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
		12 December 2014

MR JUSTICE DOVE:

Introduction

1. This case concerns the decision of the Secretary of State to refuse planning permission for ten wind turbines and associated infrastructure as East Heslerton, Ryedale.
2. Two topics of complaint are raised. Firstly, the Defendant's conclusions in relation to landscape impacts on the North York Moors National Park ("NYMNP") which the site is not within, but which at its closest point is 9 kilometres from its boundary.
3. The second aspect is the assessment of the impact on cultural heritage in the decision, in particular the impact on St Andrew's Church, East Heslerton, which is a Grade I listed building designed by GE Street, the renowned exponent of the Victorian Gothic revival style of architecture in the late 19th century and indeed architect of the Royal Courts of Justice in which this judgment is being delivered.

History

4. The Claimants applied to the Interested Party (who did not appear in these proceedings), Ryedale District Council, for planning permission for the development described above on 18 March 2011. That application was accompanied by environmental information in the form of an Environmental Statement.
5. As is usual, the Environmental Statement included chapters on landscape and visual assessment and also archeology and cultural heritage. Within those chapters there was an evaluation methodology based on a matrix of analysing (A) the sensitivity of the landscape interest concerned or the historic asset, (B) the magnitude of the effect upon it leading to (C) a categorisation of the significance of that effect.
6. In relation to landscape and visual matters, the methodology separated out effects on landscape character from visual effects. In relation to landscape character, the impact on the NYMNP was said to be a low to negligible impact on a high sensitivity asset, giving rise to a moderate/minor impact of an "indirect long term/reversible neutral" type.
7. In respect of visual impact on the NYMNP, the impact was set out as "minor to no view" of a similar type based on a "negligible to no view" on a high sensitivity receptor. (See bundle page 242).
8. St Andrew's Church was assessed as a high sensitivity receptor and the analysis was described as follows:

"The development will be present in views out towards the countryside, particularly the view which is framed by the lychgate and which is further opened out when stepping through into the churchyard. However, it is considered that the development will not effect the way in which this view is interpreted or understood. The full assessment of the effect on this view is included within the landscape and visual assessment chapter 6 of Applicant's ES...

In conclusion, it is considered that in the case of the church, there is a potential for the development to have effect of "low" magnitude upon the building's setting. Therefore, the effect upon the building's setting is assessed as minor."

9. Various parties were consulted, including obviously the necessary statutory consultees. They made the following contributions to the Council's decision.
10. Firstly, Natural England provided two responses, the second of which is pertinent and which was made on 27 May 2011. They indicated as follows:

"Landscape, access and recreation including Yorkshire Wolds Way

Natural England does not consider that the proposal would have a significant effect on nationally designated landscapes, although it would be visible from areas of the North York Moors National Park (northern edge of detailed study area)."

11. On 20 April 2011, the North York Moors National Park Authority ("NYMNPA") stated that they had no comments to make in relation to the application. However, subsequently that position changed. In a letter of 15 June 2011 from Mr France, their Director of Planning, they noted their earlier position and then observed as follows:

"Whilst this assessment is a valid one in terms of the immediate setting of the Park, the proposal has been assessed from the landscape to the north of the villages of Hutton Buscel West and East Ayton where the boundary of the Park is at its closest to the proposed site, a distance of less than 10km. This is an area of elevated arable and pasture land characterised by linear roads and public footpaths that provide open views out across the Park and Vale of Pickering to the ridge of the Yorkshire Wolds.

Whilst not constituting the setting of the National Park, the Wolds escarpment forms an important visual backdrop to the extensive deeply rural views which characterise the southern vista from this part of the Park. The relationship between the landscape character areas of the Vale of Pickering and the Wolds and the southern dip slopes of the North York Moors is an important one where the lack of significant man made features and the linear character of the immediate and longer distance views are fundamental to the public enjoyment of the public enjoyment of the special qualities of the National Park.

The proposed wind farm would introduce a highly intrusive form of development which owing to its scale, vertical emphasis, the number of turbines, their elevated siting, movement and prominence in relatively close proximity to the National Park would seriously undermine these landscape features and therefore impact adversely upon the public enjoyment of the special qualities of the National Park within its south-eastern edge area."

12. On 6 May 2011, English Heritage wrote to the Council complaining about the quality of the assessment of the historical environment in the Environmental Statement and the paucity of the extent of the illustrative material. They recommended as follows in relation to the application:

"We consider the harm caused to the setting of heritage assets will compromise their appreciation. The development does not make a positive contribution to or better reveal the significance of the heritage assets in the area and the requirements of policy HE 10.1 of Planning Policy Statement 5 therefore apply (i.e. that the harm is weighed against the wider benefits. There is no evidence in the application that other less damaging sites or methods of power generation have been explored in accordance with policy HE 1.2 of PPS5. We recommend your Council weighs the harm against the benefits of the proposal and considers the justification for it. We also recommend in doing so your Council is mindful as to whether this case forms a precedent in respect of wind farms breaching the ridge of the Wolds' escarpment."

