QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(SITTING AS A DEPUTY HIGH COURT JUDGE)
|THE QUEEN ON THE APPLICATION OF HULME||Claimant|
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT||Defendant|
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Miss L Busch (Instructed By The Treasury Solicitor) Appeared On Behalf Of The First Defendant
Mr G Nardell Qc (Instructed By Eversheds) Appeared On Behalf Of The Third Defendant With Miss J Thornton For Judgment
HTML VERSION OF JUDGMENT
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The decision letter
"i) the effect of the proposed development on:
• the character and appearance of the surrounding area including the historic environment;
• local ecology, especially bats;
• the living conditions of local residents, especially in relation to possible noise disturbance; and
(ii) whether any harm resulting from the first main issue could be sufficiently regulated by conditions, or would be outweighed by the benefits of renewable energy generation, to justify the development".
He then proceeded to set out his reasons. I deal only with those parts of the decision letter which are relevant to the matters argued before me but, given the number of grounds of challenge, this section of the judgment is of some length.
"Policy CO1 (landscape, character, local distinctiveness) requires that the distinctive qualities and features of Devon's landscape character zones should be sustained and enhanced".
"Policy NE10 (protection of countryside and open spaces) and the West Devon Borough Local Plan 2005 records that development within the countryside outside settlement limits, or not otherwise in accordance with the policies of the plan, will not be permitted unless it provides an overriding economic or community benefit which avoids unacceptable harm to the distinctive landscape character of the area. Natural features which contribute to the character are protected including views. However, in relation to wind energy proposals, this policy is essentially subject to Policy PS10 (energy production in West Devon)".
"I visited the four closest settlements - North Tawton, Bow, Spreyton and Zeal Monachorum - together with most of the viewpoints discussed, including those on Dartmoor. I have considered the impact of the scheme in terms of its effect on both landscape, character and visual amenity."
"31. A gateway at Itton Cross (ES Viewpoint 3) is a good vantage point for the assessment of the visual effect of the proposed turbines from the west. At this location the viewer would be above the level of the turbine bases, and the topographical context – the shallow basin – of the development would be evident. The fields in the foreground are quite large, and the ridge to the east of North Tawton provides a degree of enclosure. In contrast to the prospects from the north however, there is no complementary upland area and the turbine blades would be seen against the background of the sky. Although in clear weather Exmoor is visible to the north-east, in my view it is too distant to make the same contribution as Dartmoor does in views from the north".
"Bow would be a little closer to the nearest turbine than Spreyton but, more significantly, the valley of the River Yeo effectively connects the village with the appeal site. The village is sited on rising land on the East side of the valley and the turbines will therefore be clearly visible, especially from the houses with South West facing windows in, for example, Hobbs Way, Nymet Avenue, Collatons Walk and Gregory Close ... In my view, a wind turbine has a readily comprehensible design simplicity and, although the proposed turbines would undoubtedly be large, I do not consider the number and distribution of the turbines would be inconsistent with its landscape setting as seen from the village".
"57. Except perhaps in a limited number of industrialised or urbanised locations, it will invariably be the case that modern commercial wind turbines will be out of scale with both the natural vegetation and other man-made structures in the vicinity. Similarly, it might have been expected within the context of the Devon landscape that the proposed wind farm would be too large for its landscape setting. The wind farm would be most closely observed from the minor road which passes through Itton, but this is only a lightly trafficked route. In contrast, the next closest route is the A3072, and this is relatively heavily trafficked. In my view the greatest visual harm resulting from the scheme would be experienced both on this route, and, to a lesser extent, from the bridleway to the north-east of Burrow. In this sense the scheme would therefore conflict with the landscape protection policies, or parts of policies, of the development plan to which I have referred – principally structure plan policy CO1, local plan Policy NE10, Policy EN 1 of RPG 10, and Policy ENV1 of the emerging RSS".
"59. An ecological assessment of the site taking particular account of protected species was carried out on behalf of the developer at the ES stage of the project in 2004. Amongst other matters the assessment noted a moderate to locally high level of bat activity, mainly associated with the hedgerows woodland edges and wetlands. A total of seven species of bat was identified the distribution suggesting that individuals were entering the site from roosts around the periphery. However, most of the bats were observed flying at between 2 and 10m above ground level and in this case the blades would not be closer than 30m above ground level. It was recognised that the noctule bat would be more vulnerable as it often flies between 10 and 20m above ground level".
