England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		27th June 2008

1. MR JUSTICE SULLIVAN:

Introduction

2. This is a rolled up hearing of an application for permission to apply for judicial review, with the substantive hearing to follow if permission is granted, in respect of a decision by the defendant to (1) grant consent under section 36 of the Electricity Act 1989 ("1989 Act"), and (2) direct that planning permission be deemed to be granted under subsection 90(2) of the Town and Country Planning Act 1990 ("the 1990 Act") for the construction and operation of a wind turbine generating station at Fullabrook Down in North Devon.
3. The defendant's decision is contained in a decision letter dated 9th October 2007. The interested party's proposal, which was approved by the defendant, was for the erection of 22 wind turbines, each rated at three megawatts. Each turbine would have a maximum height to blade tip of 110 metres. The turbines would be spaced about 400 metres apart over a distance of 4.8km from north to south. The proposal is a very substantial one. When constructed, it will be one of the largest onshore wind farms in England.
4. The claimant objected to the proposed development and the defendant appointed an Inspector to conduct a public inquiry into the interested party's application for consent and deemed planning permission. The inquiry sat for 16 days between 28th November 2006 and 12th January 2007. In addition to an accompanied site visit on 21st December 2006, the Inspector carried out unaccompanied site visits on a total of seven days in February 2007.
5. The Inspector's report dated 16th May 2007 is, subject to consideration of the claimant's grounds of challenge (see below), a model of its kind. To say that it is detailed and comprehensive would be an understatement. It runs to 164 pages. Having dealt with certain introductory matters, the Inspector summarised the cases of those who gave evidence at the inquiry, including the claimant and the interested party, in a manner which has not been criticised and then set out his conclusions in respect of five main topics around which the inquiry had been structured which may be summarised as follows:

(1) Energy policy;

(2) Landscape and visual impact;

(3) Noise;

(4) Tourism and local businesses; and

(5) Other matters, including nature conservation.

6. The Inspector's overall conclusion was that on balance the very substantial benefits of the proposed development outweighed the adverse impacts and that the development was acceptable with conditions (8.234). (References in parenthesis are references to the Inspector's report unless otherwise stated). He recommended that consent be granted under section 36 of the 1989 Act and that a direction be made under section 90(2) of the 1990 Act. In the decision letter the defendant accepted the Inspector's recommendation and conclusions, hence the claimant's challenge focussed, save in one respect (see paragraphs 53-56 below) on the Inspector's report.
7. The principal grounds of challenge were to the manner in which the Inspector dealt with the topics of landscape and noise. The claimant also contended that the Inspector erred in striking the overall balance, because when dealing with Topic 1, energy policy, he failed to grapple with the claimant's case that the national target for renewables to supply 10 per cent of UK energy by 2010 was likely to be met. It was submitted that had he accepted the claimant's case in this respect, he might have struck the overall balance between the benefits of the scheme and its adverse impacts differently. It is convenient to dispose of that submission at the outset, before considering the claimant's primary submissions in respect of landscape and noise.

Energy Policy

8. There is no criticism of the Inspector's summary of energy policy in paragraphs 8.6 to 8.9 of the Inspector's report. There are targets for the contribution of renewal of energy sources to electricity demand at national, regional and county level. There is also no criticism of the Inspector's conclusions that Devon's target for 2010 could not be achieved without the appeal proposal (8.20) and to achieve the minimum target for 2020 for the south-west region in the Draft RSS would require a further contribution from Devon "probably with a significant further component of onshore wind" (8.21).
9. In paragraph 8.10 of his report the Inspector summarised the claimant's case in respect of the national target:

"8.10. At the Inquiry, NDDC argued that there is no particular need for this development because targets can be met otherwise. Thus, the case was made that, based on the 2002 Oxera Report for the DTI, the 2010 national target for renewable energy could readily be met through the development of a wide range of renewables, while that report's own target for onshore wind energy would be secured if only 19.6% of the capacity in planning went ahead [4.109]. On the other hand, doubts were expressed by DWP about the readiness of technologies other than wind, implying that wind energy would have to make a greater contribution than the 50% assumed by Oxera [2.5]. I address below the likely contributions of those other sectors to Devon's needs [8.22]."

In paragraph 8.22 the Inspector said:

"However, it is abundantly clear from the DCC schedule that the 2010 target can only be achieved through the large scale exploitation of onshore wind and that other technologies can play a minor role only. Looking further ahead, tidal energy would appear to be a potential option for this area [6.70]. As with wind power, however, the locational constraints, albeit very different ones, are likely to be considerable and, unlike wind energy, those technologies are still at the proving stage. [Emphasis as original]."

10. The Campaign Against Wind Turbines at Fullabrook Down (CAWT) argued at the inquiry that the development of offshore wind power would reduce the need for onshore schemes. The Inspector's response to these arguments by the claimant and by CAWT is contained in paragraph 8.12 of the report:

"Looking to the earlier, 2010 target, it is apparent from the evidence presented by both NDDC and CAWT that there are a significant number of projects at various stages in the planning process [4.109, 6.8]. Given the many unknowns, however, it is unclear at present, as to whether this national target will be met . . . "

The Inspector continued in paragraphs 8.13 and 8.14:

"8.13. Whether or not the national target is met, however, this would not absolve the South West Region and its local authorities from seeking to meet their own targets established through the development plan process. I note that by 2005 only 3% of that Region's electricity demand was being met from renewable sources [2.13]. Also, such targets provide no 'cut off point'; as PPS22 states at paragraph 3, if they are met they are to be revised upwards, subject to the Region's energy resource potential and the capacity of the environment.

8.14. The message of PPS22 here is reinforced by that of the Consultation on the Supplement to PPS1 on Planning and Climate Change. This refers at paragraph 10 to the need to ensure that the ambition for regional targets fully reflects opportunities in the region and is consistent with the 2010 target and the 2020 aspiration. Although this is not yet an adopted document, I attach significant weight to this aim which appears to me to reflect the direction of Government policy on energy and climate change."

11. On behalf of the claimant Mr Hobson QC submitted that the Inspector should have resolved the question whether or not the national target would be met and should not have "ducked the issue" in paragraphs 8.12 and 8.13. The short answer to this submission is that the Inspector did not duck the issue. He concluded -- wholly unsurprisingly in view of the many unknowns at the national level, not the least of those unknowns being the significant numbers of projects at various stages in the planning process -- that it was "unclear" whether the national target for 2010 would be met. That was a conclusion which was rationally open to him. Indeed, it might have been surprising if the Inspector had felt sufficiently confident in May 2007 to express a firm view one way or the other as to what the position would be in 2010. He did not need to do so in any event because, as he said, whether or not the national target was met, the relevant authorities should still seek to meet the more local targets for the county and the south-west region.

