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 MAGEEAN||Claimant|
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT||Defendant|
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MR J LITTON QC (instructed by THE TREASURY SOLICITOR) appeared on behalf of the Defendant
MR J NEILL (instructed by HAMMONDS) appeared on behalf of the Interested Party
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"Development likely to have significant effects on the environment by virtue of factors such as nature, size or location" (Regulation 2).
"It is considered by the local planning authority that the turbine could, by means of its height, position and location, have a significant impact upon the landscape to the North and East, much of which is covered by AONB designations."
AONB stands for Area of Outstanding Natural Beauty, a national designation of landscape importance. One AONB lies 4km to the West of the site, another 6km to the East.
"In the opinion of the Secretary of State, and having taken into account the selection criteria in schedule 3 to the 1999 Regulations, the proposal would not be likely to have significant effects on the environment by virtue of factors such as its nature, size and location".
Some criticism is made by the claimant of the wording of the direction, but it is not suggested that it is invalid or inapplicable for that reason.
"After careful consideration of all the information, including the many comments from residents, it is considered that, having regard to national and local policy for renewable energy development, and on the basis that the wind turbine would not unacceptably harm the landscape character and visual appearance of the area as a whole, a recommendation of approval is warranted".
Members, however, disagreed and planning permission was refused for the reason that:
"The proposed development would be detrimental to the appearance and character of the landscape and, as such, is contrary to development plan policies which seek to protect the landscape, including the World Heritage Site".
"•The effect of the proposed development on the landscape character and visual appearance of the surrounding area; and
•Whether harm from the proposal, including any to the character and appearance to the area and any other harm, would be outweighed by the need for increased renewable energy generation" (paragraph 4).
"20. The site is sufficiently distant from the AONBs and World Heritage Sites, that there will be no detrimental impact on these nationally and internationally important designated areas. The site would appear in some long distance views from east and west, but it would appear as a small feature and would not cause harm to the generally wide and panoramic outlook. The site is located within attractive pastoral countryside, but AGLV status should not in itself be a reason to withhold planning permission. Because of the character of the landscape, views of the site from closer public vantage points would often be interrupted by the rise and fall of the land and the presence of hedges and woodland.
21. Whilst the area of rural land east of Pensilva, including Charaton, Tremeer and Fillamore, would be most affected by the proposal, the impact on public views would again be intermittent. The turbine, by virtue of its scale and in the context of the surrounding rural area, would be detrimental to private views from a small number of residential gardens and properties. I conclude that the proposed development would have a detrimental impact on the landscape character and visual appearance of the area immediately west and north west of the site, though the extent and severity of the impact would be limited. The proposal would be consistent with the thrust of PPS7 and PPS22 and the emerging RSS, but would conflict with some saved policies of the local plan".
"26. The UK response to issues of climate change means that increasing amounts of electricity have to be supplied over time from renewable sources. A target of 20% for the UK has been set for 2020, and this target is likely to be raised. I am advised that the Cornwall structure plan target of 93 mw of installed capacity by 2010 is unlikely to be met. The capacity of the current proposal is 1.3 mw and it is estimated that it could meet the energy needs of 550 households, based on local average annual consumption levels. Whilst Green CATS for the local community questions of the benefits of the scheme in terms of meeting demand for energy and reducing CO2 emissions, PPS22 paragraph 18 and the local policy is supportive of both small scale renewable energy projects and wind turbines in general. The drive for changes to increase energy efficiency and reduce usage wherever possible should not count against the need for an increased supply in energy from renewable sources. I consider that the contribution which this proposal would make to the greater use of renewable energy and to meeting county and national targets, is a significant factor in its favour.
27. Set against this is the adverse impact which the proposal would have on visual amenity, particularly on the fairly localised area immediately west and north west of the appeal site. It seems to me that the major impact would be on private views from Fillamore and some other properties. I have had regard to paragraph 40 of PPS1 which confirms that the planning system operates in the public interest. In this case, I consider that, although there would be some harm to private amenity through loss of views towards open countryside, this is outweighed by the generally low level of harm in terms of landscape character and visual intrusion, and to public interest. I am satisfied that other harm, such as raised noise levels, would either be minor or could be mitigated adequately through suitable planning conditions.
28. This leads me to conclude that the total harm from the proposal, including that to the character and appearance of the area, is not of great magnitude and would be outweighed by the contribution to the increased generation of renewable energy. I have therefore decided to grant planning permission".
The Inspector went on to discuss conditions and a planning obligation in paragraphs 29 and 30. She granted planning permission subject to 22 conditions set out in a schedule.
"There is no contemporaneous record of the Inspector's consideration of the screening direction" (see letter dated 16 December 2009 from the Treasury Solicitor).
Then, on 24 February 2010, the first defendant disclosed documents internal to the Inspectorate described at "Pin's desk instructions in relation to EIA" and the appeal check list specific to this appeal. The appeal check list contains a question, 1B, which asks "is EIA required?" with an answer "yes/no" to be completed with a date. Question 1B also directs the person answering the question the indicate under which schedule of the EIA Regulations the development falls and, if schedule 2, whether the development is in a sensitive area or the applicable threshold is exceeded. None of question 1B has been answered, although many other questions on the check list have been answered.
"All appeals should be seen to have been screened ... Either the case officer or team leader, after having checked the appeal, must answer question 1B of the check list. Failure to complete the check list could lead to a court of law finding that we have failed to consider the need for EIA! ... Although at the application stage the LPA was responsible for carrying out the screening process, this does not remove Pin's responsibility as the competent authority at appeal stage to make a fresh assessment of every appeal we receive".
