England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(HIS HONOUR JUDGE ROBINSON QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th June 2011

Lord Justice Sullivan:

1. This is an appeal against the order dated 28 July 2010 of HHJ Robinson sitting as a deputy High Court judge, allowing the first respondent's application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of the planning Inspector appointed by the second respondent, the Secretary of State, allowing the appellant's appeal against the refusal of the third respondent to grant planning permission for the erection of a 1.3 megawatt wind turbine generator with a hub height of up to 50 metres and a blade tip height of up to 80 metres on land at High Down, Redland, Off Charaton Road, Pensilva, Liskeard ("the site").
2. The appeal was determined by written representations. The Inspector made a site visit on 18 August 2009 and her decision letter is dated 15 September 2009. The judge quashed the decision taken on behalf of the Secretary of State by the Inspector on the single ground that the Inspector had failed to consider whether a screening direction issued by the Secretary of State on 24 July 2003 ("the screening direction") pursuant to the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 ("the Regulations") that the proposed development was not EIA development for the purpose of the Regulations should have been referred back by the Inspector to the Secretary of State for reconsideration because there had been a material change in the circumstances since the screening direction was issued, namely the inscription in 2006 of the Cornwall and West Devon Mining Landscape as a world heritage site ("WHS"). The importance of protecting such sites in their settings is emphasised in Communities and Local Government Circular 7/2009, which refers to their outstanding universal value to the whole of humanity and says that:

"'Outstanding universal value' means cultural and/or natural significance which is so exceptional as to transcend national boundaries."

3. The circular also advises that the outstanding universal value of a world heritage site "indicates its importance as a key material consideration to be taken into account by the relevant authorities in determining planning and related applications "

The facts

4. The facts are set out in same detail in paragraphs 3 to 19 of the judgment, which is reported at [2010] EWHC 2652 (Admin). A brief summary will suffice for present purposes. The proposed development falls within paragraph 3(a) of Schedule 2 to the regulations and it exceeds the applicable threshold in column 2 of Schedule 2. The third respondent's predecessor as the local planning authority, the Caradon District Council, gave a screening opinion that the proposed wind turbine would be EIA development. The appellant asked the Secretary of State for a screening direction to the contrary and in the direction dated 24 July 2003 the Secretary of State said that it was his opinion that "the proposal would not be likely to have significant effects on the environment by virtue of factors such as its nature, size and location."
5. Two areas of the WHS which was inscribed in 2006 are relevant for present purposes. They are Area 9, Caradon Hill, which lies 1.2 kilometres to the west of the site, and Area 10, Kit Hill and the Tamar Valley, which lies 3.7 kilometres to the east. The planning officer's report told members that the Environment and Heritage Unit of the County Council, who gave advice on behalf of the World Heritage Service had been consulted and had not objected to the application on the ground that it would have an adverse impact on the WHS. Although the planning officer recommended that planning permission should be granted, members disagreed and refused planning permission for the reason that:

"The proposed development would be detrimental to the appearance and character of the landscape and as such is contrary to Saved Policies 1, 2 and 7 of the Cornwall Structure Plan 2004, Saved Policies REN1, REN2, CL2 and CL9 of the Caradon Local Plan 1999 and Police ALT 2 of the Caradon Local Plan First alteration 2007 "

6. It should be noted that the quotation in paragraph 8 of the judgment which purports to set out the reason for refusal is not accurate. The refusal did not specifically refer to the WHS , although it is right to say that one of the saved policies mentioned in the reason for refusal, CL2, which had of course been adopted prior to the inscription of the WHS, refers to the need to protect world heritage sites generally.
7. As I have mentioned, the appeal was dealt with by written representations. Those representations included representations opposing the grant of planning permission from an organisation formed by the local community called Green Caradon Against Turbines or Green CATS.
8. The first respondent is a representative of Green CATS. One of Green CATS's principal objections to the proposed developments was the impact which the wind turbine would have on the WHS. On behalf of the first respondent Mr Kolinsky said that one of their "key complaints" was the impact of the proposed development on the WHS. The Inspector considered this issue in paragraph 9 of the decision letter under the sub heading "Landscape and world heritage site designations":