"66. I recognise that understanding the relationship between bats and wind turbines is a developing area, and the potential for surveys to become out-of-date exists. An additional survey using the latest equipment would doubtless have improved the extent and detail of our knowledge of the site. However, in my view the work carried out in 2004 constituted a thorough survey of the land and I agree with the appellant that new surveys would be unlikely to reveal significantly changed circumstances. I do not dispute the danger that turbines present to bats, including the noctule bat. The scheme thus entails the threat of some harm to individuals, but not to roosts, and there is no suggestion that the turbines would constitute a threat to local bat populations".
"68. I therefore conclude in relation to this matter that the potential effect of the proposed development on local ecology has been the subject of detailed investigation and assessment, including special consideration for protected species. In my view the project is in conformity with the relevant parts of policy EN 1 (Landscape and Biodiversity) of RPG 10; with structure plan Policy CO10 (Protection of Nature Conservation Sites and Species); and with local Plan Policy NE6 (Protected Species)".
"The guidance constitutes an exhaustive - even elaborate - examination of the issues relating to the assessment of wind turbine noise and its regulation, but it was recognised by the authors that it and its recommendations should be reviewed 2 years after publication. However, there has been no review and evidence submitted by the appellant indicates that there are no current plans to revise ETSU-R-97".
"Amongst many other matters, the report promotes a correlation between background noise levels at receptor locations with simultaneous measurements of the mean wind speed at 10m above ground level measured at the proposed site. Some of the acousticians who practice in this field fear that the failure to pay sufficient regard to variations in wind shear could result in significant errors when comparisons are made between background noise levels and wind turbine noise emission levels. A methodology has been identified which seeks to overcome this problem".
"98. Although I agree with DBJRG that 10m above ground level is the height frequently cited in ETSU-R-97, I see no overriding reason why the necessary correlation should not be made with the wind speed at the actual proposed hub height of the turbines. I recognise that omitting the correlation with the 10m reference height amounts to a departure from the methodology adopted by ETSU-R-97, but in many other respects DBJRG is critical of the document. In any event, although ETSU-R-97 enjoys the status afforded it by PPS22 and subsequent Government endorsements, I see no reason why alternative improved or otherwise adequate methodologies should not be utilised. There is no useful purpose to be served by slavishly following guidance if more robust processes are available and reliable. In my view the 10m reference height is simply a means to an end – the end in this case being to relate the background noise measurements to the wind speed and hence the noise generated by the turbines. I cannot see that the method adopted by the appellant undermines this principle".
"On the basis of the evidence I have received, I conclude that the possibility of a greater than expected impact from AM would be possible. In circumstances where the result of unforeseen consequences is sleep disturbance, I am in no doubt that, in the event of the appeal succeeding, a condition to regulate the phenomenon is both necessary and reasonable. I discuss this matter later in the decision".
The inspector then set out his conclusions on noise.
"121. It is in the light of these inherent uncertainties that I conclude the living conditions of local residents would not be unreasonably affected provided the necessary and appropriately worded conditions were imposed. If the appellant's predictions are correct there would be no need for the conditions to be enforced, but it is important that the council is able to take the necessary action if it became expedient to do so. In my view the uncertainties which have been identified serve to accentuate the necessity for the imposition of conditions on any permission granted. I conclude on this basis the proposed development would not conflict with the provisos included in both structure plan Policies CO12 and CO16 and local plan Policies PS10 and BE18".
"137. I therefore conclude in relation to the first main issue that the project would be a cause of some harm in terms of its visual effect on the landscape – especially from some vantage points to the north and north-east of the site. The scheme would also result in a significant change to the landscape character of the surrounding area. I found there would be no harm however in relation to the historic environment or with respect to local ecology. In relation to possible noise interference, I am concerned that this is a matter where there are significant uncertainties surrounding the generation and propagation of wind turbine noise. In contrast, I am reasonably confident about the background noise surveys. In my view these conclusions can only accentuate the importance and necessity of appropriately worded conditions to any permission granted in order to secure compliance with the limits included in ETSU-R-97. I have found no harm resulting from the other matters raised".
"181. However, as is evident from my consideration of the possible noise impact of the proposed wind farm, I am concerned about the effect of greater than anticipated AM41 arising at the site. At my instigation DBJRG has drafted a condition designed to regulate this possibility and prepared a reasoned justification, and this has been the subject of a response by the appellant".
