QUEEN'S BENCH DIVISION
2 Redcliff Street
Bristol BS1 6GR
B e f o r e :
| The Queen (on the application of Peter Higham)
|- and -
|- and -
|(1) A J Venning
(2) Clean Earth Energy Wind Investments Ltd
WordWave International Limited
Trading as DTI
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Sancho Brett, Solicitor Advocate
(instructed by Cornwall Council Legal Services) for the Defendant
The First Interested Party did not attend and was not represented
John Litton QC (instructed by Foot Anstey LLP) for the Second Interested Party
Hearing dates: 30 June – 01 July 2015
Crown Copyright ©
Mr Justice Supperstone :
Grounds of challenge
i) Due to errors of law by the Council's officers Councillor Blakeley was not allowed to take part in the Committee meeting as a substitute and the application was not taken back to a further committee.
ii) English Heritage's advice on the application was reported in the Committee report of 8 December 2014 ("the report") in a misleading manner which materially understated their concerns.
iii) The Council relied upon the provision of electricity for the equivalent of "over 300 households" as the public benefits which outweighed harm to the setting of designated heritage assets including a Grade 1 listed building, without regard to material considerations.
iv) The Council failed to have regard to material considerations, namely the Area of Outstanding Natural Beauty ("AONB") Management Plan and the advice of Natural England that this should be considered. The Committee report of Natural England's advice was misleading in that it was edited to remove their reference to the Management Plan.
v) Overall, the report was selective, misleading and biased in favour of the application. There was a systematic failure to report concerns, including from statutory consultees, which the scheme was incapable of adequately addressing.
Ground 1 concerns the exclusion of Councillor Blakeley. Grounds 2-5 concern misreporting to the Committee. I shall consider each ground of challenge in turn.
(A) Exclusion of the Councillor
Ground 1: exclusion of Councillor Blakeley
"4. The UKIP councillor on the East Sub-Area Planning Committee, Stephanie McWilliam, who is the UKIP group leader, was in hospital and she asked me to attend, debate and vote as her substitute at the East Sub-Area Planning Committee on 8 December 2014.
5. On 5 December 2014 between 2pm and 3pm I telephoned Anita Searby, the relevant officer in the Council and Democracy Department, requesting that my substitution for the Planning East Sub-Area Committee be registered thus allowing my participation at the committee hearing to be held on 8 December 2014. Ms Searby assured me that would be arranged and the Committee would be advised.
6. I heard no more and therefore on Monday 8 December I made the long drive from Hayle to Liskeard arriving about 45 minutes before the 2pm Committee start. When I got there, I was told that no advice of my substitution consent had been received from Truro. Unsuccessful attempts were made up to 2.01pm by the local officers, including the local democracy officer Emma Coad, to obtain the required confirmation from Truro. I was then advised that I could attend, (sit in), but could not vote on any application."
"Your letter suggests that procedural requirements were not followed at the East Sub-Area Planning Committee but the Democratic Services Team have confirmed that Councillor Blakeley was not a member of the East Sub-Area Planning Committee and, although nominated by Councillor McWilliam to attend as her substitute, he was not on the list of approved substitutes and could not, therefore, attend or take part in this capacity. Whilst Councillor Blakeley may not have been made aware of this before making the drive to the Committee meeting, it was procedurally correct not to allow him to participate in the debate."
The Council Procedure Rules
"4. Appointment of substitute Members of Committees and Sub-Committees
(i) For any committee which has a mandatory training requirement (such as a committee exercising a planning function) a substitute may only be used where they have undertaken and completed the current approved course of training.
4.2 Allocation of substitutes
4.2.2 Where a Member of a committee is unable to attend a meeting, they should arrange for a substitute to attend from their Group, save where this is expressly excluded in this Constitution.
4.2.3 The list of substitute Members for the committee shall not exceed the number of seats on the committee allocated to that Group and in any event comprise a maximum of twelve Members. Where a Group has less than four seats allocated to it on the committee that Group may submit a list of not more than four Members. The substitute list shall take effect when received and signed by the Monitoring Officer. Written notification of amendments to any list shall be given from time to time to the Monitoring Officer.
4.2.5 The Democratic Services Officer nominated by the Democratic Services Manager to service a committee must be notified either by the member of the committee to be substituted, or the proposed substitute either orally or in writing of the substitution before the commencement of the meeting to which the substitution relates and the substitute must be present at the commencement of the meeting. If either of these requirements is not met, the substitute shall not be permitted to participate in the meeting.
