England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Sullivan)

		The Royal Courts of Justice Strand London WC2 Tuesday 30th July, 2002

1. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against the decision of Sullivan J given in the Administrative Court on 2nd May 2002. On that occasion the judge dismissed the applicant's application for judicial review directed to the decision of the Secretary of State taken on 29th March 2001 to refuse the applicant's application under section 36 of the Electricity Act 1989 for consent to construct and operate a wind farm at Humble Hill, Kielder, Northumberland, and also to refuse to give a direction under section 90 of the Town and Country Planning Act to the effect that planning permission should be deemed to be granted for the wind farm proposal. Permission to appeal was refused by myself on consideration of the papers on 20th June 2002.
2. Judicial review permission had originally been refused on the papers by Maurice Kay J. The application was however restored in court before Ouseley J on 14th December 2001, when the applicant and the Secretary of State were both represented by counsel. Ouseley J gave a detailed judgment, much of which was replicated by Sullivan J as setting out the background. I will simply take the material passages from paragraphs 4 and 5 of Sullivan J's judgment:

"The application in question made by the claimants has had a long gestation. The length of the gestation is attributable to the objections and negotiations over the objections to the proposal, which eventually were raised by the RAF and the Ministry of Defence because of the proximity of the proposal to RAF Spadeadam. RAF Spadeadam contains a Tactical Training Area which is constituted by the Spadeadam Electronic Tactics Range. The purpose of that facility is to provide training facilities which the Secretary of State regards as unique and imperative for the front line training of RAF crews. In particular, the facility is used for the training of RAF aircrew in low flying under attack, and is a training situation where sudden low-level evasive manoeuvres are required in response to simulated surface-to-air missile attacks, and where the plotting of the aircraft on radar is also important.

The RAF initially did not raise objection to these proposals. But eventually objection was raised by the Ministry of Defence and the RAF, which perhaps can be seen as having taken its fullest form in the production of papers in November 1993, and more particularly on 21st July 1994; a long paper. The 1993 paper was a technical note of July 1993 from the RAF Spadeadam's engineering establishment.

As one can imagine, faced with objections of that nature and from that body, the promoters sought to obtain their own expert material in relation to those matters, and to provide that to the Ministry and to negotiate with them...

Nonetheless, in February 1995 the Ministry of Defence repeated in summary form those objections to the Department of Trade and Industry.

Conscious of the problems which that posed for them, the claimants sought to reduce the number of turbines and to rearrange their array, replacing them with some larger turbines but fewer in number, and provided a different and additional environmental statement in support of what they were describing in an amended application. The further material that was provided included observations in relation to the Ministry objections.

The Ministry also objected to the proposal [on] 27th June 2000, and commented in four paragraphs ... as follows...:

`2. Our stance remains unchanged from 1993, that is, a windfarm operating in the vicinity of the RAF Spadeadam Electronic Warfare Tactics Range (EWTR) would be unacceptable. The facilities of the EWTR are unique and this training is imperative for the front line training of RAF crews. The Ministry of Defence must safeguard the tactical training value of the range. It is our belief that the proposed Kielder windfarm would interfere with radar and also with low flying, creating an acute safety hazard both to members of the public and RAF aircrews.

3. Current studies have not conclusively proved that the rotating action of wind turbine blades has no effect on ground or airborne radar. Therefore, we must rely on our own research which concludes that wind turbines cause interference to primary surveillance radar and also that detention and tracking of aircraft flying over a windfarm is extremely difficult since the responses between the aircraft and the turbine cannot be distinguished.

4. The Kielder turbines are estimated to be 82m (approx 240ft) to turbine tip. The RAF Spadeadam EWTR is a tactical Training Area (TTA) where aircraft can be flown at 100ft above ground level, which is significantly lower than the 250ft minimum that applies to the rest of the UK low flying system. Therefore, for the safety of members of the public and aircrews it is imperative that any hazard to low flying aircraft are minimised, especially those that exceed 100ft in height.

5. The safety of flight is paramount and flight safety considerations and aircrew workload play an integral part. These components assume increased importance when operating within a high workload environment such as the EWTR and the associated TTA. Notwithstanding the 'terrain screening tactics' alluded to by EcoGen, pilots flying in this area are subjected to simulated surface to air missile attacks and they respond with sudden low level evasive manoeuvres. Whilst pilots are avoiding missile attacks it is an unacceptable flight safety hazard to place 107 wind turbines each 240ft high in the same area.'"