13. The Claimants decided to produce more environmental information, in particular in response to some of these consultations and in March 2012 published a Supplementary Environmental Information ("SEI"). That provided in relation to the NYMNP further analysis based on the identified special qualities of the National Park defined in its management plan. More viewpoints were analysed from the southern part of the National Park looking towards the site.
14. Two passages from that documentation will suffice to show the outcome of that evaluation:

"The character of the views from this part of the NYMNP viewing south west towards the development are however invariably compromised by either land form and/or buildings/vegetation and from more elevated locations by either vegetation or telegraph poles which interfere with the view. Where there are open views across the Vale of Pickering towards the Yorkshire Wolds, these are more of an incidental nature and are not of a particularly high scenic quality in terms of presenting a vista or panoramic view. As in most cases, the Vale of Pickering and/or the Yorkshire Wolds are only partly visible or truncated. Further, it may be noted that there are no public viewpoints, viewing platforms or similar to indicate that the area is particularly valued for these views or that they are important to the special qualities of the Park or its integrity in whole or in part."

"It is accepted that the Vale of Pickering and the enclosed Wolds and southern dip slopes of the North York Moors have an important geological formation that contribute to the areas' sense of place and visual character. The Vale of Pickering is, however, a settled rural landscape with pylons, agricultural sheds, roads, rail and some towns all within a minor rural setting. Skyline is simple and reposeful and it is claimed that this remote backdrop, however attractive, is fundamental to the public enjoyment of the special qualities of National Parks is overstated and conflicts with the information provided in the NYMNP management plan and the relevant landscape character assessment. As stated earlier, there are no viewpoints, platforms, visitor/tourist information or evidence to suggest that this is a fundamental valued quality to conclude the development would not significantly effect the special qualities, purpose and integrity of the NYMNP designation."

15. Turning to the further environmental information in relation to St Andrew's Church, the SEI provided as follows:

"Viewpoint figure PP 10.1 presents a view from Carr Lane (north of East Heslerton) facing south at National Grid reference SE9278477115. From this location the church appears as a landmark with the backdrop of the Wolds' escarpment with the spire just breaking the skyline. The church loses some of its presence against the backdrop of the escarpment and is not so prominent itself in this view as opposed to views from east or west along the valley/escarpment bottom where the spire is prominent above the horizon (but in which views the turbines and the church are not visible together). The presence of the church diminishes with distance the further north the viewer is. Although the turbines are not visible in this particular view, it is likely that the turbines would be more visible through intervening vegetation in winter and as the viewer moved along Carr Lane. Examination of the accompanying wire frame indicated that only parts of the turbines would be visible specifically from the hub and above. Not all of the proposed turbines would be visible in any case. It is recognised that the turbines introduce a new element above the ridge line and this is a change from the current situation. However, it is not considered that the architectural value and historic associations of the church are significantly affected by this. It is considered that although there is an effect on the wider setting of the church in terms of views including the church towards the south, this is still characterised as "low" in magnitude as it effects the church's wider setting and its presence of the landmark in views in one direction only. Viewpoint figure PP 10.3 protects the view along the A64 facing west and is designed to further inform the effect of the development upon St Andrew's in terms of the latter's value as a historic landmark. This view clearly demonstrates that the church will not be seen alongside the turbines in the forward views to the east and west along the A64 and where the church is clearly visible, there is considerable seperation between the spire and the turbines (effectively the turbines are at a 90 degree angle from the spa). Where the current views of church and turbines from the A64 potentially occur closer to and in East Heslerton, the available views become more distant due to screening vegetation and the built form of the village. It is considered that the church will not receive significant effects upon the setting in this view and that the development will not significantly detract from the presence of the spire as a prominent landmark viewed from the east/west orientated A64."

16. English Heritage responded to the consultation about the SEI on 21 May 2012. Their response to this new information was as follows:

"It is apparent from figures PP 10.1A that the wind farm would have a harmful impact on the setting and therefore the significance of the Grade I listed church of St Andrew's at East Heslerton with its prominent spire. Additionally, it was apparent on our visit that parts of the turbines would be prominently visible in views adjacent to and within the churchyard of St Andrew's Church. This is not disputed in the Supplementary Environmental Information. We note the statement on page 25 (the first paragraph devoted to this church) that "the effect was not considered to be significant in terms of the EIA regulations, not least because the architectural and historic value of the church itself was not compromised." However, we consider that the presence of the turbines would harm its significance in that from adjacent to and within the churchyard, its relationship to the landscape as a dominant element within it would be compromised...