"The boundary of Caradon Mining World Heritage Site (WHS) is located approximately 1.2kms to the north and Tamar Valley Mining District including Kit Hill (also within a WHS) lies to the east. Whilst the WHSs are of international significance, I recognise that these are not landscape designations; the WHS areas include remains of the mining industry which reflect the evolution of human society and settlement over time. PPS22 expects assessment to be undertaken to show that the integrity of such sites would not be adversely affected. The Appellants' landscape and visual impact evidence has addressed this matter. It refers to the Management Plan for the Cornwall and West Devon Mining Landscape WHS, which reported that there is little potential for events outside the Site to have an adverse impact on its outstanding universal value in the majority of rural areas. The County Council's Environment and Heritage Unit did not object to the proposed wind turbine. I saw at my site visit that important places within the WHS including Caradon Hill, Cheesewring Quarry and Kit Hill are sufficiently distant from and elevated above the appeal site that the proposed turbine would only occupy a small portion of the long distance, panoramic views to and from them."

9. The management plan for the WHS referred to by the Inspector in paragraph 9 of the decision letter says under issue 6:

"Protecting the visual setting and historical context of the site

The setting of the Site is those sites, monuments, buildings and landscape components which provide additional historical context, and a physical space in which events could affect the visual appreciation of the Site …

The site comprises 10 discrete but inter-visible landscapes all of which encompass significant components. This is an evolving cultural landscape, with the process of change driven by mining technology and economy from 1700 and continuing to the present day and in the future, following a period of decline and now regeneration, with new sympathetic additions and changes to the landscape having a place. There is little potential for events outside the Site to have an adverse impact on its outstanding universal value in the majority of rural areas although there are some urban areas where there is a higher potential for adverse impact"

10. And then under the heading "Protecting the Visual Setting of the Site":

"The setting of the Site includes a visual space in which events could adversely affect the visual appreciation or understanding of the Site. However this space cannot be defined by the simple fact of visibility into or from the site. The extended impact on the visual setting has to be determined on a case by case basis taking into account wider considerations and applying weight and judgement. Historic landscape characterisation is a vital tool in determining the appropriateness of development or land-use change. Physical distance, scale, mass and materials may also be factors to take into account … "

11. Circular 07/09, which deals with the protection of world heritage sites, refers in paragraph 13 to management plans for world heritage sites and says that such a plan "needs to cover all the issues affecting the site".
12. The Inspector's conclusion on this issue is to be found in paragraph 20 of the decision letter as follows :

"The site is sufficiently distant from the AONB's and WHS's that there would be no detrimental impact on these nationally and internationally important designated areas."

The Inspector was not asked by Green CATS in its written representations or indeed by anybody else to consider whether she should invite the Secretary of State to reconsider the 2003 screening direction in view of the inscription of the WHS in 2006.

The Law

13. There is no criticism in the manner in which the judge summarised the effect of the regulations in paragraphs 20 to 26 of the judgment. In paragraphs 33 to 37 the judge discussed the decision of this court in Evans v First Secretary of State  [2003] EWCA Civ 1523. In paragraph 21 of his judgment in that case Simon Brown LJ as he then was, with whom Judge LJ and Jonathan Parker J agreed said that although the appellant's case failed, it was useful:

"...to consider just what if anything the Inspector should do if in the course of the appeal he finds himself seriously doubting the correctness of the Secretary of State's screening direction."

14. Simon Brown LJ answered that question as follows in paragraphs 22 to 24 of the judgment :

"22. Lightman J below was clearly right, therefore, to observe in paragraph 18 of his judgment:

"That [the cancellation or variation of an earlier direction if he has grounds for doing so] is an option open to the Secretary of State at any time before the grant of planning permission and an option which he is duty bound to have in mind and of which it is open to an Inspector to remind him."