He then set out the appellant's objections and concluded that their misgivings were either overstated or misleading.
"On the basis of the evidence I have heard I am satisfied that the phenomenon is not fully taken into account in ETSU-R-97 and the condition proposed is of a precautionary nature. I would have more sympathy with the appellant's view had the purpose of ETSU-R-97 been merely the preservation of amenity, but it is not. From the viewpoint of wind farm neighbours the most important purpose of ETSU-R-97 would be more accurately described as the preservation of sleep. Taking account of both this and the uncertainties to which I have already referred, it is for these reasons that in my opinion the imposition of conditions is both necessary and reasonable".
"186. As far as the effect of the scheme on the character and appearance of the surrounding area is concerned, I have concluded that although the development would result in the creation of a localised zone in which the turbines would dominate the landscape character, this would diminish quite rapidly. I see no significant objection to the proposed development in relation to its effect on the historic environment. In visual terms however, I believe there would be locations to the north of the appeal site which would be harmed by the development. In contrast, I have concluded there would be no equivalent effect in relation to the local ecology. The effect of the scheme on the noise environment was the subject of much evidence and occupied a significant proportion of the inquiry. The issue is the subject of specific guidance, but I am concerned that with the growth of knowledge and the advent of larger commercial machines, ETSU-R-97 is not now as applicable as previously. However, subject to some important conditions, I have concluded that the effect of the scheme is likely to fall within the limits which were designed, in part, for the protection of wind farm neighbours. I have also taken account of other matters which I did not consider constituted main issues but which were raised by contributors to the inquiry.
187. In conclusion, the harm I have identified is fairly limited. In respect of the landscape protection provisions of the development plan there is conflict with structure plan Policy CO1, local plan Policy NE10, and Policy EN 1 of RPG 10. The protection of the landscape is also a component of Policy RE 6 of RPG 10 of structure plan Policy CO12, and of local plan Policy PS10. The purpose of these policies is to support the exploitation of renewable energy, but they require in each case that a balance is struck. The latter policies also require that account is taken of the living conditions of nearby residents. The purpose of structure plan Policy CO16 and local plan Policy BE18 is more specific – to protect existing residents from noise pollution. This is also one of the purposes of ETSU-R-97. I have concluded that, subject to conditions to regulate its impact, the scheme would conflict with neither Policy CO16 nor Policy BE18 and that the conflict with the landscape policies to which I have referred is sufficiently limited to be outweighed by the purposes of structure plan Policy CO12, local plan Policy PS10, and Policy RE 6 of RPG 10. It is for the reasons given above that I have concluded the appeal should be allowed".
"Section 288 of the Town and Country Planning Act 1990, so far as relevant, provides as follows:
'(1) If any person
(b) Is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action, on the grounds –
(i) that the action is not within the powers of the Act; or
(ii) that any of the relevant requirements have not been complied with in relation to that action
He may make an application to the High Court under this section'.
By section 288(4), section 288 applies to any such action on the part of the Secretary of State as is mentioned in section 284(3). One of the actions mentioned in section 284(3) is "any decision on an appeal under section 78"(which confers a right of appeal against planning decisions by local planning authorities).
Section 288(5)(b) provides that on an appeal under section 288 the High Court may, if satisfied that the action in question is not within the powers of the Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that action".
"The central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down to earth reading of his decision letter without excessive legalism or exogetical sophistication";
"14. So far as reasons-challenges are concerned, in South Bucks DC v Porter  1 WLR 1953 Lord Brown of Eaton-Under-Heywood, with whose opinion the other members of the House agreed, set out a useful summary of the law at paragraph 36 of his opinion (see  1 WLR 1953, at 1964), as follows:
'The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example, by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration they should enable disappointed developers to assess their prospects of obtaining some alternative development permission or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision'".
Ground 1 - Amplitude modulation and conditions 20 and 21
"20. At the request of the local planning authority following the receipt of a complaint the wind farm operator shall, at its expense, employ a consultant approved by the local planning authority, to assess whether noise emissions at the complainant's dwelling are characterised by greater than expected amplitude modulation. Amplitude modulation is the modulation of the level of broadband noise emitted by a turbine at blade passing frequency. These will be deemed greater than expected if the following characteristics apply:
A) A change in the measured LAeq, 125 milliseconds turbine noise level of more than 3 dB (represented as a rise and fall in sound energy levels each of more than 3 dB) occuring within a 2 second period.