We consider the harm caused to the setting of the heritage assets will compromise their appreciation. in Paragraph 131 of NPPF states that in determining planning applications, Local Planning Authorities should take account of "the desirability of new development making a positive contribution to local character and distinctiveness". The wind farm proposal fails to do this. Nor does it "enhance or better reveal their significance" (paragraph 137). Paragraph 132 makes clear that "significance can be harmed or lost through alteration or disruption on the heritage asset or development within its setting". We consider that in this case, the harm to the setting and therefore the significance of St Andrew's and St Hilda's Churches would be less than substantial and therefore the harm should be weighed against the public benefits of the proposal (Paragraph 134)...

Recommendation

We consider the harm caused to the setting of the heritage asset will compromise their appreciation. The development does not make a positive contribution to local character and distinctiveness, nor does it enhance or better reveal the significance of heritage assets whose setting it effects. We therefore recommend your Council weighs the harm against the public benefits of the proposal."

17. The Interested Party commissioned its own independent review of the landscape and visual issues from a firm of qualified landscape architects, Golden Associates. They also applied an evaluation methodology to the analysis of landscape and visual effects. In essence, their conclusion can be summed up in the following quotation from their report:

"The proposed wind farm would undoubtedly have an adverse effect on the setting of the North York Moors National Park. However, it is considered the effects would not be significant and is unlikely that this would constitute a reason for refusal. It is also unlikely that an objection from the National Park Planning Authority could be upheld at inquiry."

18. The application was considered by the Interested Party's Planning Committee on 14 May 2013 with a recommendation in the officer's report that permission should be granted. In fact, permission was refused and a notice served on 16 May 2013 contained two reasons for refusal. Both of those reasons for refusal were landscape related, but neither related to an impact on the NYMNP. The concerns raised by the Council in reasons for the refusal related to Wolds area of high landscape value and the Wolds Way National Trail.
19. The Claimant appealed against that refusal of planning permission on 2 July 2013 and the Defendant recovered the appeal on 11 October 2013.
20. On 19 November 2013, a public inquiry in relation to the proposals was opened. At that inquiry, both the Appellant and the Council called professional landscape architect witnesses to support their respective cases.
21. There was also a statement produced by the Claimant in relation to cultural heritage matters. A statement of common ground was produced for the purposes of the inquiry which addressed a range of issues concerned in the decision. In particular, in relation to national landscape designations, the statement of common ground recorded as follows:

"7.12. It is common ground between the Applicant and the Council that the proposed development will not have significant effects on any national landscape designations during construction, operational or decommissioning phases (both in terms of their special qualities and views in and out of such landscapes)."

22. The inspector asked Mr France to attend and give evidence on behalf of the NYMNPA. A note was taken of the evidence when he attended the inquiry. I quote from the note of his evidence, which was not long and indeed what I am about to quote amounts to probably over 50 per cent of the contribution which he made to the proceedings at the inquiry:

"Inspector: At your letter at paragraph 3, you state, "Whilst not constituting the setting of the National Park, the Wolds escarpment forms important visual backdrop to the extensive deeply rural views which characterise the vista in this part of the Park." You identify "an important visual backdrop", but not the setting. How do you define the setting?

Mr France: This is unresolved given that there is no guidance regarding setting. At circa 10 kilometres from the nearest boundary, this is not the setting. Being close and visible to the National Park would impact on the promotion of enjoyment and special qualities. At the site visit, I saw linear public roads/rights of way. It is a rural view with no significant man made features. It is harming that rather than the setting.

Mr Male (on behalf of the Appellant): After your letter was submitted in June 2011, the Appellant submitted Supplementary Environmental Information in March 2012. The NYMNPA did not submit anything further in response to this. Did you review the Supplementary Environmental Information and undertake any further site visit with the supplementary information?

Mr France: I did review the Supplementary Environmental Information, but did not undertake any further site visit or review. This is a "in principle" objection."

23. On 12 February 2014, the Inspector furnished his report and recommendation to the Defendant. In his summary of the cases of the various parties who appeared before him, he distilled the case which was made on behalf of the NYMNP:

"158. Chris France is Director of Planning at the North York Moors National Park Authority. The Authority considers that the wind turbines would be of sufficient distance from the southern boundary of the National Park not to impact adversely on its setting. Whilst this assessment is a valid one, the proposal has been assessed from the landscape to the north of the villages of Hutton Buscel West and East Ayton where the boundary of the Park is at its closest to the proposed site, a distance of less than 10km. This is an area of elevated arable and pasture land characterised by linear roads and public footpaths that provide open views out across the Park and Vale of Pickering to the ridge of the Yorkshire Wolds.