23. In what circumstances, however, should an Inspector invite the Secretary of State to reconsider his screening direction with a view to his deciding that the application is after all one for EIA development so that all the necessary procedures with regard to environmental assessment must now be undertaken?

24. Clearly the Inspector ought not to invite such reconsideration merely because, on essentially the same facts, he finds himself in disagreement with the Secretary of State. He must recognise that there is often room for two views in making judgments of this nature and that the Regulations accord the final responsibility to the Secretary of State. If, however, the Inspector were to discover during the course of the appeal process that the Secretary of State had proceeded under some important misapprehension as to the nature of the proposed development or the assumptions underlying it, or if other material facts came to light which appeared to invalidate the basis of the Secretary of State's direction, then he might well think it appropriate to invite reconsideration of the matter. This, however, would be expected to happen only very exceptionally and only if the Inspector thought that there was at the very least a realistic prospect of the Secretary of State now coming to a different conclusion. It should be recognised, moreover, that the Inspector is under no express duty to refer the matter back to the Secretary of State and, indeed, has no express power to do so. The Regulations are silent on the point. In any given case, therefore, his decision on whether or not to refer the matter back to the Secretary of State would fall to be judged solely by the touchstone of rationality. If, as here, no one even asked him to consider referring the matter back, it is difficult to see how his omission to do so could be adjudged irrational. In any event, nothing came to light at the inquiry before the Inspector here such as to invalidate the basis of the Secretary of State's Direction."

The Judge's judgment.

15. The Judge said in paragraph 37 of the judgment :

"In my judgment, it is clear from this paragraph that, whatever the test or threshold to be met, the focus should be on the potential difference a change in circumstances may make to the Secretary of State's decision as to whether the proposal is EIA development. He or she is charged under the EIA Regulations with making the screening direction, even if, in a transferred appeal, the competent authority taking a development consent decision is an Inspector. Accordingly, only the Secretary of State can cancel or vary that screening decision. I do not accept Mr Litton's submission that, if an Inspector considers the proposal is not likely to have significant effects on the environment, without more there is no need to refer the matter back to the Secretary of State. In my judgment, that would be to usurp the function of the Secretary of State to make, vary or cancel a screening direction. Further, as Simon Brown LJ points out at the beginning of paragraph 24 of Evans, there is often room for two views on making judgments of this nature, and the fact that an Inspector or an administrative officer of an Inspectorate forms one view does not necessarily mean the Secretary of State will form the same view. That is not to say that an Inspector's view as to whether development is likely to have significant effects on the environment will not have an important bearing on whether the screening direction should be referred back to the Secretary of State."

16. The Judge dealt in paragraphs 42 to 45 of the judgment with the factors which in the first respondent's submission had :

"justified the Inspector considering whether or not to refer the screening direction back to the [Secretary of State ] for reconsideration."

17. In paragraph 43 the Judge said that there was no new consideration other than the WHS designation which could realistically have led to a different screening decision. She dealt with that new consideration in paragraph 44 of the judgment as follows:

"The lapse of time between the screening direction dated 24 July 2003 and the grant of planning permission on 15 September 2009, is certainly considerable and far greater than would normally be expected. Mr Kolinsky relied upon Mr Litton's acceptance that the longer the passage of time the more likely there has been a change in circumstances. However, absent an identifiable material change in circumstances, I do not consider that the mere passage of time can give rise to the requirement for the screening direction to be referred back to the first defendant. As Mr Litton submitted, the screening direction could become out of date almost immediately as a result of a material change in circumstances. Alternatively, absent such a change, it could remain relevant for many years. The claimant has not identified any new consideration relevant to the screening decision which could realistically lead to a different decision (other than designation of the World Heritage Site), therefore it does not provide a basis for requiring the Inspectorate to consider whether to refer back."