12. Given the Inspector's unchallenged conclusions as to whether those targets were likely to be met, it is difficult to see what possible difference a conclusion that there was a realistic prospect of the national target for 2010 being met could have made to the overall balancing exercise, especially since Planning Policy Statement 22 "Renewable Energy" ("PPS22") makes it clear that regional targets are not to be regarded as ceilings, and the aspiration is to double the 10 per cent figure to 20 per cent nationally by 2020 (see the Government's Objectives and paragraph 3 in PPS22). The Inspector's conclusions that the proposed development would be "in line" with the aims of government energy policy at national level and that the relevant energy policies at regional county and district level (8.44(i)) would have been unaffected by a conclusion that the national target would be achieved by 2010, since the targets are not to be treated as ceilings. Moreover, reading paragraph 8.44 of the Inspector's report as a whole, it is clear that the Inspector attached far more weight to the contribution of the proposal to local targets and needs:

"8.44. My conclusions are as follows:

(i) ...

(ii) The proposed wind farm with its 66MW rated output would make a significant contribution towards meeting the 151MW target for Devon to 2010;

(iii) That Devon target is most unlikely to be met without a contribution that would be made by this project;

(iv) The application site lies within an Area of Search defined in the Devon Structure Plan, so, in principle, it is in a suitable location for a wind energy development;

(v) The development would serve local electricity demand for most of the time, thereby bringing embedded generation benefits;

(vi) It would generate enough electricity to meet the average annual needs of some 30,000 households; equating that to North Devon, that would be equivalent to over 80% of domestic demand, or some 30% of total estimated demand;

(vii) It would secure significant savings in CO² emissions, initially of the order of 64,600 tonnes per annum as well as savings in SO² and NOx emissions;

(viii) It would provide major opportunities for local contractors, especially during the construction phase, as well as benefits to parts of the local farming community."

The Inspector repeated those conclusions in paragraph 8.229 when summarising the benefits of the development, before summarising in paragraph 8.230 the potentially adverse affects of the development.

13. The submission that a conclusion that the national target of 10 per cent renewable energy by 2010 was likely to be met might have tipped the balance against the proposed development is, when those conclusions are read as a whole, no more realistic than the underlying submission that the Inspector was not entitled to conclude that it was "unclear" whether the national target for 2010 would be met. There is no substance in this subsidiary ground of challenge and I turn to the principal grounds of challenge under the headings of "Landscape" and "Noise".

Landscape

14. In his skeleton argument on behalf of the claimant, Mr Hobson identified two issues in respect of the Inspector's conclusions on the landscape topic:

"(1) Whether the Inspector and the Secretary of State correctly applied the landscape policy in the Devon Structure Plan so as to come to a lawful conclusion on the issue of landscape.

(2) Whether the Inspector and the Secretary of State properly took into account the need for consistency in relation to the findings on landscape in previous appeal decisions by the Secretary of State and an Inspector."

15. The Inspector began his consideration of the landscape topic with his conclusions as to the methodology to be adopted:

"8.46. I am satisfied that the applicants' approach to if the assessment of landscape and visual impacts has incorporated broadly the stages defined in the Guidelines for Landscape and Visual Impact Assessment (GLVIA) and Scottish National Heritage (SNH), the Countryside Agency's (CA) Landscape Character Assessment Guidance for England and Scotland. Thus, there have been baseline studies of the area to establish its character, its landscape designations and the type and extent of its 'visual receptors', there have been assessments of the landscape and visual impacts of the development, and a view has been reached on the significance of those impacts.

8.47. However, those opposing the development, NDDC in particular, assert that the assessment process has been flawed, in part because the 'receiving landscape' has been considered in compartments rather than as an 'integrated whole' and that, when seen in the latter way, it is more sensitive to change than DWP claim [4.16-4.22, 6.42]. It is also contrary to the approach taken by Natural England [4.22]. I agree that because of the proposed development's considerable scale, and its acknowledged visibility over large parts of North Devon, a holistic approach to landscape impacts must clearly be the right one. DWP claim to have done this [2.73, 2.74]. On more detailed matters, the parties also disagree on the magnitude of change in a number of instances.

8.48. The most up to date local authority analysis of the landscape is that published in 2002 by DCC in The Devon Landscape. This defines Landscape Character Zones, at County level [1.27] and these are given policy status under Policy CO1 of the Devon Structure Plan (DSP). Under this categorisation, the application site falls predominantly within Zone 20 'North Devon Downs', although its southern tip lies within Zone 19 'Taw Torridge Estuary' [1.27]. There is also the North Devon Landscape Assessment (Topic Paper 14) which was prepared for NDDC in 1994 [1.29].

8.49. For their part, DWP have defined landscape types within their study area (comprising land up to 20km, later extended to 25km from the application site). So far as the area covered by Zone 20 is concerned, DWP recognise 'Plateau Downlands' and 'Incised River Valleys', among other landscape types [1.31]. It seems to me that, in principle, this finer breakdown provides a valid starting point for DWP's baseline assessment. It is a division that is broadly consistent with the description of The Devon Landscape's Zone 20 as 'rounded downland, divided by three significant wooded river valleys' (p.131), and with the categorisation made in Topic Paper 14 which recognises, within a similar area to Zone 20, 'Inland Downs' and 'River Valleys' [2.86, 2.87].

8.50. Given the scale of this development and the presence of designated areas within the study area, it is vital that any such assessment properly covers the wider picture. Essentially, however, I believe that DWP have done this, in the context of DCC's higher order assessment, and in accordance with the SNH/CA guidelines [2.73]."

No criticisms are made of this analysis. Of particular relevance to the first of the two issues raised by the claimant, it is accepted that the Inspector identified the correct policies in paragraph 8.48 and was entitled as a matter of planning judgment to reach the conclusions in paragraph 8.49 and 8.50.

11. In paragraph 8.54 the Inspector set out the way in which he proposed to structure his analysis of the landscape impact:

"The ZVI [Zone Visual Influence] confirms that the wind farm would potentially be visible over a wide area, although the local land form, the tree cover and buildings would screen or reduce many potential views. To the extent that the development could be seen, its impact would diminish with distance. My analysis considers those impacts geographically, based on the following main areas:

(1) The application site and the immediate surrounding area, the latter being that area within Landscape Character Zone 20, and within 3km of the application site boundary;

12. (2) The remainder of Zone 20, excluding the AONB;

(3) The North Devon AONB and its various components (excluding that part that falls within Zone 19, but including Ilfracombe and the area to its south);

(4) The Taw Torridge Estuary (Zone 19);

(5) The wider landscape, principally, Exmoor National Park and Exmoor Fringe (Zones 21-23), and Codden Hill (part of Zone 12)."

The Inspector explained in paragraph 8.55 that the 3 to 3.5km distance "represents broadly the threshold distance from the site beyond which there is some consensus between the parties that impacts upon the landscape decline".

13. When dealing with Area 1, the application site and surrounding area, the Inspector said so far as relevant for present purposes:

"8.59. These particular downs have recognisably the characteristics set out in The Devon Landscape's description of Zone 20. Thus, they are an area of relatively large, rectilinear fields separated by hedgebanks and some fences. The landform has a smooth, open appearance and, given the elevation and the undulating nature of the terrain, there is a high degree of intervisibility between the upper parts of the downs. Indeed, from one vantage point along the unclassified road that crosses Metcombe Down from Hore Down Gate to Prixford, one can see virtually the entire sweep of the application site along its main axis, from its highest point at Metcombe Down, descending gradually to the southernmost down 4km away. There are a few trees aside from the wind-trimmed ones that border Burland Road and punctuate some hedgerows. Overall, I consider the application site to represent a large scale landscape.