159. Whilst not constituting the setting of the National Park, the Wolds escarpment forms an important visual backdrop to the extensive deeply rural views which characterise the southern vista from this part of the Park. The relationship between the landscape character areas of the Vale of Pickering and the Wolds and the southern dip slopes of the North York Moors is an important one where the lack of significant man made features and the linear character of the immediate and longer distance views are fundamental to the public enjoyment of the special qualities of the National Park.

160. The proposed wind farm would introduce a highly intrusive form of development which owing to its scale, vertical emphasis, the number of turbines, their elevated siting, movement and prominence in relatively close proximity to the National Park would seriously undermine these landscape features and therefore impact adversely upon the public enjoyment of the special qualities of the National Park within its south-eastern edge area. As such, the proposal is considered to be contrary to national advice relating to the siting of renewable energy projects outside but close to designated areas."

24. In relation to the Inspector's own assessment of the landscape and visual issues and in particular those issues relating to the NYMNP, the Inspector concluded as follows:

"191. Whilst considering landscape impact, the effect on the North York Moors National Park (NP) needs to be assessed. The most obvious way in which the turbines would affect the NP is as a distracting element on the horizon, visible from the opposite side of the Vale of Pickering and from areas of the NP that extend southwards at Hutton Buscel and Thornton-le-Dale (a minimum distance of about 9 km). Viewpoint 10 illustrates the visibility of the proposal from a point near to Hutton Buscel at about 8.25 km. At this distance, this indicates that almost all of the hubs and blades would be visible above the crest of the scarp; but turbines would be sufficiently far back from the crest to avoid being seen at full height from any location in the Vale of Pickering or the NP.

192. However, the angle of view occupied by turbines would be small. The breadth and scale of the Vale of Pickering as a whole overwhelms the view south from any part of the NP. Whilst the turbines would represent a change in the view, there are no identified special qualities of the NP which comprise distant views towards the Wolds and as a result the development would not lead to any harm to any special qualities. Whilst the effect should not be completely disregarded, the development would not significantly detract from the natural beauty and special qualities of the NP or its setting. In coming to this conclusion I note that the Council has no objection on this ground. Moreover, the development would be removed after 25 years, a consideration that bears on landscape matters."

25. Turning to the Inspector's assessment of the impact upon St Andrew's church, he concluded as follows:

"215. However at East Heslerton, St Andrew's is a Grade I listed church by the well known Victorian architect G E Street with a significant presence in the village. It is a landmark in the Vale of Pickering, as it possesses a high octagonal tower and spire. Built in 1877, it also features a lychgate, an elaborate wrought iron lamp standard and churchyard cross, each separately listed at Grade II and all near the large western entrance porch. There is important group value in these assets, which are set within an extensive open churchyard without any trees of any significance. The building is approached from the west or the east and turbines would be visible on both approaches because of the lack of any buildings or significant screening between it and the escarpment. The conspicuous raised skyline draws the eye and contributes significantly to its setting at the southern edge of the village. Passing through the lychgate on the west side, blades and hubs would be visible on the ridge at a distance of just over 2 km beyond the conspicuous block of woodland on the crest at Manor Farm, in the same view as the other listed assets. Sheep graze up to the boundary of the churchyard.

216. The development would influence the way the asset is interpreted and understood because partial views of moving blades on a significant part of the conspicuous crest of the escarpment on the main approach and from within the churchyard would be a distracting element in this quiet rural setting, which apart from a few 20th century dwellings to the west, is unaffected by modern development. The view up to the crest is not a 'designed' view but it is prominent in the experience of visiting the church. The harm caused to the setting would not be so severe as to amount to 'substantial harm' in the terms of the NPPF. The impact would be adverse and this weighs against the proposal. The public benefits have to be considered in the final balance."

26. In his overall conclusions, the Inspector found as follows:

"229. The supporting text to LPS policy SP18 refers at paragraph 7.33 to the 2011 AECOM Report and the fact that it identified a variety of sources of renewable and low carbon energy as being feasible and viable within Ryedale. Commercial wind is one such source, with its potential contribution towards Ryedale's installed capacity being assessed at 10MW. Whilst that provision was anticipated in the Vale of York, development is not precluded in AHLVs. The recent PPGRE does not rule out energy development in designated areas such as National Parks and AONBs and reiterates that in all cases, detailed landscape assessment is necessary. That is what has been done here, independently professionally reviewed by the Council at application stage, agreed to be properly carried out in the SOCG and extensively discussed at the Inquiry in the light of up to date national and local policies. The proposed development of the appeal site conforms with the aims of LPS policy SP18 and the likely contribution it would make to renewable energy production and CO2 savings attracts very significant weight.