B) The change identified in (a) above shall not occur less than 5 times in any one minute period provided the LAeq, 1 minute turbine sound energy level for that minute is not below 28 dB.
C) The changes identified in (a) and (b) above shall not occur for fewer than 6 minutes in any hour. Noise emissions at the complainant's dwelling shall be measured not further than 35m from the relevant building, and not closer than within 3.5m of any reflective building or surface, or within 1.2m of the ground.
21. No wind turbine shall generate electricity to the grid until the local planning authority, as advised by a consultant approved by the local planning authority at the expense of the operator, has approved in writing a scheme submitted by the wind farm operator providing for the measurement of greater than expected amplitude modulation emissions generated by the wind turbines. The objective of the scheme (which shall be implemented as approved) shall be to evaluate compliance with condition 20 in a range of wind speeds and directions and it shall terminate when compliance with condition 20 has been demonstrated to the satisfaction of and agreed in writing by the local planning authority".
"Since a planning permission is a public document and breach of a condition may ultimately have criminal consequences if a breach of condition notice and/or an enforcement notice is served/issued and not complied with, it is essential that any obligation by way of a condition is clearly and expressly imposed. In both Crisp from the Fens and Carter, the Court of Appeal concluded that the condition in question was ambiguous. That is not the position in the present case. There is no ambiguity in condition 12".
"I have never heard of an implied condition in a planning permission and I believe no such creature exists. Planning permission (inaudible) is not simply a matter of contract between the parties. There is no place, in my judgment, within the law relating to planning permission for an implied condition. Conditions should be expressed, they should be clear, they should be in the document containing the permission".
"If conditions are to be included in a public document such as a planning permission, they should be clearly and expressly imposed, so that they are plain for all to read. There is no room for implication".
"If the inspector's decision is read in the context of the planning guidance and conditions, it appears clear to me what the inspector intended, though his intentions could, with respect, have been expressed more clearly including the conditions imposed".
"179. It is in Note 4 that the conditions reach their conclusion. The DBJRG holds that the Note should require that any offending turbine is switched off. I acknowledge that this would be a logical conclusion of the process, but it would clearly constitute a serious step which should only be taken after due consideration of all the circumstances. It would be a matter for the council in the first instance. In this respect I agree with the appellant that such action falls to be specified in either a Breach of Condition Notice or an Enforcement Notice. I anticipate that the scheme required by draft noise condition 4 would inevitably involve switching off selected turbines for temporary periods in order to permit the necessary evaluation".
Grounds 2 and 3 - conflict with PPS22 and methodology of noise assessment
"The 1997 report by ETSU for the Department of Trade and Industry should be used to assess and rate noise from wind energy development".
Ground 4 - uncertainties and the precautionary approach
Ground 6 - Alternatives
"Where ... there are clear planning objections to development upon a particular site, then it may well be relevant, and indeed necessary, to consider whether there is a more appropriate site elsewhere. This is particularly so when the development is bound to have significant adverse affect, and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it".
"I accept that the reference to careful consideration of location may be said to imply a need for the developer to be able to demonstrate the particular merits of the selected site, but it is far from requiring the decision maker in every case to review potential alternatives as a matter of obligation. It is left as a matter of planning judgment on the facts of the case. That is how the inspector approached it, and he was entitled in law to do so."
Ground 7 - Structure plan policy CO1
"The distinctive qualities and features of Devon's landscape character zones ... should be sustained and enhanced".
Ground 8 - visual impact
Ground 9 - Bats
(i) Error in approach:
"Overall impact magnitude is negative on a receptor of district/borough importance; impact magnitude is negative and impact significance moderate negative; overall anticipated residual impact is minor negative. It is my considered opinion that the proposed wind farm would not, however, significantly impact on the conservation status of local populations of this species".
"The scheme thus entails the threat of some harm to individuals but not to roosts, and there is no suggestion that the turbines would constitute a threat to local bat populations".
(ii) Habitats Regulations
"Whereas a general system of protection is required for a certain species of flora and fauna to compliment directive 79/409/EEC (the Birds Directive) whereas provision should be made for management measures to certain species, if their conservation status so warrants, including the prohibition of certain means of capture or killing, whilst providing for the possibility of derrogations in certain conditions".
"1) Member states should take requisite measures to establish a system of strict protection for the animal species listed in annex (iv)(a) in their natural range, prohibiting:
(a) All forms of deliberate capture or killing of specimens of these species in the wild".