8.60. The 'Incised River Valleys' from a recognisably distinct landscape type. The downland in the vicinity of the site is incised by the valleys of the River Caen and Knowl Water and by the tributaries that feed them. In the main, these valleys are steep sided, the tributary ones especially so, and the valley floors are narrow and winding. While, as a generality, it is often difficult to define a clear boundary between one landscape type and another, here the distinction between Downland and Incised River Valley is often quite a clear one. Generally, it is in terms of land use, the open pasture of the downland contrasting with the woodland of the valley sides and, as I saw, often coinciding with an increase in the steepness of the land.

8.61. In terms of the interplay between these two landscape types, the valley floors are, to a considerable extent, concealed from general view by the land form of the downs and by the tree cover on the valley slopes. This gives the valleys a secluded, intimate character. From a number of viewpoints, the wooded upper slopes can be seen in views across the downland landscape, sometimes in the dips between adjacent hills, this woodland signalling the presence of a valley. This can be seen, for example, in Viewpoints 1, 6, 12 and 14, and more generally as one passes through the landscape. However, there are far fewer places where it is possible readily to see a juxtaposition of downland and the entirety of an Incised River Valley including its floor. Viewpoint 18 at Muddiford provides one example, and the view northwards from Marks Hill (close to the location of Turbine 8) of one of the Knowl Water tributaries is another. [Emphasis as in original]"

14. When looking at the "wider impacts" within Area 1 the Inspector said in paragraph 8.68:

"Within the immediate surrounding area, DWP's other main landscape type is the Incised River valley. As I have established, the turbines would be seen in many views in conjunction with the valleys and their characteristic wooded slopes. That mixed woodland adds variety and interest to this otherwise open landscape, where the predominant vegetation is grassland. At the same time, there would be relatively little intervisibility between the development and the lower parts of these incised valleys. Because of the land form, most stretches of the valley floor would be unaffected in visual terms; with a few exceptions, the development would 'look across' the valleys rather than intrude into them. [Emphasis as in original]"

15. The Inspector set out his findings regarding Area 1 in paragraph 8.71. Only one of these findings is criticised in these proceedings:

"(ii) In respect of the Incised River Valleys, their intrinsic landscape quality is high, while the upper valley slopes and the woodland that cloaks them add significantly to the overall value of the landscape in this area. However, there are relatively few places where there would be intervisibility between turbines and the valley floors."

It is not suggested by the claimant that the Inspector was not, after eight days of site visits, entitled to reach the conclusion that there were relatively few places where there would be intervisibility between the turbines and the valley floors. It was submitted that he had improperly given weight to this factor, because the lack of the intervisibility between the downland and the valley floors was not a characteristic of the Landscape Character Zone that was recognised in the Devon Landscape Appraisal of 2002. On the contrary, it was submitted that that document had emphasised the inter-relationship between the downland and the valleys.

16. In an endeavour to make this point good, Mr Hobson referred me to the following passages in the 2002 Appraisal. The key characteristic features of LCZ20, the North Devon Downs, included:

"• Rounded, open downland, divided by three significant wooded river valleys ...

The Zone is crossed in a north-south direction by three fairly substantial valleys. These represent quite deep clefts through the rounded hills, contrasting with the heights not only in their topography but in the fact that they are typically well-wooded, mostly with mixed or broadleaved woodland. The valley floors are quite narrow, sinuous, pastoral with a few hedges. The woodland on the steep valley sides spills over the rims onto the edge of the downland, and the wooded pattern created by these valleys and their woodlands adds a distinctive element to the Zone's landscape. There are few locations on the downs where the shape of the valleys as reflected by their woodlands cannot be seen, this interplay between open downland and wooded valley being characteristic of the Zone . . .

The valleys have an atmosphere that is different again . . . Away from the immediate influence of the main roads, and more particularly in the tributary valleys where there are no roads or only steep, winding local roads, the complex shape of the valleys, the wooded environment and the frequent appearance of running water all give rise to a remote, almost secretive character. Occasional unexpected cottages or hamlets heighten rather than dispel this reaction. The character of the valleys and of the downlands, although quite different in detail, are remarkably similar in appeal, their proximity and inter-relationship helping to complement each other.

The complex appeal of downland and valley has been well retained throughout the Zone. The nature of the topography has meant that pressures for change have been limited . . . "

The 2002 Appraisal drew on the North Devon Landscape Assessment which had been prepared for the claimant in 1994. That said of the North Devon Downs that:

"There are few points on the rounded downland where these valleys, with their wooded flanks, beech plantations, farms and country estates and sheltered villages cannot be seen. It is this contrast, and the important historic aspect of the landscape, which gives the downs their distinctiveness as a whole."

17. In my judgment, these passages demonstrate the misapprehension which underlies this aspect of the claimant's case. The 2002 Appraisal does not suggest that there is any significant degree of intervisibility between the valley floors and the downs on which the turbines will be sited. Looking from the downs, there are few locations on the downs where the shape of the valleys as reflected by their woodlands cannot be seen. The Inspector's conclusion as to the extent of intervisibility between the valley floors and the downs is echoed by the description of the valleys in the 2002 Appraisal as having a "remote almost secretive character" because of, inter alia, their complex shape and wooded environment. While it was not necessary for the authors of the 2002 Landscape Appraisal to consider the extent to which structures placed on the downs would be visible from the valley floors, that issue was one which the Inspector had to consider as part of his assessment of the landscape impact of the proposed turbines.
18. On closer examination of the 2002 Landscape Appraisal and the Inspector's report, it is clear that, in so far as there are any discernible differences between the conclusions reached in the two documents, they are, at most, differences of emphasis only. Thus, the Inspector recognises the contrast between the downland and the incised river valleys, accepts that here the distinction between the two landscape types is quite often a clear one, considers the extent to which there is an interplay between the two landscape types, and concludes that the valleys have "a secluded intimate character", in agreement with the authors of the 2002 Appraisal who considered they had "a remote almost secretive appearance".
19. Even if it had not been based upon a misapprehension, there is further difficulty in the path of this submission. The Inspector did not, as a result of his conclusion that most stretches of the valley floor would be unaffected in visual terms, conclude that the turbines would have only a limited landscape impact. The impact of the proposed development on the floors of the incised river valleys was only one element of a massively detailed and thoroughly comprehensive assessment of the landscape impact of the proposals on the five areas identified in paragraph 8.54 of the Inspector's report. As a result of that assessment, the Inspector concluded in paragraph 8.230:

"There would be significant adverse landscape effects in respect of:

-- The AONB, confined to the effects upon certain views from within the North Devon Downs Landscape Area;

-- The North Devon and Taw Torridge Estuary Landscape Character Zones in terms of the application site, the area within 3km of its boundary and some elevated locations between 3-5km away;

-- The AGLV, in terms of the effects of Turbines 21 and 22."

He also concluded that there would be significant adverse visual amenity effects and identified those effects in the latter part of paragraph 8.230.

