ON APPEAL FROM QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE ROBINSON QC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE SULLIVAN
| GWENDOLYN RENFREE
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Mr John Litton QC (instructed by the Treasury Solicitor ) appeared on behalf of the Second Respondent.
Mr Dan Kolinsky (instructed by Richard Buxton Environmental and Public Law Solicitors ) appeared on behalf of the Second Respondent.
Crown Copyright ©
Lord Justice Sullivan:
"'Outstanding universal value' means cultural and/or natural significance which is so exceptional as to transcend national boundaries."
"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 "
"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."
"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"
"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 … "
"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.
"...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."
"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.
"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."
"justified the Inspector considering whether or not to refer the screening direction back to the [Secretary of State ] for reconsideration."
"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."
"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.
"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.
"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."
"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 "
Lord Justice Mummery :
Lord Justice Rimer:
Order: Appeal allowed.