QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Secretary of State for Communities and Local Government
Waveney Borough Council
Stamford Renewables Limited
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Mr Justice Cranston:
Planning Application and Environmental Assessment
Council refuses planning application
"While it is considered that the Environmental Statement may have underestimated the impact of the turbine on some heritage assets, on balance it not considered that this impact is sufficiently significant to warrant refusal of the application."
The appeal to the planning inspector
The Inspector's decision letter
"20. It is concluded that the DM27 sequential test is not consistent with the framework. There is also potential conflict with a different specific test for large scale renewable energy infrastructure set out in policy DM03 and its supporting text. I therefore accord the DM27 sequential test little weight. However, the policy merits full weight in relation to the consideration of the effect of development on landscape character areas."
The Inspector returned to this in his overall conclusion as follows:
"137. Having regard to these benefits as required by Policy DM03 and which would contribute towards that policy's renewable energy targets, it is concluded that the identified adverse effects upon the landscape in particular do not qualify as significant adverse effects in the terms of that policy. Neither do the landscape and other identified adverse effects here outweigh the significant benefits either in the terms of that development plan policy or of national policy. The proposal is accordingly in compliance with the most directly relevant development plan Policy DM03 and the first part of Policy DM27 which in turn are broadly consistent with national policy. That compliance merits greater weight than either the other more general development plan policies or the SPD and other local guidance documents where there is any conflict."
"80…It can be concluded that the natural beauty of the Broads landscape itself would not be affected, simply because the turbine would be outside the designated area and would not obstruct views into it. Whether or not the enclosure of the valley is a key landscape characteristic, the turbine would clearly be located outside of the enclosed valley and would not reduce that sense of enclosure. Its apparent scale would be diminished by distance. NPS EN-3 confirms that the sight of a turbine outside the designated area should not be a reason for refusal. All the key characteristics of the Broads landscape would remain visible and the turbine's dominance of its immediate surroundings would not extend as far as those areas defined as of Broads character. It would be a new feature on the horizon seen against a small part of the wide sky but would not fail to conserve the natural beauty of the Broads.
81. There was some debate at the Inquiry as to whether consideration of effects on the Broads should relate to the whole of the designated area or only to the Waveney Valley near the appeal site. The S17A duty clearly applies to all the designated land and its constituent parts and it should not be necessary to demonstrate some effect on the whole Broads area. However it is relevant here that the small LCA0 part of the designated area closest to the turbine is not defined in the Broads LCA as of Broads character and that the landscape character perceived within that area is akin to that of the adjoining nondesignated landscape. Thus any changes seen within or from that landscape would have less effect on perceptions of the Broads than would changes seen within or from areas of Broads character that include LCA2 and LCA3.
82…[T]he turbine would not conceal or replace key characteristics of the landscape of the Broads or its natural beauty or prevent the public enjoyment of its landscape qualities."
… "[I]t is not inevitable that the noise limits would be exceeded. It is not more than a possibility, particularly as the limit already includes a 2dB margin for uncertainty in relation to sound power levels. Neither does it mean that if noise levels occur above the limits they must thenceforth be suffered at the affected property. The noise limits in the condition could be enforced by the Council…The financial risk of proceeding with the development would lie with the developer. If the developer was not confident that the noise limits could be met and sufficient energy be generated then the development would be unlikely to proceed."
On noise the Inspector concluded that the noise imissions were likely to remain reasonably low and compliant with the ETSU-R-97 guidance, and could be adequately controlled by condition: .
"122. Opponents of the appeal scheme have suggested that the 2MW turbine would make an insignificant contribution towards meeting the target. However that is a typical capacity for a wind turbine which is near the top end of the scale for onshore turbines. The only way to markedly increase capacity would be to add further turbines which would have a greater impact on their surroundings. Indeed the number of turbines proposed at this location has previously been reduced because of such impacts. As was pointed out at the Inquiry, the 2MW capacity could be equivalent to as many as 100 of the 20m high turbines preferred by the Broads Landscape Sensitivity Study if the output of each such turbine was a typical 20kW. That suggests that a 2MW capacity would be relatively high."
"125…No such building or area would be directly affected. I agree with the decision of the Council not to advertise the development as affecting the setting of any such building or area as I do not consider that any settings will be materially affected. In particular English Heritage has not raised any objection to the effect on the church at Shipmeadow, which was the subject of an objection to a previous scheme and a reason for refusal of that scheme. I also consider that the church at Barsham is too far away and subject to filtered views such that its setting also will not be materially affected, whether in views to or from the church, notwithstanding that the turbine and the church would appear in the same views from some locations. The setting of the churches would be preserved."
III THE CLAIMANT'S CHALLENGE
Ground 1: The Broads statutory duty
"shall have regard to the purposes of—
(a) conserving and enhancing the natural beauty, wildlife and cultural heritage of the Broads;
(b) promoting opportunities for the understanding and enjoyment of the special qualities of the Broads by the public; and
(c) protecting the interests of navigation."
Ground 2: Planning policy
"51. It follows that a proposal for renewable energy development may satisfy Policy DM03 but not Policy DM27. There are potentially competing policy presumptions: the presumption in Policy DM03 in favour of such development even if it would harm the landscape, so long as the harm would not be "significant", and the presumption against such a proposal in Policy DM27.
56. In these circumstances I think the Secretary of State had to explain how he would reconcile his conclusions relating to those two policies when he considered whether the proposal complied with the relevant provisions of the development plan. Because he was disagreeing with the inspector he could not rely on the inspector's reasoning.
57. Nowhere in his letter did the Secretary of State say that in his view the proposal was in accordance with the development plan or that it was not. He did not acknowledge any tension between Policy DM03 and Policy DM27, or between the conclusions he had reached when applying each of those two policies to the proposal before him…Should he give precedence to Policy DM03 or should he regard Policy DM27 as dominant? He could have taken the view that in this case Policy DM27 should prevail. But if this was his view the reasons for it are not clear in his decision letter, and I think they should have been."
Ground 3: Energy output of turbine
Ground 4: Noise
Ground 5: Listed buildings
IV TURBINE TYPE APPROVED IN THE PLANNING PERMISSION
5) Except as specifically provided for by other conditions, no electricity shall be exported until it has been completed in all respects strictly in accordance with the submitted plans and details and in compliance with any conditions imposed by the Local Planning Authority.
Schedule of approved plans:
Drawing number 0170/02/101 revision H (the site plan)
Drawing number 0170/02/201 (details of the proposed sub station)
Drawing number 0170/02/202 (cross sections through the access track, cable trench and crane platform)
Elevation drawing number TO5 0011-5737 Ver 02"
Drawing 0170/02/101 revision H states in the legend box:
"Turbine Model Vestas V90
Blades 3 @ 45m long each
Foundation 20m x 20m"