230. Moreover, acknowledging that on-shore wind development will always have significant landscape and visual effects, the proposal has been designed to relate to the undulating contours of the Wolds landscape and would not conflict with the design quality aims of LPS policy SP16. Additional benefits that weigh in favour concern the economic benefits that flow from construction work such as employment; and the improvement and reinstatement of hedging which has suffered from intensive agricultural encroachment and removal.

231. Against that, there would be a conflict with LPS landscape protection policies by way of a moderate degree of harm to landscape character and tranquillity within a 3.5 km radius of the site, but the scheme would be satisfactorily assimilated further into the wider landscapes on each side of the escarpment, which are of very substantial scale and extend for many kilometres. The visual impact would be major for users of the few public rights of way through the site itself, but would only affect a limited part of the Wolds Way, where only a small part of the experience would be affected. The minor overall level of harm caused in terms of visual intrusion would not compromise people's enjoyment of the Wolds Way or any other PROW, except for a very short distance.

232. There would be a minor degree of harm to the setting of St Andrew's Church at East Heslerton, but this would not amount to substantial harm. No other heritage asset would be significantly adversely affected."

27. In the light of these conclusions, the Inspector's formal recommendation that was that the appeal should be allowed subject to conditions.
28. The Defendant's decision letter was issued on 27 May 2014. The Defendant differed from the Inspector in two respects relevant to this challenge. First, within the assessment of the evaluation on landscape and visual impact, he assessed the impact on the NYMNP differently. He stated as follows:

"15. When viewed from parts of the South-Eastern edge of the North York Moors National Park almost all of the turbine hubs and blades would be visible above the crest of the Wolds scarp, albeit they would be sufficiently far back from the crest to avoid being seen at full height from any location in the National Park. Nevertheless they would be a distracting element on the horizon visible from areas of the National Park that extend southwards at Hutton Buscel and Thornton-le-Dale. The Secretary of State has had regard to the facts that the turbines would be at least 9 km away from the Park, the angle of view occupied by them would be small and there are no specifically identified special qualities of the National Park which comprise distant views toward the Wolds specifically. However he agrees with the assessment of the Director of Planning at the North York Moors National Park that, whilst not constituting part of the setting of the National Park, the Wolds escarpment forms an important visual backdrop to the extensive deeply rural views which characterise the southern vista from the southern fringe of the Park. The Secretary of State also agrees with the Director that the relationship between the landscape character areas of the Vale of Pickering and the Wolds and the southern dip slopes of the North York Moors is an important one where the lack of significant man made features and the linear character of the immediate and longer distance views are fundamental to the public enjoyment of the special qualities of the National Park. Despite the distance from the Park boundary, the Secretary of State agrees with the Director that the proposal would introduce a highly intrusive form of development which owing to its scale, vertical emphasis, the number of turbines, their elevated siting, movement and prominence on the horizon would seriously undermine these landscape features. Though there are no specifically identified special qualities of the National Park which comprise distant views towards the Wolds, the Secretary of State accepts the Director's view that the relationship between the various component parts of the wider landscape is such that the proposal would impact adversely upon the public enjoyment of the special qualities of the National Park within its south-eastern edge area. The Secretary of State attaches significant weight to the adverse impact on public enjoyment of the Park."

29. He also differed from the Inspector in relation to the assessment of the impact on St Andrew's Church and the weight that should be attached to that issue. He concluded as follows:

"24. The Secretary of state has carefully considered the Inspector's reasoning and conclusions at IR215-216 about the degree of harm to the setting of the Grade I listed church of St Andrew's in East Heslerton. He agrees that the development would influence the way the asset is interpreted and understood because partial views of moving blades on a significant part of the conspicuous crest of the escarpment on the main approach to, and from within the churchyard would be a distracting element in this quiet rural setting, which apart from a few 20th century dwellings to the west is unaffected by modern development. Though the view up to the crest is not a 'designed' view, he notes that it is prominent in the experience of visiting the church. He agrees that the harm caused to the setting would not be so severe as to amount to 'substantial harm' in the terms of paragraph 133 of the NPPF, but that the impact would be adverse. Given that the view up to the crest is prominent in the experience of visiting the church and that partial views of moving blades would be a distracting element in this rural setting, the Secretary of State considers that the Inspector's description of harm to the church's setting as 'minor' underplays the degree of harm. The Secretary of State considers that the development would conflict with LPS Policy SP18 due to the adverse impact on historical interests.

25. In view [of] his duty under s66 of the LBCA, the Secretary of State attaches considerable importance and weight to the desirability of preserving the setting of St Andrew's Church and to the finding that the impact on this would be adverse."