18. In paragraph 45 the judge said :

"Reliance was placed on the fact that no one asked the Inspectorate or first defendant to re-consider the screening direction as an indication that there was no need for such re-consideration. In the context of an appeal dealt with by written representations, and where the objectors were unrepresented, I do not consider this point to carry much weight."

The appellant's submission.

19. In a nutshell Mr Pike on behalf of the appellant and Mr Litton QC on behalf of the Secretary of State contended that the Judge misapplied the dicta in Evans by not applying the test of irrationality. The judge should have asked the question: was the Inspector's failure to refer the matter back to the Secretary of State irrational in all the circumstances, which included both the fact that she had not been asked to do so and her conclusions as to the effect of the proposed development upon the WHS?

Discussion.

20. It is common ground that an Inspector determining an appeal on behalf of the Secretary of State does have power to invite the Secretary of State to reconsider a screening direction. Although the observations of Simon Brown LJ in paragraph 24 of Evans were obiter they do in my judgment provide eminently sensible guidance as to the circumstances in which an Inspector not merely may but should invite the Secretary of State to reconsider a screening direction with a view to deciding that an application for planning permission is after all an application for EIA development. An Inspector is under an obligation to invite the Secretary of State to reconsider the matter only if the Inspector considers that, because for example of a change of circumstances, such as the inscription of the WHS in the present case, there is "at the very least a realistic prospect" of the Secretary of State coming to a different screening conclusion. Although Evans was a case where the screening direction had preceded an inquiry by only a few months, I do not accept Mr Kolinsky's submission that the observations in paragraph 24 of Evans are not applicable to the circumstances of the present case where there was a change of circumstances by reason of the inscription of the WHS after the screening direction. The court plainly had in mind cases where "other material facts [come] to light " after the screening direction. Whether those other material facts come to light because they were not appreciated at the time of the direction or because of a subsequent change of circumstances is in my judgment immaterial. The guidance is equally well applicable.
21. Although as Mr Kolinsky submits, it is for the Secretary of State to decide whether a proposed development is likely to have significant environmental effects for the purposes of issuing a screening direction, whether there is a "realistic prospect" of the Secretary of State changing his or her opinion as to the likely environmental effects on the development is pre-eminently a matter of planning judgment for the Inspector. The Inspector's judgment on that issue can be challenged on rationality grounds: see Evans. It is not for the court to decide for itself whether there was or was not a "realistic prospect" of the Secretary of State making a different screening direction.
22. Precisely because an Inspector has to use his or her own planning judgment on that issue the mere fact that he or she has not been asked by any of the parties to the appeal to exercise the power to refer the matter back to the Secretary of State will not necessarily be fatal to a legal challenge to a failure to exercise the power. However, an applicant under section 288, which is of course concerned with an error of law on the part of the Inspector determining the appeal, will face a formidable task in such a case. A section 288 challenge in those circumstances will succeed only if the court is satisfied that any reasonable Inspector would, on the facts before the Inspector in that appeal, have concluded that they should exercise the power to refer the matter back to the Secretary of State of their own motion, notwithstanding the fact that they had not been asked to do so by any party to the appeal..