4.2.7 It shall be the responsibility of the substitute member to satisfy themselves that they have a sufficient understanding of each item being determined at the meeting at which they are present by reference to the agenda papers, participation in the debate and such other information as may be relevant to the decisions to be made before exercising a vote in relation to each of those items."
Submissions of the parties and discussion on Ground 1
"Where a Member of a Committee is unable to attend a meeting he may arrange for a substitute to attend from his Party Group, drawn from the list of substitutes approved by the Council. The Democratic Services Officer nominated by the Democratic Services Manager to service a committee must be notified, normally by the Member of a committee to be substituted, orally or in writing of the substitution before the commencement of the meeting. If this requirement is not met, the substitute shall not be permitted to participate in the meeting."
"… The substitute list shall take effect when received and signed by the Monitoring Officer."
"23. As can be seen from the agenda, there was no named substitute for UKIP. To enable this an Appointment to Committee form would have needed to have been completed by UKIP (either Group Leader or Deputy Group Pleader in their absence) and be authorised by the Monitoring Officer or any officers delegated by him to complete this task…".
There is no evidence to the contrary.
(B) Misreporting to the Committee
General legal principles
"23. Planning officers' reports should be read in good faith, as a whole and not legalistically. A decision to grant planning permission will be unlawful if the planning officer's report to committee significantly misleads members about material matters and, thereafter, is left uncorrected at the meeting of the planning committee before the relevant decision is taken: see R (Zurich Assurance Ltd trading as Threadneedle Property Investments) v North Lincolnshire Council  EWHC 3708 (Admin) at :
'Each local planning authority delegates its planning functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. With regard to such reports:
(i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.
(ii) When challenged, such reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole. Consequently:
'[A]n application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken.' (Oxton Farms, Samuel Smith's Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106 106, per Judge LJ as he then was).
(iii) In construing reports, it has to be borne in mind that they are addressed to a 'knowledgeable readership', including council members 'who, by virtue of that membership, may be expected to have a substantial local and background knowledge' (R v Mendip District Council ex parte Fabre (2000) 80 P&CR 500, per Sullivan J as he then was). That background knowledge includes 'a working knowledge of the statutory test' for determination of a planning application (Oxton Farms, per Pill LJ).'
24. In R v Mendip District Council ex parte Fabre  80 P&CR 500 Sullivan J (as he then was) held at page 509:
'Whilst planning officers' reports should not be equated with inspectors' decision letters, it is well established that, in construing the latter, it has to be remembered that they are addressed to the parties who will be well aware of the issues that have been raised in the appeal. They are thus addressed to a knowledgeable readership and the adequacy of their reasoning must be considered against that background. That approach applies with particular force to a planning officer's report to a committee… it is not addressed to the world at large but to council members who, by virtue of that membership, may be expected to have substantial local and background knowledge…'
25. Similarly, Lady Hale in Morge v Hampshire County Council  1 WLR 268 at  said:
'Some may think this an unusual and even unsatisfactory situation, but it comes about because in this country planning decisions are taken by democratically elected councillors, responsible to, and sensitive to the concerns of, their local communities. As Lord Hoffmann put it in R (Alconbury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions  UK HL 23,  2 AC 295, para 69, 'In a democratic country, decisions about what the general interest requires are made by democratically elected bodies or persons accountable to them'. Democratically elected bodies go about their decision making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves. It is their job, and not the court's, to weigh the competing public and private interests involved.'
26. It must also be borne in mind that there is further opportunity for advice and debate at the relevant committee meeting: see R v Selby District Council ex parte Oxton Farms Court of Appeal 18 April 1997 unreported, per Pill LJ."
Ground 2: English Heritage Advice
Heritage Legislation and Policy
"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."
"131. In determining planning applications, local planning authorities should take account of:
- the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation;
132. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset's conservation. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification. Substantial harm to or loss of a grade II listed building, park or garden should be exceptional. Substantial harm to or loss of designated heritage assets of the highest significance, notably scheduled monuments, protected wreck sites, battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites should be wholly exceptional.
134. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use."
"28. It does not follow that if the harm to such heritage assets is found to be less than substantial, the balancing exercise referred to in policies HE 9.4 and HE 10.1 should ignore the over-arching statutory duty imposed by section 66(1), which properly understood… requires considerable weight to be given by decision makers to the desirability of preserving the setting of all listed buildings, including Grade II listed buildings. That general duty applies with particular force if harm would be caused to the setting of a Grade I listed building, a designated heritage asset of the highest significance. If the harm to the setting of a Grade I listed building would be less than substantial that will plainly lessen the strength of the presumption against the grant of planning permission (so that a grant of planning permission would not longer have to be 'wholly exceptional'), but it does not follow that the 'strong presumption' against the grant of planning permission has been entirely removed.