30. The Defendant's overall conclusions in relation to the appeal were set out as follows:

"Overall Conclusions

28. The Secretary of State has given careful consideration to the Inspector's overall balancing exercise at IR226-238. The Secretary of State agrees that the contribution the development would make to renewable energy production and CO2 savings attracts very significant weight. He also gives some weight to the economic benefits from construction and the benefit through the improvement and reinstatement of hedging.

29. However, he places significant weight on the high magnitude of change and the moderate adverse effect on the highly valued Wolds landscape within about 3 km of the development. He also places moderate weight on the distracting view of parts of turbines above the horizon when viewed from many parts of the Vale of Pickering. Those views extend to the south-eastern edge area of the North York moors National Park and he places significant weight on the harm to public enjoyment of the special qualities of the National Park within this part of it. Overall, he ascribes very significant weight to the sum of harm to the landscape, the corresponding conflict with LPS Policy SP13 and the harm to public enjoyment of the North York Moors National Park.

30. The Secretary of State places some weight on the intrusive impact that would be experienced by users of the byway open to all traffic that crosses the site and users of the Yorkshire Wolds Way where this passes the development.

31. The development would lead to an adverse impact on the setting of St Andrew's Church at East Heslerton and consequently would conflict with LPS Policy SP18. The Secretary of State attaches considerable importance and weight to the desirability of preserving the setting of St Andrew's Church and to the finding that the impact on this setting would be adverse.

32. The proposal conflicts with the development plan and, having had particular regard to paragraph 98 of the Framework, the Secretary of State considers that the sum of environmental impacts of the proposal are not and cannot be made acceptable."

The law

31. The public law principles involved in this challenge are not novel or controversial. The weight to be attached to material considerations once they have been properly identified and taken into account is a matter for the decision maker.
32. Submissions were made during the course of argument on the basis of observations in cases such as R (on the application of Akester) v Department for Environment [2010] EWHC 232 at paragraph 112 and No Adastral New Town Ltd v Suffolk Coastal District Council [2014] EWHC 223 at paragraph 138 that great or significant weight should be given to the consultation responses from statutory consultees like Natural England.
33. Their contribution was placed in context by Mr Lytton who provided extracts from the National Parks and Access to the Countryside Act 1949 and pointed out the specific functions and responsibilities of Natural England in relation to National Parks.
34. When probed in relation to the substance of this submission, a consensus emerged that what was being relied upon was not a legal principle or some consideration akin to, for instance, section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Rather, the root of these submissions was plainly that weight depends upon the context of the consultation and the context of the consultation would obviously include the status of the author of it.
35. If for instance the source of the consultation is a regulator commenting on an area for which they have regulatory responsibility or a public body commenting on an issue for which they have some relevant statutory responsibility, then as a matter of practical decision making, the decision maker will obviously be very likely to want to give those contributions to the decision significant weight. Whether or not this has occurred can be scrutinised through the reasons given and whether they are adequate to address the main points which were being raised by those consultees.
36. Turning to the question of the reasons, Mr Lytton QC who appeared on behalf of the Claimant placed some reliance on private law cases where emphasis had been given to the need for particular reasons when expert evidence was in play. An example of that kind of case is Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 where observations as to the importance of reasoning in relation to conclusions about expert evidence are provided at page 382B.
37. In my view, however, all of these submissions are in truth implicit within what is properly to be regarded now as the classical encapsulation of the principles applying to the duty to give reasons in planning cases, namely the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council & Anor v Porter No 2 [2004] 1 WLR 1953.
38. At paragraph 36 of that decision Lord Brown observed 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."

39. I turn in the light of these leading principles to consider the matters raised starting with the Claimant's case on the NYMNP and then turning to matters in relation to St Andrew's church.

NYMNP

40. The Claimant's attack on the decision in respect of this issue is threefold. It is submitted that in his decision the Defendant failed to have regard to material considerations, reached a conclusion which was irrational and failed to provide adequate reasons in relation to these conclusions.
41. In respect of the issues raised in relation to material considerations, there are a range of matters which are relied upon. Those include that there was a broad consensus from the Environmental Statement and the SEI, through the Golden's report and the Council's reason for refusal, on into the Statement of Common Ground and the landscape evidence at the inquiry and ending with the Inspector's report that there would not be significant effects on the NYMNP. It is submitted that that broad consensus of evidence in relation to the landscape effects on the NYMNP was disregarded by the Defendant.
42. It is further said that the Defendant failed to have regard to the national policy contained within "Overarching National Policy Statement for Energy" or EN-1, in particular in relation to what that document provides to guide development which is outside a National Park area.
43. The document provides as follows:

"Developments outside nationally designated areas which might affect them

5.9.12. The duty to have regard to the purposes of nationally designated areas also applies when considering applications for projects outside the boundaries of these areas which may have impacts within them. The aim should be to avoid compromising the purposes of designation and such projects should be designed sensitively given the various siting, operational, and other relevant constraints. This should include projects in England which may have impacts on National Scenic Areas in Scotland.