20. It is difficult to see how placing a different weight on the lack of intervisibility between the turbines and the valley floors (which the claimant accepts the Inspector was entitled to conclude as a matter of fact) could possibly have affected the overall balancing exercise in the light of the Inspector's conclusion that there would indeed be significant adverse landscape effects. In reaching that overall conclusion, the Inspector was in fact agreeing with the Inspectors who had conducted the previous inquiries in 1992 and 1994.
21. In a decision letter dated 10th August 1992, the Secretary of State for the Environment did not agree with his Inspector's conclusion that the turbines then proposed would have such a strong adverse impact on the landscape as to outweigh the benefits of the scheme. The appeal was dismissed and planning permission was refused because of the harm that would be caused "to the amenity of nearby residents both in terms of the visual dominance of the turbines and the noise generated by them at the nearest dwellings" (see paragraph 11 of the decision letter dated 10th August 1992).
22. In a decision letter dated 27th July 1994 the Inspector appointed to determine that appeal concluded that the development then proposed "would seriously harm the appearance of the countryside hereabouts, would unacceptably dominate the outlook from properties in Fullabrook hamlet, particularly Caen View and Fullabrook Cottages, and would cause serious noise pollution to those properties" (see paragraph 76 of the decision letter dated 27th July 1994).
23. Mr Hobson referred to the following passages in the 1994 Inspector's decision letter, which he submitted the Inspector in 2007 failed to take into consideration, or alternatively, he had failed to explain why he differed from them in accordance with the dicta of Mann LJ in North Wiltshire District Council v Secretary of State for the Environment [1993] 65 P&CR 137 at page 145. The passages were as follows:

"(21) It seems to me that although these sites are on high exposed ground they are by no means visually isolated from their surroundings. Notwithstanding the analysis of the Pearson Report which suggests that the land occupied in part by these proposals is significantly different in character to the adjoining valleys, a view also held by your landscape witness, I consider that this area of downland forms a visual continuum with those valleys to which it is close and intimately interrelated. Thus the broad sweep of Fullabrook Down descends seamlessly into the coombe and Fullabrook Barton so that it is impossible to say where one ends and the other begins. In the case of Crackaway the site occupies the flanks of a col penetrated by the side valley east of Lower Aylescott and also partly overlooking at the Colam valley north of Bittadon . . .

(23) These conclusions on the local landscape, which I consider are supported by the analysis in paragraph 2.2.3 of the District Plan Landscape Assessment, lead me to the view that this prominent rounded downland, which transmutes imperceptibly into the surrounding valleys and coombes, has a particular and most attractive character. Using the network of paths and lanes it is possible to pass from valley to upland and back in very short distances, experiencing a wealth of variety and interest as views open or one enters small unsuspected areas of enclosure. This quality and variety to my mind merits protection for its own sake as does the long ridge occupied by the ragged hedge and track between Burland Cross and Beara Down and which forms the south-easter boundary of Fullabrook and part of that boundary to the Crackaway site. I accept that this area does not enjoy any local or national landscape protection status; nevertheless from what I have seen I consider that it is of high quality."

24. The Inspector in 2007 clearly appreciated the materiality of the earlier decisions. Under the heading "Legal Matters", he said in paragraph 8.3 of his report:

"In closing, NDDC referred to the materiality of the earlier appeal decisions, those of 1992 and 1994 in respect of land broadly within the northern part of the present application site and that of 2001 concerning land at Hore Down to the north of the present site [1.32]. A number of judgments were cited, the essential message being that, while an Inspector must exercise his or her own judgment, where there is disagreement, there is a need to weigh previous decisions and give reasons for departing from them [4.1-4.10]."

In accordance with this impeccable self-direction, the Inspector considered the previous appeal decisions in paragraphs 8.105 and 8.106:

"8.105. Clearly this is a very different scheme from those considered in the 1992 and 1994 appeals [1.32]. Not only would it involve significantly taller turbines but the application site would be considerably bigger. Moreover, those turbines would be more widely visible in the landscape, for example, when seen from the Taw Torridge Estuary. By contrast, the smaller machines considered in the two appeals would have been confined to a limited part of Fullabrook Down, and with the 1994 dual appeals to an additional area to the east of Crackaway Barton. The turbines would have been more tightly spaced with very different layouts to that now proposed. I believe that another difference would have been in terms of rotational speed, that cited for the 1992 appeal being a maximum of 48 rpm, whereas the turbines currently proposed would turn at between 8-19 rpm, giving their motion a different character [1.8].

8.106. This being said, I reach some similar conclusions to those of the earlier Inspectors regarding landscape impact, even though the approach that has been taken to the assessment (GLVIA) follows guidelines that were unavailable at the time of the earlier appeals. Thus, in terms of DSP Policy CO1, I have found significant adverse impacts pertaining to the landscape of the application site and the surrounding area, and in terms of the AONB, I have highlighted the effects upon views from Saunton Down and other elevated sites to the west. I also acknowledge the high landscape quality of the Incised River Valleys [8.71(ii)]. Where I differ is that I do not conclude (as the 1994 Inspector did in his paragraph 29) that such effects would suffice in themselves to make this development unacceptable. Instead, the various impacts that I have identified need to be weighed against the case for and benefits of this scheme and this I do in the final section of these conclusions."

In paragraph 29 of the 1994 decision letter the earlier Inspector had referred to the visual impacts of the proposed control centre and access track and said:

" . . . They reinforce my conclusions that the virtual effects of the two wind farms separately and in combination would cause unacceptable harm to this most attractive local landscape."

25. The Inspector returned to the previous appeal decisions as part of his consideration of the issue of visual impact in paragraphs 8.136 to 8.139 of his report. He referred again to the differences between the schemes, and said that there were also significant differences in respect of visual impact. As part of his discussion of these differences, the Inspector said in paragraph 8.139:

"However, while I have reached some conclusions similar to those of the earlier Inspectors regarding the scale of impact, for the reasons given above, the nature of that impact would be quite different. Also, I differ from them in that I do not conclude (as the 1994 Inspector did in paragraphs 39, 43 and 44 of his decision) that the visual impact on any individual property or group of properties would be so great, in itself, as to render this development unacceptable. As I concluded in connection with the landscape impacts [8.106], those effects are, in any case, matters that need to be weighed as part of the overall balance. I carry out that exercise in the final part of these conclusions."

In paragraph 44 of the 1994 decision letter the earlier Inspector had concluded:

"From the above it is apparent that were both schemes to proceed their combined effects would be unacceptable in terms of the residential amenities currently enjoyed by 1 and 2 Fullabrook Cottages, Caen View [and other properties mentioned] . . . My conclusion is therefore that the effect on the visual amenities of occupiers of many dwellings would be so serious that it generates very great weight against the proposals in combination."

26. In his overall conclusions, the Inspector said in paragraph 8.237 of his report:

"My conclusions depart from those reached by the Inspectors who conducted the 1992, 1994 and 2001 appeals. However, the circumstances are very different. Above all, there is a radically different policy base driven by the twin priorities of cutting carbon dioxide emissions and maintaining reliable and competitive energy supplies, implemented through the cascade of targets. I have acknowledged under Topic 2 that the landscape and visual impacts of this development would be considerable, and that, in some respects, they would extend beyond those of the earlier proposed developments. For example, in visual impact terms, more dwellings would be affected. At the same time, however, the benefits would be much greater. Also, there is a much greater public awareness now of the issues surrounding climate change and a greater acceptance of the need for action."