"The case officer should complete the EIA pro forma and pass the file to the team leader so that it can be forwarded to the HEO who, if necessary, will pass to the file to the OST to see if he/she agrees with the screening opinion. If OST ...
(ii) disagrees with the screening direction (a reversal of the screening direction will only be contemplated when new information affecting the requirement for EIA comes to hand) the government office/PCCD/PD will be consulted."
"If the above thresholds/criteria are exceeded/met, the development will be scheduled 2 development and should have been screened by LPA/GO".
"Full reasons must be given below for any decision on screening (attached separate sheet if necessary), including instances where you agree with the SO/SD provided".
"4. As a matter of fact, I was never asked to reconsider the screening direction.
5. Although it is not recorded in my decision letter, as a matter of fact I did consider whether Environmental Impact Assessment was required for the proposed development. For the reasons set out in my decision letter, including in relation to the landscape and visual impact on World Heritage Sites, I was satisfied that this development was not likely to have significant effects on the environment by virtue of factors such as its nature, size or location".
"Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out, whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer which may be supplemented by the authorities and by people who may be concerned by the project in question".
"Adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia of their nature, size or location, are made subject to an assessment with regard to their effects".
"A direction of the Secretary of State shall determine, for the purpose of these regulations, whether development is or is not EIA development".
Regulation 4.5 states that where the local planning authority or Secretary of State have to decide whether development is EIA development, they must take into account the relevant selection criteria in schedule 3. There are two important points to note as to the assessment whether development is likely to have significant effects on the environment for the purpose of deciding whether it is EIA development. First, it is necessary to look at all effects, beneficial and adverse, see BT PLC v Gloucester City Council  JPL 993 at paragraph 64 to 70. Second, whether environmental effects are significant has to be judged independently of any mitigation measures which might be employed to reduce impact, unless the effect of these is sufficiently clear, see Gillespie v First Secretary of State  2 P&CR 16 and R(Catt) v Brighton and Hove City Council  Env LR 32.
"Would have have a significant effect on the character and appearance of its immediate surroundings by reason of its design, size, scale and external appearance"
but he did not consider it would be an adverse impact. In consequence, the third party challenged the decision on the grounds that 1) the Inspector's conclusion was irreconcilable with the Secretary of State's screening direction; and 2) in that event, the proposal was EIA development and should have been assessed as such. The challenge was rejected.
"In my judgment, the argument falls at the first hurdle. The judgments being made respectively by the Secretary of State in deciding what screening direction to give, and by the Inspector in deciding the planning appeal, are quite different. The Inspector was not making or purporting to make an assessment of the development for the purposes of the Regulations and, in particular, was not having regard to the selection criteria in schedule 3 to the Regulations. His concern was rather with the planning merits of the development on particular aspects of the charcter and appearance of the area. The Inspector did not find that the development had had significant effects on the environment within the meaning of the Regulations. Indeed, he never had to address that question. The Secretary of State, by contrast, did have to. He was required, moreover, by Regulation 4.5 to take into account 'such of the selection criteria set out in schedule 3 as irrelevant to the development'. Superficially I acknowledge the Secretary of State's direction and the Inspector's conclusions, as expressed in the decision letter, appear to sit uneasily together. On closer analysis, however, they are perfectly compatible" (paragraph 19).
"Clearly, the Inspector ought not to invite such re-consideration merely because, on essentially the same facts, he finds himself in disagreement with the Secretary of State. He must recognise that there is often room for two views in making judgments of this nature and that the regulations accord the final responsibility to the Secretary of State. If, however, the Inspector were to discover during the course of the appeal process that the Secretary of State had proceeded under some important misapprehension as to the nature of the proposed development or the assumptions underlying it, or if other material facts came to light which appeared to invalidate the basis of the Secretary of State's direction, then he might well think it appropriate to invite reconsideration of the matter. This, however, would be expected to happen only very exceptionally, and only if the Inspector thought there was, at the very least, a realistic prospect of the Secretary of State now coming to a different conclusion. It should be recognised, moreover, that the Inspector is under no express duty to refer the matter back to the Secretary of State, and indeed has no express power to do so. The Regulations are silent on the point. In any given case therefore, his decision on whether or not to refer the matter back to the Secretary of State will fall to be judged solely by the touch stone of rationality. If, as here, no one even asked him to consider referring the matter back, it is difficult to see how his omission to do so could be judged irrational. In any event, nothing came to light at the inquiry before the Inspector here such as to invalidate the basis of the Secretary of State's direction" (paragraph 24).
"34. I accept counsel for the Secretary of State's submission that this is not the typical case of legitimate expectation which usually arises in the circumstances he described. It is, as the judge recognised, and counsel for the claimant rightly submits, a claim of unfairness amounting to an abuse of power, of which legitimate expectation is only one application. The abuse is based on an expectation that a general policy for dealing with asylum applications will be applied and will be applied uniformly. Serious errors of administration resulted in conspicuous unfairness to the claimant.
36. I agree with the judge's conclusion that the degree of unfairness was such as to amount to an abuse of power requiring the interventions of the court. The persistence of the conduct, and the lack of explanation for it, contribute to that conclusion. This was far from a single error in an obscure field. A state of affairs was permitted to continue for a long time, and in relation to a country which, at the time, would have been expected to be in the forefront of the defendant's deliberations. I am very far from saying that administrative errors may often lead to a finding of conspicuous unfairness amounting to abuse".
"The appellant must file the appellant's notice to the appeal court within (a) such period as may be directed by the lower court, which may be longer or shorter than the period referred to in sub paragraph (b); or (b) where the court makes no such direction, 21 days after the date of the decision of the lower court if the appellant wishes to appeal".
So, yes, your Ladyship does have power.