5.9.13. The fact that a proposed project will be visible from within a designated area should not in itself be a reason for refusing consent."

44. Further, it is suggested that the Secretary of State failed to take account of Natural England's response and, in relation to Mr France, failed to take account of his evidence to the inquiry that he did not rely upon any impact on setting. He only suggested that the scheme "could" impact on the NYMNP, that he had not undertaken a review of the SEI and his objection was "in principle".
45. I have no hesitation in rejecting the submission that the Secretary of State failed to have regard to these matters. In my view, it is clear that the Defendant had regard to the state of the evidence on the NYMNP issue from the terms of his decision itself.
46. When one reads the decision letter, which needs to be read as a whole, the section which addresses landscape and visual effects comprises a broad analysis of all of the areas which were under consideration in respect of this area of public inquiry. The decision letter reflects areas of agreement, as well as disagreement, with the conclusions of the Inspector. As such, therefore, it reflects the state of the evidence in respect, for instance, of ingredients where the Defendant accepted elements of the landscape and visual evidence that the Inspector had considered and agreed with.
47. Whilst it is true that the Defendant does not specifically mention policy EN-1 or the Natural England consultation response, there is in my view simply no evidence to support the contention that in this case the Defendant ignored those matters.
48. It needs to be borne in mind that as against the contribution from Natural England, as was pointed out by Mr Kolinsky who appears on behalf of the Defendant, the Defendant had before him representations from Mr France on behalf of another responsible organisation, indeed an adjoining planning authority, the NYMNPA. Having those two responses before him, it was clear that the Defendant had to make an assessment and reach a judgment as to which he preferred.
49. Turning to the contentions in relation to Mr France, whose views were clearly very influential in the ultimate decision that the Defendant reached, the points about his evidence at the inquiry are in my assessment ultimately hollow. He did not remove his objection. He was apparently unpersuaded by the arguments and conclusions contained within the SEI and retained his "in principle" opposition to the proposal for the reasons which were set out in the NYMNPA consultation response, which were drawn upon by the Defendant in reaching his conclusions.
50. Turning from the arguments in relation to failure to have regard to material considerations to the suggestion that the Defendant's decision was irrational, this argument relates again to a number of individual elements.
51. Once more, attention is drawn to the extent of the suggested broad consensus of evidence that there would be no significant impact on the NYMNP. Indeed, during the course of submissions it was suggested that that broad consensus relied upon by Mr Lytton was overwhelming. It also relies on policy EN-1 which focuses on the avoidance of "compromising the purposes of designation".
52. For the purpose of illustrating and understanding that submission, it is necessary to set out what the purposes of designation in this case was. Clearly there are broad purposes for designating a National Park contained in the Environment Act 1995 as follows and are two:

"Conserve and enhance the natural beauty, wildlife and cultural heritage of the Park...

And promote opportunities for the understanding and enjoyment of the special qualities of the Park by the Public."

53. In relation to those special qualities so far as the North York Moors National Park was concerned, they were set out in the management plan. It is not necessary for me to quote all of those special qualities, for there are many of them. For the purposes of this submission and my assessment of it, it is necessary just to quote four of those special qualities as follows:

"Great diversity of landscape; sudden dramatic contrasts associated with this.

Wide sweeps of open heather moorland; distinctive dales, valley and inland headlands.

A rich and diverse countryside for recreation; an extensive network of public paths and tracks.

Strong feeling of remoteness; a place for spiritual refreshment."