27. Mr Hobson submitted that the Inspector had misunderstood the nature of the exercise that had been carried out by the Inspector and Secretary of State in 1992, and the Inspector in 1994. He had mistakenly thought that the earlier decision takers had simply looked at the question of landscape impact and, unlike him, had not carried out a balancing exercise, weighing the adverse landscape impacts against the benefits of the scheme. That submission is based upon the passages in parenthesis in paragraphs 8.106 and 8.139 which I have set out above. It is a paradigm example of how not to interpret an Inspector's report. It plucks two sentences out of context and then proceeds to attribute to them a wholly unreasonable meaning. I say wholly unreasonable because no Inspector in his right mind -- and the author of this most impressive Inspector's report very clearly was in his right mind -- would have laboured under the misapprehension that one of his colleagues in an earlier decision letter would have omitted to carry out a balancing exercise, weighing the advantages of the proposed development against the disadvantages. When one looks at the passages in the 1994 decision letter referred to by the Inspector in the 2007 Inspector's report, it is clear that the Inspector in 1994 did conclude that the development then proposed would cause "unacceptable" harm to the attractive local landscape and to residential amenity. In 2007 the Inspector agreed with his predecessor that there would be significant adverse landscape impacts and that there would be visual impacts on individual properties, but he concluded that those impacts were not so serious as to render the proposed development "unacceptable".
28. Any reader of paragraph 8.237 of the Inspector's report would readily understand why the Inspector's conclusions in 2007 differed from those of his predecessors in 1992 and 1994. Mr Hobson complained that the Inspector had not dealt specifically with the Inspector's conclusions in 1994 that there was a "visual continuum" between the downland and the valleys, and using the network of paths and lanes it was possible to pass from valley to upland and back in very short distances, thus experiencing "a wealth of variety and interest as views open or one enters small unsuspected areas of enclosure".
29. The reasons why the Inspector in 2007 reached his conclusions on the landscape impact of the proposed development are set out with conspicuous clarity in his report. He set out his conclusions as to the interplay between the two landscape types in paragraph 8.61 (see above). His approach to landscape impact was far more comprehensive and structured than the Inspector's assessment in 1994, and incidentally based upon eight rather than two days local site visits (see paragraph 2 of the 1994 decision letter). The Inspector was not required to comb through the 1994 Inspector's decision letter line by line to explain each and every difference between his and the 1994 Inspector's assessment of landscape impact. Reading the Inspector's report as a whole, it is clear that the difference was only one of degree in any event. In 2007 the Inspector concluded that there would be significant adverse landscape effects, but he did not consider that they were so great as to render the proposed development unacceptable when the greater benefits of the scheme were weighed against the landscape impacts in the context of a "radically different policy base" (8.237).
30. Against this background I can deal very briefly with the two remaining criticisms of the way in which the Inspector considered the landscape impact of the proposals. It was submitted that the Inspector's conclusions as to the impact of the proposed development on Codden Hill and the estuary of the Taw and Torridge rivers were irrational. Codden Hill is to the south of Barnstaple, nearly 10km from the site of the proposed wind farm. It therefore fell within Area 5; in paragraph 8.54 of the Inspector's report "the wider landscape". In paragraph 8.89 the Inspector said in respect of the wider landscape:

"There would be some distant views of the proposed wind farm possible from the elevated western slopes of the Exmoor National Park and from the Exmoor Fringe Landscape Character Zone. In certain lighting conditions, notably with the sun in the east, or behind them at sunset, the turbines would become more noticeable. Overall, however, given the distance of 10 km the magnitude of change and impact would be low. I reach the same conclusion in respect of views from Codden Hill (Viewpoint 34). [Emphasis as original]"

Far from being irrational, that conclusion would, given the distances involved, appear to be eminently reasonable. Mr Hobson nevertheless submitted that in reaching that conclusion the Inspector failed to have regard to a subsequent conclusion in paragraph 8.93 of the report where, when dealing with the aesthetics of the scheme, the Inspector had said:

"This is a development that would look very different when seen from different places in the landscape, depending, in particular, upon the distance and the direction of viewing. Thus there are places from which the full sweep of the turbines arrays would be seen . . . Massing would be more apparent in 'end on' views from the north or the south but, from the same distance away, the development would occupy much less of the horizontal view. Having examined the site from many points, I do not consider there to be a particular issue concerning this layout and its effect in landscape terms that needs to be weighed in the overall balance."

31. The Inspector's report should be read as a whole and in a common sense way. It defies common sense to approach the Inspector's report on the basis that, in reaching his conclusion as to the impact as to the proposed development on the views from Codden Hill in paragraph 8.89, the Inspector failed to realise that, in terms of the aesthetics of the scheme, its massing would be more apparent in "end on" views from the south, a conclusion that he was to reach just three paragraphs later. Moreover, in the unlikely event that his attention had momentarily flagged, it is difficult to see the relevance of the point because the Inspector, having examined the site from many view points, did not consider that this particular issue concerning massing and its effect in landscape terms needed to be weighed in the overall balance.
32. Mr Hobson referred to the Inspector's conclusions in paragraphs 8.71(iv) and 8.72 that the turbines would "amount to a new defining feature in the landscape" and "would be clearly visible as prominent skyline features". However, those conclusions were reached in the context of the impact of the turbines on the Inspector's Areas 1 and 2. The Inspector dealt with the impact of the proposed development on Area 4, the Taw Torridge Estuary Landscape Character Zone in paragraphs 8.98 to 8.104 of the report. In paragraphs 8.99 and 8.100 he said:

"8.99. The other effects would be upon the estuary's setting, in terms of views from the southern side of the Taw estuary, in particular from parts of Barnstaple (as well as from Fremington and Yelland), from the Tarka Trail and from the new Barnstaple bridge. From those places (from wherever there is a view), the turbines would appear as a prominent skyline development that would rise above the northern rim. However, they would be a considerable distance behind the rim and in the closest views (from the Tarka Trail) they would be see 'end on' thereby occupying a relatively short section of the horizontal view.

8.100. Overall, given the distances, I do not consider that the effect upon the estuary setting would be adverse. As essentially 'open' structures, I believe that they are objects that this setting would absorb. While they would rise above the downland backdrop, because of that 'openness' I do not consider that these relatively distant structures would be incompatible with the downland slopes that they would rise up behind. Also, from the point of view of many visitors, at least, those using the Tarka Trail as well as the new road bridge, they would be likely to be seen as new interest features in the landscape."

Under the sub-heading "Integrity" the 2002 Landscape Appraisal said:

"The discussions above clearly indicate that the landscape integrity of this Zone is highly vulnerable and is probably approaching a position where it could be irrevocably changed. The major towns continue to expand -- Barnstaple away from the estuary up to the slopes fringing the Zone, Bideford beginning to climb the slopes at East the Water; ribbon development is in danger of joining up further; industrial development continues lower down the estuary; suburbanisation of the approaches to town continues; development climbs hills behind the smaller settlements, including examples of skyline development.

Despite this, the essence of the Zone's landscape remains. The estuary system continues to provide its heartbeat; the dunes, marshes and sands continue to reflect the sky and give a sense of space; most of the downland rim continues free of development. If these features can be retained, together with a softening of the urban developments perhaps through appropriate tree planting then perhaps the Zone's integrity will not be lost."