5. The judge continued in paragraph 10 of his judgment:

`The unpromising stance of the Ministry of Defence did not deter EcoGen from continuing to contend that there were things which could be said that would explain that the fears of the MoD could at least in part be allayed. EcoGen wrote to the Department of Trade and Industry on 2nd December 2002 stating that they understood that the MoD public position had not changed, and they would be interested to learn the latest status of their application for consent.

They commented:

'However, with all the positive work carried out in other countries regarding wind energy and aviation interest, we would be very interested to learn what new work has been carried out by the MoD.'.

Plainly EcoGen were at this stage concerned that the Ministry was relying on new research - research which did not tally with information which EcoGen had obtained from a consideration of the effect of a nearby wind turbine on RNAS Culdrose in Cornwall - and wrote to the Minister for Energy and Competitiveness in Europe on 20th March 2001, referring to the efforts and expenditure of money that they had committed to the project, well over 600,000 and saying:

'Throughout the process limited information has been presented to us by the Ministry of Defence, and little cognisance has been made of information regarding wind turbines and aviation interests from studies and real experience in Sweden, Denmark and the USA. There has been no opportunity for us to meet with the MoD and present our suggestions for maximising benefits and minimising impacts.'.

The upshot of that letter was the decision letter which is dated 29th March 2001:

'The Secretary of State has considered your application dated 14 April 1993 and varied on 18 April 2000 for consent under section 36 of the Electricity Act 1989 to construct and operate a 80 MW windfarm at Humble Hill, Kielder, Northumberland, and for a direction under section 90(2) of the Town and Country Planning Act 1990 ('the Planning Act') that planning permission be deemed to be granted.

The Secretary of State has considered your application carefully and in particular the contribution of the protect towards the Government's target of reducing emissions of 'greenhouse gasses'.

He is also aware that the Tynedale Council and Northumberland County Council, the relevant planning authorities, raised no objection in principle to the proposal. Their decisions were subject to the provision of suitable conditions attached to any planning permission the Secretary of State may have deemed to be granted and the Company entering into an agreement under section 106 of the Planning Act. Subject to agreement on the terms of the planning conditions and the section 106 agreement the RPAs would not have maintained their objections and therefore the Secretary of State would not have been obliged to hold a public inquiry. He was also of the opinion that the other objections he received to the proposal were not sufficient for him to exercise his discretion to hold a public inquiry.

However, as you know, the Ministry of Defence (MOD) objected to the original proposal on the grounds that the wind turbines would interfere with primary and secondary radar and therefore impairing the effectiveness of the nearby Spadeadam Electronic Tactics Range (EWTR). In an effort to overcome the MOD's objection the Company reduced the number of wind turbines and reconfigured their location on the site. To this effect the Company submitted a variation to the application on 18 April 2000.

The Secretary of State is aware that further consultations were undertaken with the MoD. The conclusion of those consultations was that the MoD maintained their original objection, that is, a windfarm operating in the vicinity of the EWTR would be unacceptable as the training facilities of the EWTR are unique and imperative for the front line training of RAF crews. MoD believe that the proposed windfarm would interfere both with radar and also with low flying, creating an acute safety hazard both to members of the public and RAF crews.

The MoD indicated that current studies have not conclusively proved that the rotating action of wind turbines blades has no effect on ground or airborne radar. Therefore they rely purely on their own research which concludes that wind turbines cause interference to primary surveillance radar and also that detection and tracking of aircraft flying over a windfarm is extremely difficult since the responses between the aircraft and the turbine cannot be distinguished.

MoD further indicated that the Spadeadam EWTR is a Tactical Training Area (TTA) where aircraft can be flown at 100ft above ground level, which is significantly lower than the 250ft height which applies to most of the rest of the UK low flying system. Therefore for the safety of members of the public and aircrews it is imperative that any hazards to low flying aircraft are minimised, especially those hazards over 100ft high. The safety of low-level flying assumes increased importance in a high workload environment such as EWTR and the associated TTA. Notwithstanding the 'terrain screening tactics' alluded to by the Company, pilots flying in this area are subject to simulated surface to air missile attacks and respond with sudden low level evasive manoeuvres. Whilst pilots are carrying out such manoeuvres it is an unacceptable flight safety hazard to place 107 wind turbines each of approximately 2450ft high in the same area.

SECRETARY OF STATE'S DECISION.

The Secretary of State has fully considered your application including the environmental benefits and the Government's commitment to the Kyoto Obligation to reduce emissions of greenhouse gasses. However he has also to take into account the needs of others, in this case, the Ministry of Defence, and their duty of care to members of the public and aircrew and how best to prepare the RAF to meet the military threat. He agrees that the Spadeadam EWTR is an integral part of the training of RAF aircrew, providing facilities unique in Europe. He also believes that the site of the proposed windfarm in relation to the Spadeadam EWTR could create a hazard to the safety of aircrew and consequently the public which would outweigh the other benefits mentioned above.