The protected species listed in annex 4 includes bats.
"1) Provided there is no satisfactory alternative, and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, member states may derogate from the provisions of Article 12
(c) In the interests of public health and public safety or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment ...".
"The Secretary of State and the Nature Conservation Bodies shall exercise their functions under the enactment relating to nature conservation so as to secure the compliance with the requirements of the Habitats Directive".
"Without prejudice to the preceding provisions, every competent authority in the exercise of any of their functions shall have regard to the requirement of the Habitats Directive, so far as they may be affected by the exercise of those functions".
"39(1) A person commits an offence if he -
(a) Deliberately captures, injures or kills any wild animal of an European protected species ...".
"44(1) Regulations 39, 41 and 43 do not apply to anything done for any of the following purposes under and in accordance with the terms of a licence granted by the appropriate authority.
(2) The purposes referred to in paragraph (1) are -
(e) preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment.
(3) The appropriate authority shall not grant a licence under this regulation unless they are satisfied -
(a) that there is no satisfactory alternative, and
(b) that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range".
"An offence is also committed by a person who might not intend to capture or kill a species but is sufficiently informed and aware of the consequences that his actions will most likely have and, nevertheless, performs the action leading to the capturing or killing of specimens with reckless disregard of the known prohibitions".
That definition was accepted as applying to Article 12(1)(a) by the ECJ in Commission v Spain C/221/04 and referred to by Ward LJ in R (Morge) v Hampshire County Council  EWCA Civ 608 at paragraph 29. Reliance was placed on R (Woolley) v Cheshire East Borough Council  EWHC 1227 where the issue of Article 12(1) of the EC Habitats Directive was considered. From that, Mr Taylor submitted that there were four questions to ask:
Because the inspector did not engage with Article 12 issues, the claimant submits there is a fundamental error of law.
"Whilst I accept that there is no general rule preventing a party from raising new material in a section 288 application, it will only be in very rare cases that it would be appropriate for the court to exercise its discretion to allow such material to be argued. It would not usually be appropriate if the new argument would require some further findings of fact and/or planning judgment, matters which are for the inspector not for the court".
I make it clear that I regard this as one of those very rare cases which Sullivan J referred to. It is not to be taken as a licence to add additional grounds in the generality of cases, it is simply as a result of the factual context of the current case and the respective positions of the parties that I have found it appropriate to grant the necessary application to amend the claimant's grounds.
"The data collated suggests no roosts were located within the bounds of the site and, therefore, bats were commuting through the site and forging. In particular, the majority of bats kept a hedgerow habitat and green lane systems, as indicated within the ES. The data reflected the probable absence of a significant breeding roost of any bat species within the area ...".
At paragraph 5.4.25:
"It has been stated that, of the eight species of bat found on site, seven are known to fly close to ground level, beat along hedgerows or water bodies. It is unlikely that such species would come into contact with turbine blades which are elevated at height above which normal flight activity occurs".
"The most vulnerable bat species recorded within the Den Brook site was the Noctule. This species characteristically flies at high levels and does not adhere to linear landscape features. It can, therefore, be found flying over fields to forge or commute. Th Noctule bat is recorded at very low numbers and scattered throughout the site. I acknowledge that this species is recognised by Natural England as being at high risk from collision, however the number of registrations recorded at Den Brook was very low, which reduces the overall risk considerably".
"The threat of some harm to individuals but not to roosts, and that there is no suggestion that the turbines would constitute threat to local bat populations"(Paragraph 66).
"In my view, that engagement involves a consideration by the authority of those provisions and considering whether the derogation requirement might be met ... but the point is that it is only by engaging in this kind of way that the authority can be said to have any meaningful regard for the directive".
Ground 10 - PPS22 and failure to minimise impacts
"(viii) Development proposals should demonstrate any environmental, economic and social benefits, as well as any environmental and social impacts that have been minimised through careful consideration of location, scale, design and other measures".
"There is certainly no legal principle of which I am aware that permission must be refused if a different scheme could achieve similar benefits with a lesser degree of harmful effects. In such a situation, permission may be refused but it does not have to be refused. The decision maker is entitled to weigh the benefits and dis-benefits of a proposal before him and to decide, if that is his planning judgment, that the proposal is acceptable even if an improved balance of benefits and dis-benefits could be achieved by a different scheme".