33. Mr Hobson submitted that the Inspector failed to have regard to the need to keep the downland rim free of development. It is clear that the Inspector was well aware of the importance of the downland rim. In paragraph 8.80 of the report he said that two aspects of the Zone (Landscape Character Zone 19) were of particular importance. The first was the massive duneland system of Braunton Burrows. The second:

" . . . which concerns the setting of the estuary is the ring of higher land that surrounds it. So far as its northern side is concerned, this includes the prominent east-west ridge upon which Heanton Punchardon and Ashford are sited. This 'northern rim' forms a backdrop to views across the estuary from its southern side [4.40]."

34. The Inspector then considered the various views of the turbines in turn from both sides of the estuary. The conclusions in paragraph 8.99 and 8.100 (see above) were reached following that analysis. If one asks the question: "Why did the Inspector carry out the analysis?" the answer is obvious. He recognised the importance of assessing the impact of the proposed development on the largely undeveloped downland rim. Whether, given the distances, the effect on the estuary setting would be adverse was pre-eminently a matter of planning judgment for the Inspector. His conclusion cannot be said to be perverse. For these reasons, there is no substance in the claimant's landscape challenge.

Noise

35. The claimant's criticisms of the manner in which the defendant dealt with the issue of noise can be grouped under two broad heads:

(1) Whether the Inspector (and hence the defendant in agreeing with the Inspector's conclusions) regarded himself as being under a legal obligation to follow the advice in paragraph 22 of PPS22 that: "The 1997 report by ETSU [the Energy Technology Support Unit] for the Department of Trade and Industry should be used to assess and rate noise from wind energy development", thereby fettering his discretion, and if he did not, whether he gave adequate reasons for rejecting the claimant's criticisms of the methodology in the ETSU report.

(2) Whether the defendant should have reopened the inquiry, or alternatively given the claimant the opportunity to make written representations in response to a report by the University of Salford "Research into Aerodynamic Modulation of Wind Turbine Noise", final report July 2007 ("the Salford report") which was published after the Inspector reported on 16th May 2007 but before the decision letter on 9th October 2007. I will deal with these two submissions in turn.

36. When PPS22 was published in October 2004, it was accompanied by a much more detailed "Companion Guide". That guide dealt with the issue of noise from wind farms and said in paragraph 44:

"The report, 'The Assessment and Rating of Noise from Wind Farms' (ETSU-R-97), describes a framework for the measurement of wind farm noise and gives indicative noise levels calculated to offer a reasonable degree of protection to wind farm neighbours, without placing unreasonable restrictions on wind farm development or adding unduly to the costs and administrative burdens on wind farm developers or planning authorities. The report presents the findings of a cross-interest Noise Working Group and makes a series of recommendations that can be regarded as relevant guidance on good practice. This methodology overcomes some of the disadvantages of BS 4142 when assessing the noise effects of wind farms, and should be used by planning authorities when assessing and rating noise from wind energy developments (PPS22, paragraph 22)."

37. At the inquiry, the claimant submitted that adopting the ETSU methodology did not fully reflect the extent of harm to amenity and that other standards should be used as a check. Mr Hobson accepted that the Inspector's summary in paragraphs 4.57 to 4.60 of the report of this aspect of the claimant's case was accurate:

"4.57. The proper approach for considering noise policies is to look not just at the wording of those policies but also at what underlies them. What is their purpose? The principal parties accept that as well as PPS22, it is appropriate to apply PPG24 on noise and NDLP Policy DVS3 which provides a test of harm to amenities. Policies CO12 and ECN15 are also relevant.

4.58. PPS22 indicates that renewable energy development should be 'located and designed in such a way as to minimise increases in ambient noise levels' and that the ETSU report 'should be used to assess and rate noise from wind energy development'. However, the PPS is not prescriptive, in the sense that it regards ETSU as the only assessment document to be used, and nor could it properly do so given that policy is not to be regarded or applied as a statute, that is prescriptively, but having regard to its underlying purpose.

4.59. It is submitted that that purpose is to avoid harm to amenity. On that basis there can be no proper objection to using other standards, such as BS 4142 or the WHO sleep disturbance criteria, as a check on ETSU to ensure that the policy test is fulfilled. That is particularly the case where there are either problems with ETSU, or noise levels are close to or over the ETSU limits. Moreover, the starting point must be the application of development plan policy which, in this instance, seeks to avoid that very harm and against which the language of PPS22 has to be read. It is the Council's case here there is an impact on amenity."

In paragraph 4.60 the Inspector listed the seven respects in which the ETSU methodology was criticised by the claimant.

38. The Inspector summarised the interested party's case on noise in paragraphs 2.185 to 2.208 of the report. The interested party's responses to the claimant's criticisms of the use of ETSU are set out in paragraphs 2.193 to 2.206. I set out paragraph 2.206 because Mr Hobson relied upon it in support of his submission that the Inspector, in his conclusions, had regarded himself as being legally bound to follow the guidance in PPS22 as though it was an enactment. Paragraph 2.206 is in these terms:

"A fatal blow to NDDC's noise case comes from the decisions at Little Cheney Court and Darracott which confirm, among other things, that Government policy is to use ETSU and that there is no choice of method."

39. The Inspector's conclusions on noise are contained in paragraphs 8.158 to 8.184 of the report. He set out the approach that he proposed to adopt at the outset in paragraphs 8.158 and 8.159:

"8.158. PPS22 states at paragraph 22 that 'the 1997 report by ETSU for the Department of Trade and Industry should be used to assess and rate noise from wind energy development'. That report is ETSU-R-97 The Assessment and Rating of Noise from Wind Farms. At the Inquiry, NDDC asserted that that does not preclude the use of other standards, such as BS 4142 or the World Health Organisation (WHO) sleep disturbance criteria to ensure that the policy test -- that of avoiding harm to amenity -- is fulfilled. In my view, however, that test is inherent in the ETSU guidance and I find nothing in PPS22 or in its Companion Guide to indicate that other mechanisms should also be used.

8.159. The Companion Guide to PPS22 includes a section on Recommended Good Practice on Controlling Noise from Wind Turbines which is derived from ETSU-R-97. The preamble to this states that the indicative noise levels given have been calculated 'to offer a reasonable degree of protection to wind farm neighbours, without placing unreasonable restrictions on wind farm development or adding unduly to the costs and administrative burdens on wind farm developers or planning authorities'. My approach will be to test the compliance of this development against the Recommended Good Practice."

Mr Hobson submitted that these paragraphs demonstrated that the Inspector regarded himself as being bound to adopt the ETSU methodology and that he therefore fettered his discretion. He relied on the decision of the Court of Appeal in S and Others v London Borough Brent and Others [2002] EWCA Civ 653 per Schiemann LJ giving the judgment of the court at paragraph 15:

"The first consequence of this is that Appeal Panels, and schools too, must keep in mind that guidance is no more than that: it is not direction, and certainly not rules. Any Appeal Panel which, albeit on legal advice, treats the Secretary of State's Guidance as something to be strictly adhered to or simply follows it because it is there will be breaking its statutory remit in at least three ways: it will be failing to exercise its own independent judgment; it will be treating guidance as if it were rules; and it will, in lawyers' terms, be fettering its own discretion. Equally, however, it will be breaking its remit if it neglects the guidance. The task is not an easy one."