29. For these reasons, I agree with Lang J's conclusion that Parliament's intention in enacting section 66(1) was that decision makers should give 'considerable importance and weight' to the desirability of preserving the setting of listed buildings when carrying out the balancing exercise. I also agree with her conclusion that the inspector did not give considerable importance and weight to this factor when carrying out the balancing exercise in this decision. … It is true that the inspector set out the duty in para 17 of the decision letter, but at no stage in the decision letter did he expressly acknowledge the need, if he found that there would be harm to the setting of the many listed buildings, to give considerable weight to the desirability of preserving the setting of those buildings. This is a fatal flaw in the decision…"
The Factual Background
"There is a degree of harm to the setting of Lantreath Church caused by the proposed turbine; both in the context of immediate views of the church from higher ground to the East of the village, and in distant views from St. Veep Church. In the former, the church tower's visual primacy in the landscape would be challenged by the close proximity and rotating movement of the turbine in a rural landscape in which the church tower was clearly built to be the dominant man-made feature. In the latter, the view of Lantreath Church from St, Veep Church, a designed visual relationship, would suffer adverse effect from the proposed turbine drawing the eye, when Lantreath Church should be the distant focus of view as conceived.
The harm is not substantial, but Lantreath church is a heritage asset of the highest significance, and as NPPF  notes, the more important the asset, the greater the weight that should be given to its conservation. We leave it for your authority to weigh the harm that we have identified against the public benefits of the proposal (NPPF 134), but please be aware that our assertion that the harm is less than substantial does not equate to that harm being acceptable."
"81. Most of the designated heritage assets in the wider area are located at such a distance to minimise the impact of the proposed turbine, or else the contribution of setting to overall significance is less important than other factors. The landscape context of many of these buildings and monuments is such that they would be partly or wholly insulated from the effects of the proposed turbine by a combination of local blocking and the topography. However, the presence of a new, modern and visually intrusive vertical element in the landscape would impinge in some way on some of the heritage assets, and have a more pronounced impact on the church of St. Manark and St. Dunstan and Ethy House due to the introduction of a new visual element in a relatively sensitive historic rural environment. With this in mind, the overall impact of the proposed turbine can be assessed as negative/moderate, largely due to the introduction of a new visual element in a relatively sensitive historic rural environment.
82. English Heritage have commented on this application and they do not consider that the impact on the church would be substantial and therefore do not object to the proposal. The NPPF confirms that where a development proposal would lead to less than substantial harm to the significance of the designated heritage asset, this harm should be weighed against the public benefits of the proposal. This application is for a temporary development that would provide for renewable energy for the equivalent of over 300 households which would provide a valuable contribution to cutting greenhouse gas emissions which is a principle supported by the NPPF. It is therefore considered that the proposal is supported by the NPPF.
85. The application has been assessed against the potential impact on the historic environment including special regard as set out above and it is considered that the likely impact on the historic environment would not justify refusal of this application in this respect. It is therefore considered that on balance the proposal is acceptable in respect of the historic environment. In coming to this view regard has been had to section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990."
The parties' submissions and discussion on Ground 2
Ground 3: Energy Generation
"This is almost certainly hugely overstated (before considering the average decline in turbine efficiency which is routinely ignored). The claim to supply, on average, electricity to over 270 Cornish homes would then also reduce. It seems essential that the planning authorities can ensure that the balance they must arrive at between harm and benefits is not grossly distorted in favour of developers who have traditionally exaggerated the benefits and understated the widely varied damage caused by their pursuit of subsidised profit. Furthermore, the capacity of existing approved wind energy schemes already comfortably exceeds both county and national targets, so the miniscule trickle of costly, random energy from this development to the Grid is effectively valueless."
"TTAG identified that the Interested Party's Environmental Statement figure of 1,380 MWh pa required a capacity factor of 33%. This greatly exceeded the UK average of 27% and the South West average of 23.9% [TTAG para 14.8]. They said that a more realistic approach was to take the South West average leading to about 1,000 MWh pa (mathematically 1,046 MWh pa). Of course, in the light of this material, the totally excessive and implausible nature of the committee report's figure would have become apparent."
"While a specific target for the provision of renewable energy in Cornwall has not been set for future years, the broad thrust of policy and in both national and local planning policy provides a "direction of travel" to secure, wherever appropriate and practical, opportunities for additional renewable energy developments" (para 29).
Ground 4: Natural England and the Area of Outstanding Natural Beauty Management Plan
Having reviewed the application Natural England does not wish to comment on this development proposal.