23. What were the facts before the Inspector in the present case which should have led a reasonable Inspector to conclude that there was a realistic prospect that the Secretary of State might now reach a different decision on the screening direction and decide that the wind turbine was likely to have significant effects on the environment because there had been a change of circumstances by reason of the inscription of the WHS? I agree with the judge that the only factor which might have prompted a rational Inspector to invite the Secretary of State to reconsider the screening direction was the inscription of the WHS. Although there was a considerable lapse of time between the screening direction in 2003 and the Inspector's decision to grant planning permission in 2009, the mere passage of time is of no consequence unless there has been some change of circumstance during that period of time which might in an Inspector's view affect the opinion expressed by the Secretary of State in the screening direction. The only possible change of circumstance was the inscription of the WHS.
24. In his submissions before us this afternoon Mr Kolinsky made it clear that he was not submitting that the passage of time was of itself a consideration which should have led the Inspector to refer the matter back to the Secretary of State. The passage of time resulted in the change of circumstances, that is to say the inscription of the WHS.
25. Before the judge, reliance was also placed by Mr Kolinsky upon the inadequacy of the assessment that was undertaken by the Secretary of State in 2003. Although Mr Kolinsky pursued that submission before us, no-one had challenged the validity of the Secretary of State's screening direction, and indeed its alleged deficiencies were identified only in the course of the section 288 proceedings after the Inspector had issued her decision letter.
26. In his reply Mr Litton submitted that the burden of Mr Kolinsky's submissions had shifted from a criticism of the lawfulness of the Inspector's decision, the Inspector's failure to refer the matter back to the Secretary of State, to a criticism of the Secretary of State's failure to take account of a new material consideration. In my judgment there is force in that submission. It is important to bear in mind, when one is considering whether or not our domestic law does or does not implement the directive, that it was open to Green CATS or to anybody else at any time, to ask the Secretary of State to revisit the screening direction on the ground either that it had initially been made on an inadequate basis and/or that there had been a change of circumstance as a result of the inscription of the WHS. There was no such challenge to the lawfulness of the Secretary of State's conduct. The only challenge before us is a challenge to the lawfulness of the Inspector's failure to refer the matter back to the Secretary of State. A reasonable Inspector in 2009 was entitled to proceed upon the basis that the 2003 screening direction was valid in the absence of any challenge to it or any obvious flaw upon its face.
27. The inscription of the WHS in 2006 was undoubtedly a change in circumstance, but whether it was a material change in the sense that it was a change that could realistically lead to the Secretary of State deciding that the proposed wind turbine was EIA development (see paragraph 44 of the judgment) was a matter for the hypothetical "reasonable Inspector" to decide. I do not accept that one can simply bypass the Inspector's planning judgment on that matter and say, as Mr Kolinsky submitted, that if a change of circumstance is capable of being a material change as found by the court then there must be a reference back by the Inspector to the Secretary of State for reconsideration. Effectively Mr Kolinsky's submission cuts out the Inspector and makes the Inspector's view of the matter entirely redundant and leaves it to the Court to decide whether or not there is a consideration which has been identified which is capable of being a material change. I do not accept that that is the correct approach.
28. Mr Kolinsky submitted that the inscription of the WHS was obviously a material consideration because there had been a change to the sensitivity of the locality. He referred us to the lists of selection criteria in Annex 3 to Directive 85/337/EEC ("the Directive"), which has been transposed into domestic legislation by Schedule 3 to the EIA Regulations. The selection criteria are grouped under three headings: first, the characteristics of development; secondly, location of development; and third, characteristics of the potential impact. Mr Kolinsky drew our attention, under the heading "location of projects", to the criterion:

"The environmental sensitivity of geographical areas likely to be affected by projects must be considered having regard in particular to … landscapes of historical, cultural or archaeological significance"

He submitted that the WHS designation meant that here was a landscape which was undoubtedly of cultural significance.

29. It is important to bear in mind that the site of the proposed development is not within the WHS site. As the Inspector noted, the WHS inscription is not a landscape designation. It is not enough simply to say that because the Caradon Mining World Heritage site is located approximately 1.2 kilometres to the north of the site and Kit Hill a slightly greater distance, 3.7 kilometres to the east, that there must have been a material change in the sensitivity of the landscape of the application site. The process of considering the criteria in Annex 3 is not so mechanical. One has to have regard not merely to the location, but also the characteristics of the potential impact, and so one has to look at, for example, the likely extent of any impact and in that connection the management plan for the WHS is relevant. That makes it plain that the extent of impact on the visual setting of the WHS has to be determined on a case-by-case basis. This is against the background of the observation that although there is inter-visibility between the areas which comprise the WHS:

"there is little potential for events outside the site to have an adverse impact on its outstanding universal value in the majority of rural areas."

30. The application site is in a rural area. Thus it is not enough simply to say that a WHS has been inscribed some distance away from the application site. There has to be some evaluation, applying what the management plan refers to as "weight and judgment", of the possible impact of the proposed development. It was for the "reasonable Inspector" to apply that "weight and judgment" when deciding whether there was a real prospect that the Secretary of State might change the screening opinion. This Inspector had concluded (see paragraph 20 of the decision letter) that there would be "no detrimental impact" on the WHS. Her reasons for reaching that conclusion are set out in paragraph 9 of the decision letter: see above. Those reasons included reference to the fact that there had been no objection from the body responsible for protecting the WHS, the County Council's Environment and Heritage Unit.
31. While I would readily accept Mr Kolinsky's submission that the two tasks, deciding whether to grant planning permission for the proposed development and deciding for the purposes of a screening opinion whether a development is likely to have significant effects on the environment, are different (see Evans paragraph 19), the Inspector's conclusion that the proposed development would have no detrimental impact on the WHS would necessarily have informed any reasonable Inspector's view as to whether there was a realistic prospect of the Secretary of State coming to a different screening conclusion as to the likely environmental effects of the proposed development because of a change of circumstance if the only change of circumstances relied upon was the inscription of the WHS. Indeed in paragraph 37 of the judgment the judge recognised that the possibility of there being a difference of view between the Secretary of State and Inspector on that issue did not mean that an Inspector's view as to whether development was likely to have significant effect on the environment "will not have an important bearing on whether the screening direction will be referred back to the Secretary of State "
32. For my part, I do not see how it could sensibly be said that any reasonable Inspector who had concluded that the proposed development would have no detrimental impact upon the WHS and who had not been asked to invite the Secretary of State to reconsider the screening direction would nevertheless have concluded that there was " a realistic prospect" that the Secretary of State might now decide that the proposed development was likely to have significant effects on the environment because there had been a change of circumstances by reason of the inscription of the WHS and so issue a new screening direction to that effect.
33. The position might have been very different if the Inspector had concluded that the wind turbine would have a detrimental effect on the WHS but had then said that this harm was outweighed by some other planning consideration. Such a conclusion might have prompted any reasonable Inspector to ask him or herself, might the inscription of the WHS lead the Secretary of State to reach a different screening opinion?
34. Although both Mr Pike and Mr Litton would dissent from the proposition, I am content to proceed on the basis that the judge posed the correct question in paragraph 44 of the judgment, that is to say "whether the change could realistically lead to the first defendant deciding that the proposed wind turbine was EIA development, ie that it would be likely to have significant effects on the environment." For present purposes that is an adequate summary of the guidance given in Evans.
35. However, in my judgment the judge then erred because she proceeded to answer that question in the affirmative for herself:

"In my judgment, the World Heritage Site designation was potentially material in this sense, such that the Inspectorate should at least have considered whether or not to refer the screening direction back to the first defendant [ie to the Secretary of State ] for reconsideration "

36. The judge did not ask whether any reasonable Inspector who had reached the same conclusions as this Inspector had as to the impact of the wind turbine on the WHS would have answered that question in the affirmative, notwithstanding the fact that he or she had not been asked to do so. For the reasons set out above, it is not possible to say that any reasonable Inspector would in those circumstances have referred the matter back to the Secretary of State.
37. I do not question the importance of the screening process for the purpose of ensuring the United Kingdom's compliance with the Directive, nor do I question Mr Kolinsky's proposition that provision for review of screening directions is an essential part of that compliance. However, I repeat that there is here no challenge to the lawfulness of any decision or failure to make a decision by the Secretary of State in respect of the screening direction. We are here considering simply the lawfulness of the Inspector's failure to ask the Secretary of State to reconsider the direction.
38. For the reasons set out above, that failure was not irrational. Indeed in the circumstances it was not in the least surprising, and I for my part would allow this appeal.

Lord Justice Mummery :

39. I agree.

Lord Justice Rimer:

40. I agree

Order: Appeal allowed.