Wind Prospect Developments Ltd v Secretary of State for Communities and Local Government and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMrs Justice Lang
Judgment Date05 December 2014
Neutral Citation[2014] EWHC 4041 (Admin)
Docket NumberCase No: CO/3043/2014
Date05 December 2014

[2014] EWHC 4041 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mrs Justice Lang DBE

Case No: CO/3043/2014

Between:
Wind Prospect Developments Limited
Claimant
and
(1) Secretary of State for Communities and Local Government
(2) East Riding of Yorkshire Council
Defendants

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

Stephen Whale (instructed by The Treasury Solicitor) for the First Defendant

The Second Defendant did not appear and was not represented

Hearing date: 25 th November 2014

Mrs Justice Lang

Introduction

1

The Claimant applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash a decision of the First Defendant ("the Secretary of State"), dated 21 st May 2014, to dismiss an appeal by the Claimant against refusal by the Second Defendant ("the Council") of planning permission for a wind farm at Thornholme Field, between Driffield and Bridlington, East Yorkshire ("the site").

2

The Council refused planning permission for the erection of 6 wind turbines at the site on 19 th December 2012, for the following reasons:

i) The turbines would cause unacceptable interference to the radar at a nearby RAF station.

ii) The proposal did not accord with the Development Plan or the NPPF.

iii) The site is located in the Yorkshire Wolds, designated as an Area of Landscape Protection in the Local Plan. The East Riding of Yorkshire Landscape Character Assessment (Landscape Character Type 13D) assessed the landscape as high quality with a high sensitivity to wind farm development.

iv) The height, number and location of the turbines would introduce uncharacteristic vertical structures into a relatively unspoilt part of the Wolds. They would be visually dominant, detrimental to the landscape quality, visual amenity and rural character of the area.

v) Visual perception on the part of walkers, motorists and visitors to Burton Agnes Hall would be affected.

vi) The impact on the setting of the nationally significant heritage assets at nearby Burton Agnes Hall (Grade 1 listed) would be harmful, introducing turbines within important views.

vii) Benefits relating to the provision of renewable energy would not outweigh these adverse landscape and visual effects.

3

The Claimant appealed, and on 12 th March 2013, the Secretary of State decided to determine the appeal himself, pursuant to section 79 and paragraph 3 of Schedule 6 to the TCPA 1990.

4

An Inspector (Mr P. Griffiths) was appointed to prepare a report and recommendation for the Secretary of State. He held an inquiry, at which he heard evidence for and against the proposal, and he conducted a series of site visits. By the time of the inquiry the Ministry of Defence had withdrawn its radar objection, accepting that its concerns could be met by conditions, so the Council did not seek to maintain that reason for refusal.

5

The Inspector reported on 21 st November 2013, recommending that the appeal should be allowed and planning permission granted, subject to conditions. He concluded:

"10.108 The proposal would cause a limited degree of harm to the landscape and to the setting and thereby less than substantial harm to the significance of designated heritage assets. On that basis, the proposal fails to accord with JSP Policies SP4, SP5 and ENV6 and LP Policies EN2, EN3 and EN20, and their successors in the DSD. Against that, the proposals would bring significant benefits through the generation of renewable energy, general economic activity, and in terms of the improved viability of the farms concerned. Given that those benefits could be secured without undue harm to the landscape, living conditions, ecology or archaeology, the proposal complies with LP Policy EN25, said by the main parties to be overarching. However, it is the approach of paragraph 14 of the Framework … that is the most important consideration."

"10.110 … paragraph 14 … sets out that where the relevant policies of the development plan are out of date, permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework, taken as a whole…. in my judgment, the harm that would be caused by the proposal would not come close to that and the benefits the proposal would bring would far outweigh the harmful impacts. Paragraph 98 of the Framework says that a proposal such as this should be approved if its impacts are, or can be made, acceptable. That is very clearly the case here."

6

The Secretary of State did not agree with the Inspector's conclusions and did not follow his recommendations. In his decision letter dated 21 st May 2014, he dismissed the appeal, concluding that the harmful aspects of the proposals significantly and demonstrably outweighed the benefits. Factors such as visual impact, impact on residential amenity, harm to tourism, coupled with the failure of the scheme to preserve the setting of Burton Agnes Hall and other heritage assets, together outweighed the need for the proposal and its wider economic benefits.

Statutory framework

7

Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with and in consequence, the interests of the applicant have been substantially prejudiced.

8

The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety. The exercise of planning judgment and the weighing of the various issues are entirely matters for that decision-maker and not for the Court. See Seddon Properties v Secretary of State for the Environment (1978) 42 P &CR 26.

9

The determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise: section 38(6) of the Planning and Compulsory Purchase Act 2004, read together with section 70(2) TCPA 1990. The National Policy Planning Framework ("NPPF") is a material consideration for these purposes.

10

The duty under the equivalent Scottish provision was explained by Lord Clyde in Edinburgh City Council v. Secretary of State for Scotland [1997] 1 W.L.R. 1447, at p.1459:

"In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will be required to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse."

11

This statement of the law was approved by the Supreme Court in Tesco Stores Limited v Dundee City Council [2012] UKSC 13, [2012] P.T.S.R. 983. Lord Reed (with whose judgment Lord Brown, Lord Hope, Lord Kerr and Lord Dyson agreed) rejected the proposition that each planning authority was entitled to determine the meaning of development plans from time to time as it pleased, within the limits of rationality. He said, at [18], that development plans should be "interpreted objectively in accordance with the language used, read in its proper context". They are intended to guide the decisions of planning authorities, who should only depart from them for good reason.

12

Lord Reed re-affirmed well-established principles on the requirement for the planning authority to make an exercise of judgment, particularly where planning policies are in conflict, saying at [19]:

"That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must...

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