The development however, relates to the Cornwall AONB. We therefore advise you to seek the advice of the AONB Unit. Their knowledge of the location and wider landscape setting of the development should help to confirm whether or not it would impact significantly on the purposes of the designation. They will also be able to advise whether the development accords with the aims and policies set out in the AONB management plan."
"In respect of protected landscape, Natural England does not wish to comment on this development proposal. The development however, relates to the Cornwall AONB. We therefore advise you to seek the advice of the AONB Unit."
The reference to the management plan in the advice from Natural England was omitted.
"… I confirm that a non-response from the Unit does not automatically mean that we have no objection to a proposal. Principally this is down to our available resources and put simply we do not have the ability to respond to all of the cases that we are consulted upon."
The Legislative and Policy Framework
Natural Environment and Rural Communities Act 2006
Countryside and Rights of Way Act 2000
"(1) In exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty, a relevant authority shall have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty."
"(1) Every conservation board shall, within two years after the date on which they are established, prepare and publish a plan which formulates their policy for the management of their area of outstanding natural beauty and for the carrying out of their functions in relation to it."
Caradon Local Plan First Alteration, 2007 (Saved Policies):
"In considering proposals for development near the designated Areas of Outstanding Natural Beauty, or the Heritage Coast, attention will be given to the impact it could have on the character and appreciation of such areas. Planning permission will not be granted for development which:
(i) will be unduly prominent from view points within such areas;
(ii) will adversely affect the view towards such areas from roads, footpaths, bridleways and other public places;
The AONB Management Plan 2011-2016
"Ensure that any necessary development in or within the setting of the AONB is high quality sustainable development that:
- is appropriately located, of an appropriate scale and addresses landscape sensitivity and capacity
- is compatible with the distinctive character of the location …
- promotes the conservation of the historic environment as a whole and in particular those designated heritage assets and their setting; …
Particular care will be taken to ensure that no development is permitted in or outside the AONB which would damage its natural beauty, character and special qualities or otherwise prejudice the achievement of the AONB purposes."
Planning Protocol Between the Cornwall AONB, Tamar Valley AONB and the Council
"This protocol sets out the process for effective consultation between Cornwall Council and the Cornwall AONB and Tamar Valley AONB Partnerships to consider planning matters affecting the AONB in Cornwall."
"Take account of AONB management policies and guidance and where appropriate liaise with the AONB Unit/Team on significant planning matters regarding the AONB. Sections 89 and 90 of the Countryside and Rights of Way Act 2000 … created a statutory responsibility for local authorities to produce AONB Management Plans, and Section 85 of the Act sets down a requirement that the statutory purposes of the AONB to conserve and enhance the natural beauty of the landscape be taken into account when coming to decisions or carrying out their activities relating to or affecting land within the AONB. The Local Planning Authority therefore will, in the context of these statutory responsibilities, ensure emerging planning policies and development management decisions conserve and enhance the Cornwall and Tamar Valley AONB."
The parties submissions and discussion on Ground 4
"This proposal is located outside of the AONB. While it will be visible from some locations within the AONB, it will have a minimal impact on the AONB as a whole. Furthermore, it is located in an area compromised by other agricultural development. This development will have a minimal impact [on] the landscape character of the area. Therefore this proposal is in line with the AONB current guidance on climate change."
"… The majority of the AONB, extending to the south west, west, south and south east is excluded from the ZTVs and would not be influenced by the proposed development.
Within the AONB, it will only be from selected open and elevated locations that the proposed wind turbine has the potential to be perceived. … The proposed wind turbine will be barely perceived as a very minor single vertical element in the wider landscape.
Overall, although the proposed wind turbine will be perceived from the fringes of the AONB and from selected open and elevated locations, it will not dominate the character or special qualities of the AONB. It will not influence the 'special qualities' of the South Coast – Eastern (Par Sands to Looe) section of the AONB…
For the majority of the AONB within the study area, the magnitude of the impact will be no change, the significance of effect will be neutral.
At worst, from selected open and elevated locations in close proximity to the proposed development, away from the sensitive coastal fringes, the magnitude of impact will be low, the significance of effect will be moderate-minor."
The LVIA included photomontages of the development from the boundary of the AONB.
"A full and detailed debate ensued, the main points of which were noted as follows:-
(i) it was commented that the landscape in this area was unspoilt and that there were no visible manmade structures, it was considered that the vertical structure would be particularly noticeable from the Area of Outstanding Natural Beauty…"
Ground 5: Overall, the report was selective, misleading and biased in favour of the application.