QUEEN'S BENCH DIVISION
2 Redcliffe Street
Bristol BS1 6GR
B e f o r e :
| ANITA COLMAN
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
- and -
NORTH DEVON DISTRICT COUNCIL
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RWE NPOWER RENEWABLES LIMITED
Richard Honey (instructed by The Treasury Solicitor) for the First Defendant
John Litton QC (instructed by Burges Salmon) for the Third Defendant
Hearing dates: 19 April 2013
Crown Copyright ©
Mr Justice Kenneth Parker :
The National Planning Policy Framework (March 2012) ("the NPPF")
"Planning law requires that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise. The National Policy Framework must be taken into account in the preparation of local and neighbourhood plans, and is a material consideration in planning decisions " (Footnotes omitted)
The Inspector's Decision
i) On-shore wind was essential to meeting the UK's need for energy security and reducing greenhouse emissions (paragraph 219).
ii) The savings in CO2 emissions were likely to be substantial and valuable over the lifetime of the scheme (25 years) (paragraph 227).
iii) There would be economic benefits from employment during construction and operation of the wind farm with possible expenditure of more than £1 million to the local economy (paragraph 228).
"234. Some employment would be generated by the development, but this would be mostly during the construction phase. However, the benefits of reduced greenhouse gas emissions would be long lasting and the need for new renewable electricity generating projects is urgent. Whilst the CO2 savings which this wind farm would achieve would not be as great as anticipated, they would nevertheless be valuable and, as such, would outweigh the limited harm which the scheme would cause.
235. Development plan policies which seek to promote renewable energy schemes provide no direct support for these proposals. This is because they only allow for the benefits of the scheme to be balanced against the harm, if the energy generated would contribute towards meeting the county's 2010 target of producing 151MW of electricity from renewable sources. That target no longer applies and the development plan's approach is outdated when considered against the Framework's presumption in favour of sustainable development.
236. This is not a case where the harm caused would significantly and demonstrably outweigh the benefits. Indeed, subject to putting suitable controls in place, the impact of the Batsworthy Cross Wind Farm would be acceptable and, on that basis, permission should be granted for the Appeal A proposals."
The Grounds of Challenge
A. Landscape Character
"The impact would also be limited to a period of 25 years, or less. Although this is a matter to be considered in the overall balance, it does not reduce the degree of harm or alter my conclusion that the proposals run contrary to LP Policy ENV1 and SP Policy CO1. However, the Framework requires a judgment to be made as to whether an adverse impact, such as this, would be outweighed by the scheme's benefits. This approach is unlike that set out in Policies ENV1 and CO1; it therefore carries substantial weight."
"Policy SP CO1
Landscape Character and Local Distinctiveness
The distinctive qualities and features of Devon's Landscape Character Zones, illustrated in Map 5, should be sustained and enhanced Policies and proposals within each part of Devon should be informed by and be sympathetic to its landscape character and quality." (My emphasis)
"Policy ENV1 (Development in the Countryside) Development in the countryside will only be permitted where:
A rural location is required.
It provides economic or social benefits to the local community: and
It protects and enhances its beauty, the diversity of its landscape and historic character, the wealth of its natural resources and its ecological, recreational and archaeological value."
B. Historic Buildings and Ancient Monuments (Cultural Heritage)
"Historic Settlements and Buildings
The quality of Devon's historic environment should be conserved and enhanced. In providing for new development particular care should be taken to preserve the historic character of settlements, the character and appearance of conservation areas, the historic character of the landscape, listed or other buildings of historic interest and their settings and parks and gardens of special historic interest and their settings." (My emphasis)
"Policy ENV17 (listed buildings)
Development affecting a listed building will only be permitted where it preserves the architectural or historic interest of the building and its setting." (My emphasis)
"Development plan policies simply seek to protect the setting of listed buildings, and of scheduled monuments, against harm, whatever the circumstances. There is no suggestion here that such harm would be substantial, in terms set out in the Framework. Considerable weight therefore attaches to the Framework's requirement that any harm should be balanced against the public benefits of the proposals; a matter that I return to later." (Footnotes omitted)
Renewable Energy Developments
"Renewable energy development
Provision should be made for renewable energy developments, including offshore developments, in the context of Devon's sub regional target of 151MW of electricity production from land based renewable sources by 2010, subject to consideration of their impact upon the qualities and special features of the landscape and upon the conditions of those living or working nearby." (My emphasis)
"Provision should be made for renewable energy developments to contribute towards Devon's sub regional target of 151MW of electricity production from renewable sources by 2010. In considering proposals for renewable energy, the benefits of the developments in meeting this target will be balanced against the impact on the local environment. A proposal for the generation of energy from a renewable source will be permitted where:-
The proposal, including any associated transmission lines, access roads and other related works does not adversely affect the visual character of its surroundings; it does not significantly affect the living conditions of the occupants of residential properties or the amenities of other users of the locality." (My emphasis)
"maximise renewable and low carbon energy development while ensuring that adverse impacts are addressed satisfactorily, including cumulative landscape and visual impacts." (My emphasis)
"Development plan policies which seek to promote renewable energy schemes [LP Policy ECN15 and SP Policy CO12] provide no direct support for these proposals. This is because they only allow for the benefits of the scheme to be balanced against the harm, if the energy generated would contribute towards meeting the county's 2010 target of producing 151MW of electricity from renewable sources. That target no longer applies and the development plan's approach is outdated when considered against the Framework's presumption in favour of sustainable development."
The second principal ground of challenge: the application of paragraph 14 of the NPPF was irrational/unlawful
"failed to observe the presumption in favour of the development plan and failed to give individual policies that conflicted with the proposal their proper weight."
"is at liberty to depart from the development plan if material considerations indicate otherwise. No doubt the enhanced status of the development plan will ensure that in most cases decisions about the control of development will be taken in accordance with what it has laid down. But some of its provisions may become outdated as national policies change, or circumstances may have occurred which show that they are no longer relevant. In such a case the decision where the balance lies between its provisions on the one hand and other material considerations on the other which favour the development, or which may provide more up-to-date guidance as to the tests which must be satisfied, will continue, as before, to be a matter for the planning authority."
"If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance. Thus the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations indicating that it should not be followed then a decision contrary to its provisions can properly be given. "
The Third Principal Ground: the Inspector was wrong to conclude that the proposed development did not conflict with Policy CO2
The Fourth Principal Ground: the Inspector failed to apply section 66 of the Planning (Listed Buildings and Conservation Areas Act) 1990 ("the PLBCA Act 1990")
"In considering whether to grant planning permission for development which affects a listed building or its setting, the Local Planning Authority, or as the case may be, the Secretary of State, shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses."
"In my judgment, in order to give effect to the statutory duty under section 66(1), a decision-maker should accord considerable importance and weight to the "desirability of preserving the setting" of listed buildings when weighing this factor in the balance with other 'material considerations' which have not been given this special statutory status. Thus, where the section 66(1) duty is in play, it is necessary to qualify Lord Hoffmann's statement in Tesco Stores v. Secretary of State for the Environment & Ors  1 WLR 759, at 780F-H, that the weight to be given to a material consideration was a question of planning judgment for the planning authority."
" the wind farm would be harmful to the rural valley setting of All Angels and thereby to the historic significance of this heritage asset. This would be contrary to LP Policy ENV17 and SP Policy CO7. Nevertheless that harm would be less than substantial in terms of the Framework's requirements."
"There would also be some harm to the setting of designated heritage assets and, in particular, to the historic significance of All Angels in Creacombe, but this would be less than substantial."