40. Those observations were entirely appropriate in the context of Appeal Panels and schools considering exclusions of pupils from school. A degree of caution should, however, be employed when transposing them to the very different context of town and country planning where policies, whether they are set out in the development plan or those contained in other policy documents such as PPSs, are often of much greater significance in the decision-making process. Indeed, some policies may, in practice, be treated as having no less force than many an enactment; for example, green belt policy.
41. However, the general point that policy advice in a PPS is just that, policy advice, and is not to be equated with an enactment is well established. That presents an initial hurdle for the claimant. Unlike Appeal Panels and schools considering the exclusion of pupils, where the decision takers are usually lay people, planning inquiries are conducted by experienced professionals. It would be very surprising indeed if this experienced Inspector, who among his other qualifications is a charted town planner, had so far forgotten his years of professional practice and training as to believe that the advice in PPS22 as to the use of the ETSU methodology was to be treated as though it was in effect a legal requirement. If he had been under that misapprehension, it is difficult to see why he would have permitted the claimant to deploy all of its arguments to the effect that the ETSU methodology should not be used, and why he should have recorded the interested party's responses to all of those arguments. The language used by the Inspector -- "My approach will be to test the compliance of this development against the recommended good practice" -- is the language of a professional town planner who considers, as a matter of planning judgment, that it is appropriate to apply those recommendations. It is not the language of someone who believed himself bound to follow a legal requirement.
42. Mr Hobson asked rhetorically: why did the Inspector reject the claimant's arguments if he did not regard the advice in PPS22 as binding him to apply ETSU? In my judgment, the answer could not be more plain. The Inspector went straight to the heart of the matter. He considered the underlying reason why the claimant was arguing that it was appropriate to use other standards such as BS 4142 or the WHO sleep disturbance criteria as a check on ETSU: because one had to have regard to the purpose underlying the policy advice in the PPS and that purpose was to avoid harm to amenity. However, the Inspector concluded that the test of avoiding harm to amenity "was inherent in the ETSU guidance". He also concluded that there was nothing in PPS22 to indicate that other mechanisms should be used. Both of those conclusions were clearly correct (see the passage from paragraph 44 of the Companion Guide to PPS22 and paragraph 22 of PPS22 above). The relevant extract from the Companion Guide was cited by the Inspector in paragraph 8.159 of the report. That provides an intelligent and adequate reason for following, rather than departing from, recent national policy advice.
43. On a fair reading of the Inspector's report the Inspector followed the advice in PPS22 as to the use of ETSU because, in his planning judgment, it was the appropriate course bearing in mind the underlying policy test -- that of avoiding harm to amenity -- not because he mistakenly believed he was legally obliged to do so. Although Mr Hobson referred to paragraph 2.106 of the Inspector's report where the Inspector summarised one of the interested party's submissions which, as a summary, perhaps pitches the argument for using ETSU rather too high, it must be remembered that this is one sentence in a summary and that the Inspector accurately summarised the claimant's position that PPS22 was not prescriptive in paragraph 4.58 of the report (see above). What matters is not how the interested party put its case, but how the Inspector responded to the parties' submissions. For the reasons set out above, there is no reason to believe that the Inspector considered that, as a matter of law, he had no alternative but to adopt the ETSU methodology.
44. Indeed, it is clear from subsequent paragraphs in his report that the Inspector was well aware of the fact that the advice in PPS22 could be departed from if there was a sufficiently good reason to do so. Thus, when dealing with night time noise, the Inspector said in paragraph 8.170:

"On the question of night time noise, the 43dBLA90 ETSU standard is predicated on the need to avoid sleep disturbance. While NDDC assert that it does not follow the latest World Health Organisation (WHO) guidance regarding noise levels within bedrooms, the ETSU standard meets the 35dB(A) sleep disturbance criterion set out in PPG24 Noise and it is the current Government advice. The night time graphs indicate that the noise sensitive properties would be able to meet a condition based on the ETSU standard, with some limited use of SRS (or SCADA) in a few instances."

When dealing with conditions, the Inspector said of "Option 2", which would have been a scheme to meet the latest WHO guidelines as to night time noise:

"8.181. That leaves Option 2 as a viable possibility in power generation terms, one that the applicants state they 'could live with'. However, while it is an option that the Secretary of State might wish to consider, its use would still be a departure from PPS22 and ETSU-R-97. My belief is that the possible basis for such a departure, a significant likelihood of AM [Aerodynamic Modulation] being encountered, is not there and to impose Option 2 would be to unnecessarily curtail power output from this development [Emphasis added]."

45. It is clear from these passages that the Inspector recognised that there could be a departure from the advice in PPS22 if there was a sufficient justification. Mr Hobson submits, correctly, that the Inspector did not resolve the disputes between the interested party and the claimant as to the seven respects in which the claimant criticised the approach adopted by ETSU (which were summarised in paragraph 6.40 of the report). He did not need to do so, having been satisfied that the justification advanced for not applying ETSU, the policy objective of avoiding harm to amenity was, contrary to the claimant's submissions, inherent in the ETSU methodology. A decision to depart from recent national policy advice might well have required more detailed justification, but since the Inspector was following national policy advice, his reasoning was perfectly adequate.
46. A further and separate ground of challenge was made to the manner in which the Inspector dealt with the issue of aerodynamic modulation ("AM"), otherwise known as "blade swish". The Inspector dealt with this issue in paragraphs 8.173 to 8.176 of the report as follows:

"8.173. The second phenomenon was that of aerodynamic modulation (AM). That this can be an issue emerged from a study by the Hayes McKenzie Partnership Ltd for the DTI which was into the measurement of low frequency noise. Following an examination of complaints in respect of three wind farms, the study concluded that the causes derived not from low frequency noise, but from the audible modulation of aerodynamic noise, especially at night.

8.174. The Hayes McKenzie report noted at pages 64 and 65 that AM was, in some isolated circumstances, occurring in ways not anticipated by ETSU-R-97. It went on to express the belief that the risk of high levels of aerodynamic modulation was greatest for sites where stable atmospheric conditions occur and tall wind turbines were proposed/operating, or where high levels of wind shear existed at a site. Such conditions were most likely to occur at level sites within the UK, on the eastern side of England for example. At the Inquiry, NDDC's noise witness expressed his belief that a complaint concerning a recently commissioned scheme in Lincolnshire was in part AM related [4.60(i)]. Regarding AM generally, DWP suggested that the cause may be high wind shear factors, which are not anticipated at Fullabrook Down [2.201].

8.175. The report went on to say (although it did not elaborate upon this) that in hillier terrain, site specific topographical effects might also result in such modulation (page 65). No specific evidence was presented to the Inquiry to suggest that AM might be experienced at Fullabrook Down wind farm. However, given that the causes are not fully understood, the possibility that it might occur cannot be absolutely excluded.