The Secretary of State takes the view that national security, the importance of the Spadeadam EWTR in the training of RAF aircrew and consideration of safety leave him no option but reluctantly to refuse to grant consent under section 36 of the Electricity Act 1989 and not to give a direction under section 90 of the Planning Act."

3. Sullivan J records further passages from the judgment of Ouseley J where he referred to the discretion vested in the Secretary of State by paragraph 3(2) of Schedule 8 to the Electricity Act 1989 to convene a public inquiry, and accepted Mr McCracken's submission that the applicant had been given no opportunity to make representations as to why an inquiry or other hearing ought to be held. In the result, Ouseley J granted judicial review permission to argue one ground only, namely:

"The Secretary of State failed to give the claimant an opportunity to explain why an inquiry or other hearing should be held and acted unfairly in failing to offer that opportunity."

4. That then was the point that went before Sullivan J on 2nd May 2002. It was submitted in the skeleton argument prepared by counsel for the Secretary of State that, given the nature of the Ministry of Defence's objection to the wind farm proposal, it was inconceivable that the Secretary of State might change his mind following a public inquiry.
5. In response Mr McCracken for the applicants relied on the well-known passage from the judgment of Megarry J in John v Rees [1970] 1 Ch 345 at 402, about the seemingly unchangeable being changed after all.
6. However there was a twist in the case which caused Sullivan J for his part to conclude that it was unnecessary to resolve the issue thus joined between the parties. This is what he said:

"The sole unfairness identified by the judge [Ouseley J] was the failure to give the claimant an opportunity to explain why there should be an inquiry. Has that unfairness been remedied?

13. On 2nd January 2002 the Treasury Solicitor wrote to the claimant's solicitors saying:

`It is therefore the position that the Court has taken the view that the case should proceed on the single point of procedural unfairness. In these circumstances the Secretary of State undertakes to reconsider his decision of 29th March 2001 in the light of any representations which your Clients may now wish to make, and I would be glad to hear from you as soon as possible that this proposal is agreed'.

14. At least initially it seemed that this very sensible suggestion might bear fruit. The response from the claimant's solicitors dated 7th January said, inter alia:

`We believe that this matter may be disposed of by way of a consent order to withdraw proceedings, but we are uncertain as to whether we will still require the decision of the 29th March 2001 to be formally quashed...

It may take our client a period of time to prepare written representations as to why a public inquiry should have been held. I understand that you are in no difficulties in respect of this matter.

Any agreement to withdraw proceedings by consent is subject to an agreement that our costs be paid by the Secretary of State.'

15. This, it can be seen that, subject to being given sufficient time, there was no practical reason why the claimant could not provide written representations explaining why there should be an inquiry.

16. The Treasury Solicitor replied on 25th February, which:

`We do not agree your proposal that this matter be disposed of by way of a consent order to withdraw your Client's claim, or to quash the decision of 29th March 2001. Instead we consider that the proceedings should be stayed generally by consent, whilst your Client makes written representations as to why it considers that a public inquiry should have been held.'

17. The claimant's solicitor's response to that, in a letter dated 28th February 2002, was:

`Given that the planning application has been formally refused, we do not believe that the Secretary of State has any discretion or power to either ignore or override this previous refusal, and your proposal to stay the proceedings would leave our client in a legal limbo, having had planning permission refused on the one hand, whilst having further representations being considered by the Secretary of State on the other. I hope that you will agree that this situation would be highly unsatisfactory to say the least.

Of course, if it is your client's position that the Secretary of State has such a discretion or power available to effectively ignore a previous refusal of planning permission without the need to formally quash the decision I would be grateful to be informed as to the authority upon which you rely.'

18. The Treasury Solicitor responded on 8th March 2002, saying:

`I have informed you that my client cannot agree to a quashing of the decision of 29 March 2001, and takes the view that your client should, if so advised, now make representations as to why it considers that a public inquiry should be held. If, as you state, your client is unable to agree to this course, my instructions are that the matter should proceed to a full hearing on the date now listed...'