54. It is said on behalf of the Claimant, and indeed it was noted by the Defendant at paragraph 14 of the decision letter, that there are no special qualities related to distant views to the Wolds and therefore no special qualities which could properly engage the assessment of the purposes of designation and give rise to a refusal ground into any extent upon impacts upon the NYMNPA.
55. In my view, however, that entirely misses the point that the Defendant was making in the decision letter. His point was in my view clearly rooted both in the NYMNP purpose of promoting opportunities for public enjoyment of the Park and also the special qualities, including both visual qualities and the opportunity for public access, set out in the very broadly drawn special qualities which I have set out above.
56. Mr France's view on behalf of a body with responsibility for the NYMNP was a legitimate response to the issues in relation to the impact of the proposals from a visual perspective on the NYMNP and the Secretary of State's adoption of those matters was an equally legitimate response in reaching his decision.
57. Thus, I do not consider that there is any basis upon which it could be contended that the Defendant's decision in this case was irrational.
58. I turn then to the reasons challenge raised by the Claimant which relies on the need for specific reasons in relation to the rejection of the expert evidence, which I have set out above, from its various sources.
59. Further, it is submitted that given the weight that should be given to the consultation from Natural England, specific reasons were required in order to reject it.
60. Additionally, it is contended that the reasons were flawed in failing to explain how the policy at EN-1, set out above, had been applied.
61. In respect of that latter point, as I have explained above, in my view, the Defendant clearly reflected the requirements of that policy in the terms of his decision.
62. In relation to the contribution from Natural England, again as pointed out above, this was an important contribution, but the Defendant also had an important contribution made by the NYMNPA through Mr France which needed to be taken into account and which had indeed been tested at the inquiry by cross-examination.
63. In truth, paragraph 14 explains very clearly why the Secretary of State accepted the view of Mr France and accorded it greater weight in terms of the impact on the NYMNP than the other evidence which had been before the Inspector and accepted by the Inspector in reaching a different view.
64. It is significant to note that the facts underlying the judgment which was reached have been accepted by the Defendant in his decision. The extent to which the development would be viewed from the various significant viewpoints is accepted by the Defendant and adopted for the purposes of decision making. There was no difference in the facts which led to his decision or the appraisal of the extent of visibility.
65. What has happened in the light of the various arguments presented to him is that the Defendant has reached a different conclusion as to the appropriate weight to attach to the impact upon the NYMNP and he had ample material before him in order to reach that different conclusion as to the appropriate weight to be afforded to this issue.

St Andrew's Church

66. Here the Claimant contends that the Defendant failed to have regard to the structured methodology of the Environmental Statement and the SEI and additionally the Inspector's adoption of it in reaching his recommendation. That is a reference to the Inspector's conclusions at paragraph 232 where in a footnote to paragraph 239 attaching to the term minor, the Inspector cross referred to the methodology contained within the relevant chapter of the Environmental Statement.
67. It is submitted that the conclusions which have been reached by the Defendant in this case have disregarded that structured methodology.
68. During the course of his submissions, Mr Lytton accepted quite correctly that it was not incumbent upon the Defendant to undertake a re-scoring of the evaluation set out in the Environmental Statement in terms of the methodology deployed.
69. Rather, he contended that in both the Environmental Statement and the SEI and also in the conclusions reached by the Inspector, the harm to the historic asset had been appraised as minor and in the light of that, far more was needed both to justify the Defendant's conclusions and also to explain them.
70. In my view, at the outset it must be understood that the Environmental Statement is a vehicle for environmental information and a tool for decision making. The methodologies which these documents almost invariably contain are a helpful and transparent means of presenting the judgments in relation to the environmental effects once the environmental resources and the impacts upon them have been identified and evaluated. But it is important to bear in mind that the conclusions in the Environmental Statement are not the decision itself.
71. Firstly, any decision maker must evaluate whether or not he or she accepts judgments which have been reached in the Environmental Statement, applying the methodology. Secondly, having reached his or her own judgment in that respect, he or she must decide what weight to attach to that in the overall planning balance which leads to the decision as to whether or not planning permission should be granted.
72. Again, it is important to appreciate in this case that the Secretary of State accepted in its entirety the factual material pertaining both to the status and quality of the historic asset and also as to the nature of the impact upon its interests and the extent to which the development would impinge upon views of the asset and thereby impinge upon the asset's setting.
73. All of those factual issues set out in the Inspector's report in that regard were accepted. That is made clear from the Defendant's repetition, in effect, of paragraph 216 of the Inspector's report in paragraph 24 of the decision letter.
74. However, having accepted those factual matters, the Defendant did not accept that that represented a minor effect. He concluded that it was more than that. It was not incumbent upon him to say precisely where in the methodology, it fitted because to do so would amount to the re-scoring which is unnecessary in order to understand his decision. In any event, once he had concluded that the impact would be understated if assessed as minor it would inevitably give rise to greater harm on an asset which was accepted to be of high sensitivity.
75. He was not alone, perhaps, in that contention. It will be recalled that English Heritage had expressed their concern that the SEI did not fully reflect the harm which they considered would occur in the case of St Andrew's Church.
76. Thus, the rationality argument raised by Mr Lytton in relation to the assessment of St Andrew's church in my view simply does not get off the ground.
77. Turning to the question of reasoning, the Defendant has in my view clearly set out the basis for his conclusion, which was an assessment that the impact was greater than minor. He then had to give weight to that, bearing in mind the duty applying under section 66 of the 1990 Act. Bearing all of those matters in mind, he gave it considerable weight. It is in my view entirely clear from the decision the reasoning process which led to his conclusions in respect of this issue and also the role that this issue played in reaching his overall conclusions as to the development proposal.
78. For all of these reasons, the Claimant's case both in relation to the impact on the NYMNP and also St Andrew's Church is in my view not made out and this application must be dismissed.