8.176. The Government's response to the findings has been twofold. First, it has asserted that the advice in PPS22 and its Companion Guide that ETSU-R-97 should be used for the assessment and rating of noise from wind farms should continue to be followed. Secondly, it has set up an advisory group to provide a peer review and guidance on the matter of AM. Were it to be decided to reflect AM in the ETSU rating advice, further information would be issued. Thus, while it is possible that ETSU-R-97 might be modified in the future, for the present the Government's firm advice is that it should be followed as it stands."

That summary was, as at the date of the Inspector's report, entirely accurate.

47. As mentioned above, after the report was sent by the Inspector to the defendant, the Salford report was published. On the basis of the evidence before him, the Inspector was entitled to conclude that, given the causes of AM were not fully understood, the possibility that it could occur at Fullabrook Down could not be absolutely excluded. In the light of that finding, his further conclusion in paragraph 8.181 (see above) that Option 2 would "unnecessarily" curtail power at the development cannot be said to be unreasonable.
48. That leaves the complaint that the defendant should have reopened the inquiry or invited the claimant to make representations in the light of the Salford report. Shortly after the report was published, the Department for Business Enterprise and Regulatory Reform issued a statement on 1st August 2007. Having set out some of the history in an introductory paragraph, that statement said:

"Having taken the view that more work was required to determine whether or not AM is an issue which may require attention in the context of the assessment and rating advice in ETSU, the Government commissioned Salford University to conduct further work.

The objectives of the study were:

• To establish the levels and nature of the reported noise complaints received across the UK relating to noise issues from wind farms, both historic and current, and determine whether AM is a significant effect;

• To review and understand the level of knowledge/understanding that exists throughout the world on AM, and whether AM can be predicted.

The Salford University study has now been published. The study concluded that although AM cannot be fully predicted, the incidence of AM resulting from wind farms in the UK is low. Out of the 133 wind farms in operation at the time of the study, there were four cases where AM appeared to be a factor. Complaints have subsided for three out of these four sites, in one case as a result of remedial treatment in the form of a wind turbine control system. In the remaining case, which is a recent installation, investigations are ongoing.

Based on these findings, Government does not consider there to be a compelling case for further work into AM and will not carry out any further research at this time; however it will continue to keep the issue under review.

Government continues to support the approach set out in Planning Policy Statement (PPS) 22 -- Renewable Energy. This approach is for local planning authorities to 'ensure that renewable energy developments have been located and designed in such a way to minimise increases in ambient noise levels', through the use of the 1997 report by ETSU to assess and rate noise from wind energy developments."

49. Although the claimant made representations that the inquiry should be reopened for other reasons not relevant for the purpose of these proceedings, it did not suggest that the inquiry should be reopened to enable it to make further representations in the light of the Department's announcement and the publication of the Salford report. In the decision letter the defendant gave very detailed consideration as to whether the inquiry should be reopened on the basis of three matters, one of which was AM. In paragraph 4.12 of the decision letter the defendant said, under the heading "Aerodynamic Modulation":

"On 1st August 2007 the Department announced the outcome of the study by Salford University into a phenomenon known as Aerodynamic Modulation ('AM'). AM is the audible modulation of aerodynamic noise, ie, aerodynamic noise which displays a greater degree of fluctuation than usual. In some isolated circumstances AM was occurring in ways not anticipated by the 1997 report by ETSU to assess and rate noise from wind energy developments ('ETSU-R-97'). The Salford study concluded that although AM cannot be fully predicted, the incidence of AM resulting from wind farms in the UK is low. Out of the 133 wind farms in operation at the time of the study, there were four cases where AM appeared to be a factor. Complaints have subsided for three out of these four sites, in one case as a result of remedial treatment in the form of a wind turbine control system. In the remaining case, which is a recent installation, investigations are ongoing. Based on these findings the Government does not consider there to be a compelling case for further work into AM and will not carry out any further research at this time: however it will continue to keep the issue under review. The Government therefore continues to support the use of ETSU-R-97 as the means to assess and rate noise from wind energy developments. On that basis the Secretary of State does not consider that a re-opened Public Inquiry should be asked to consider this issue."

It will be noted that in substance paragraph 4.12 of the decision letter simply rehearses the material that was contained in the department's announcement on 1st August 2007.

50. Mr Hobson accepted that the defendant was not required to reopen the inquiry under the relevant inquiry procedure rules, but submitted correctly that the defendant had a discretion to do so, or at least to invite further representations on the topic of AM. Given the contents of the Salford report and the terms of the Department's statement on 1st August 2007 that there was no compelling case for further research, the defendant's decision not to invite further representations and not to reopen the inquiry on this ground was eminently reasonable. The inquiry was conducted against the background that central Government policy advice was that the ETSU methodology should be used. There were criticisms of the way in which the ETSU methodology reflected, or did not reflect, the AM phenomenon. Research was carried out to ascertain whether this was an issue that might require some alteration to the ETSU methodology. In the light of the somewhat inconclusive results of that research, the Department decided that there was no need for further research and the status quo -- the advice that the ETSU methodology would continue to be used -- would be maintained.
51. Thus, there was no change in policy which might have made it only fair to invite further representations. The department did not, as the claimant submits, rely on the Salford report as a justification for the use of the ETSU methodology. The department's position was consistently that noise assessments of wind farms should be carried out in accordance with the ETSU report, and the Salford report did not cause the department to alter that position. In any event, the department's approach to this issue in paragraph 4.12 of the decision letter merely echoed the statement that had been issued on 1st August 2007. It had been open to the claimant to make further submissions, or to ask for an opportunity to make further submissions, to the defendant after the announcement on 1st August 2007. But for whatever reason it did not do so, perhaps because it recognised that the position as it had existed at the inquiry had not been altered in any way. For these reasons, I reject the claimant's noise challenge.

Conclusions

52. It follows that the rolled up application must be dismissed. I realise that the claimant and many local residents feel very strongly that the wrong decision has been made, but it cannot be said that the defendant's decision was unlawful. If I had not heard Mr Hobson putting the claimant's arguments for the best part of a day with his customary skill, I would have said that none of the grounds was arguable. In the circumstances, I will grant permission to apply for judicial review but I do so only in order to dismiss the substantive application, having heard full argument. In those circumstances, I do not need to consider the interested party's arguments on the issue of delay.
53. MR HOBSON: My Lord, I wonder if your Lordship would allow me a few minutes to obtain instructions. Unfortunately, I was not able to do so first thing this morning because there was a delay in the Council's representative coming up from Devon. If your Lordship would allow me that opportunity it will save some time.
54. MR JUSTICE SULLIVAN: Yes. Thank you very much indeed. I shall go off and have a cup of coffee, you can take instructions and we will come back at 11.45.
(A short break)
55. MR HOBSON: We are grateful to your Lordship for that opportunity. My Lord, can I tell your Lordship that it has been agreed in relation to costs that the Council will pay the defendant Secretary of State's costs assessed at £15,000.
56. MR JUSTICE SULLIVAN: Yes.
57. MR HOBSON: It has also been agreed that the Council will pay the interested party's costs assessed at £3,000. I should tell your Lordship also that the Council will not be making an application for permission to appeal. That, I think, disposes of all matters.
58. MR JUSTICE SULLIVAN: Brilliant. Well done. Well done all of you. Thank you all very much indeed.