19. Notwithstanding these three invitations, the claimant has made no representations to the Secretary of State as to why it is contended that an inquiry should take place. When I asked Mr McCracken why that had been the claimant's approach, since its sole complaint was that it had not been given an opportunity to make representations as to why there should be an inquiry, he replied that the Secretary of State could not give a "real and meaningful" opportunity to the claimant to make representations as to whether there should be an inquiry unless he, the Secretary of State, had power to hold an inquiry. Unless and until the decision of 29th March 2001 was quashed, there was no power to hold an inquiry. Thus, the Secretary of State could not give any real and meaningful consideration as to whether to hold an inquiry (that being something that it was not within his power to allow).

20. I have no hesitation in saying that the claimant's attitude in this matter is unreasonable and absurd. The sole arguable complaint is that the claimant did not have an opportunity to explain to the defendant why an inquiry or other hearing should be held. When the claimant is offered that opportunity by the defendant, instead of seizing it and making representations it engages instead in legalistic bickering and declines to provide any explanation as to why there should have been an inquiry or a hearing.

21. The submissions advanced on behalf of the claimant look solely to form rather than substance. It was perfectly possible for the Secretary of State to give "real and meaningful" consideration to the discrete issue as to whether or not there should be an inquiry. As Ouseley J pointed out in his judgment, while the Secretary of State had considered whether or not an inquiry was desirable, from the point of view of objectors to the proposal, there is was consideration in the decision letter as to whether or not an inquiry should be held from the claimant's point of view.

22. Ouseley J was able to identify as a discrete issue the failure to give the claimant an opportunity to explain why there should be an inquiry. That issue having been identified, there is, it seems to me, no real difficulty at all in the Secretary of State seeing whether there are any arguments for holding an inquiry and then deciding, in the light of that information, whether or not it is appropriate to consent to the quashing of his decision. Mr McCracken asked rhetorically, why should the decision not be quashed, before the Secretary of State considers the claimant's representations as to why there should be an inquiry. If the representations do not raise any issue of substance the decision would have been quashed in vain. Moreover, it is not for the Secretary of State to justify the continued validity of his decision letter. The onus is on the claimant to persuade the court that it should be quashed.

23. Judicial review is not concerned with technical complaints. An application for judicial review should not be treated as a procedural game. The court is there to remedy real unfairness. The claimant's skeleton argument did not explain why there should be a public inquiry.

24. Before me Mr McCracken was able to advance a number of reasons as to why the claimants would contend that an inquiry would be appropriate. There is no explanation whatsoever as to why those reasons could not have been provided prior to this hearing to the Secretary of State (if it was felt necessary 'without prejudice' to the contention that the decision should first be quashed)."

7. In the result Sullivan J concluded:

"27. In these circumstances, whatever the merits of the original decision, the court, in the exercise of its discretion, should decline to quash the decision of 29th March 2001 on the ground that the claimant should have been given an opportunity to explain why there should be a public inquiry. The claimant has been given ample opportunity to explain why there should be a public inquiry. There has been not simply one invitation, but no less than three invitations in the letters of 2nd January, 25th February, and 8th March. Having been asked three times to provide an explanation, and refused to do so, it is far too late for the claimant to provide an explanation to this court. The claimant's refusal to provide (even on a "without prejudice" basis), any explanation to the defendant as to why an inquiry would be appropriate was thoroughly unreasonable.

28. For these reasons, I am entirely satisfied that it would not be right as a matter of discretion to quash the decision of 29th March on the sole ground of challenge, which Ouseley J permitted the claimants to advance."

8. In this court it is said that the Secretary of State had no power to hold an inquiry or otherwise redetermine the matter unless her previous decision were quashed, and the substantive issue would in any event have had to be resolved in determining what was the proper order to make for costs. In these circumstances it is said a reasonable litigant might apprehend that the Secretary of State would not consider any representations made to him with an open mind.
9. In his oral submissions this morning Mr McCracken submitted in terms that the reasonable man, not being an expert lawyer versed in the ways of the Treasury Solicitor, would on the facts here effectively be unable to accept that the Secretary of State would view the representations that might be made about a rehearing in what Mr McCracken described a real and meaningful way.
10. I have to say that I regard all of these submissions as, frankly, spurious. There is no reason to suppose that representations as to why an inquiry should be held would not be fairly considered. I see no basis on which the reasonable bystander should take such a poor view of government and its advisers as to suppose unfairness in such a set of circumstances. If the Secretary of State concluded that an inquiry should be held, then the earlier decision could be quashed by consent in the judicial review proceedings which would have been stayed had the Treasury Solicitor's proposal been accepted, and on that occasion the court could have been invited of course to consider any appropriate arguments as to costs.
11. I am afraid I think that this is a case in which the applicants by their advisers have been playing procedural games, and I would dismiss this application.
12. LORD JUSTICE JONATHAN PARKER: I agree.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)