional significance 'given its location close to the bio-geographical limit of the resource in Wales, and the importance of conserving edge of range examples' and (at paragraph 4.3.8) any additional pressure on the relatively small and often fragmented blocks of peat in the South Wales coalfield is likely to increase its vulnerability.

18. At paragraph 4.3.11, CCW stated that, if permission is granted, the allowable distance for micro-siting should be 100 metres, rather than the 30 metres proposed. It stated that it was particularly concerned with turbine 4 and the associated track, and turbines 9 and 13 and their associated tracks. The former is on deep peat of over 1000mm."

The first issue

The appeal, in my judgment, turns on a short point. It is not submitted that the decision was irrational; the submission is that it was insufficiently reasoned. The Inspector summarised relevant planning policies and considered, in considerable detail, the many issues which arose from the proposal and identified by him as key issues: planning policy, landscape and visual effects, access track, provision of renewable energy, effect on habitat, noise, effect on wildlife, effect on footpaths and recreation, effect on tourism, shadow flicker, effect on scheduled ancient monuments, water supply, effect on farming and other matters. He concluded:

"115. I have already concluded above that this proposal is in conflict with critiera ii and iii of UDP Policy R11. Therefore, having regard to Section 38(6) of the Act, permission should only be granted if material circumstances indicate otherwise. I have weighed all the aspects raised against the proposal and balanced them against the benefits of granting permission. I place significant weight on the WAG and UK Government policies and targets and in particular to those in TAN 8. Also on the facts that this proposal is likely to be seen from most vantage points as part of a single larger wind farm with that at Mynydd y Betws, and the ability to link this site directly into the national grid.

116. Setting aside for the moment the question of the effect of the proposal on the peat habitat, I am 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. In general terms a development of this number of turbines up to a maximum height of 127m is acceptable in this location. However, for the reasons given, the effect on the peat habitat cannot be overcome by the imposition of conditions designed to mitigate the harmful effects. For this reason I conclude that permission should not be granted.

117. If my recommendation is not accepted and the conclusion is reached that this harm is outweighed by the benefits of the proposal, then planning permission should be granted subject to the conditions outlined above."

Apart from the conclusion on the effect on habitat, the report could hardly have been more favourable to the respondents.

What was crucial, in the Inspector's view, was the harmful effect of the proposed development on the peat bog habitat. It was significant and permission should not be granted. In his view, the problem could not be overcome by the imposition of conditions. His planning judgment, summarised at paragraph 116, is further set out at paragraphs 90 and 91:

"90. On the site inspection I observed that the location of turbine 4 was almost in the centre of the deepest section of peat. The main access track would pass this turbine and cross most of this central area of peat. Also, turbines 9 and 13 and associated tracks and sections of the access track near turbines 6, 7 and 8 would directly affect the peat in those areas of the site. The location of the peat deposits in relation to the turbines and tracks are shown on Fig 1 in Doc CD19 (h)(ii). It appears to me that the layout of turbines and tracks was established before the true extent of the peat deposits was known. Whilst some mitigation, such as 'floating tracks', could reduce the impact of the wind farm on the peat, there would still be a significant degree of impact on the peat deposits. The site is on the extremity of the peat habitat in South Wales and therefore it is of greater importance as a resource. It appears to me that a relatively minor redesign of the layout might remove most, if not all, of the impact on the peat deposits. However, this would result in a different proposal to that described in the ES and would go beyond an amendment that should be considered as part of the current proposal.

91. I note that CCW did not attend the inquiry and their evidence could not be subject to cross-examination (31). However, I have come to my conclusions on this matter having regard to the appellant's evidence (Doc CD18 (h)) and from my own observations on site. In my view the risk of an unacceptable degree of harm to the peat habitat is sufficient to justify refusal of this proposal."

In their decision letter of 21 February 2011, the appellants repeated that recommendation and stated at paragraph 20:

"… the Minister agrees with the Inspector's...