England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Cardiff Civil Justice Centre 2 Park Street Cardiff CF10 1ET
		19/02/2015

MR JUSTICE GILBART:

1. This is an application by the claimant to quash a grant of planning permission made by the defendant Carmarthenshire County Council to the interested party Mr G Morris on 19th June 2014. Permission to apply for judicial review was given by HHJ Jarman QC on 5th November 2014 on all grounds. Judge Jarman QC also ordered that, as this is an Aarhus convention claim, the cost limits set out at CPR PD 45 apply.
2. The proposed wind turbine would have three blades and would have a maximum height of 45 metres, with a height of 30 metres from ground level to its hub, and with blades 30 metres in diameter. It would be coloured off white so as to reduce its impact when seen against the sky. There would be a small control house, and it was proposed that the turbine would operate for 25 years.
3. The site lies within the designated Carmarthen Bay Special Landscape Area. It lies close to the estuary of the River Taf. The site lies on the upper slopes of the northern and eastern sides of that estuary. At a point roughly WSW of the application site the river turns from running south west to running south east, as it passes the small estuarine town of Laugharne. Immediately north of Laugharne, and due west of the proposed wind turbine, there lies on the shores of the estuary premises of some considerable significance, namely the boathouse and writing shed occupied by the well known poet and author Dylan Thomas, close to a walk alongside the estuary. This description was given by the planning officer in his report to the committee (bundle p 161);

"In respect of cultural heritage, as noted above the proposal is across the Taf estuary from Laugharne and in particular directly opposite Dylan Thomas' boathouse and writing shed, both of which are Listed Buildings. The view is also said to have inspired works by Augustus John and Turner and the novelist Richard Hughes. In respect of Dylan Thomas, the boathouse and writing shed are major attractions within the County and have cultural importance internationally. Whilst the proposal is some 1.97 kilometres from the boathouse, it is directly across the estuary and there is a clear unimpeded line of sight. It is noted that the site of the proposal is clearly seen from Dylan Thomas' desk in the writing shed. The tranquil serenity of the mouth of the estuary is said to have inspired Dylan Thomas' work, and therefore the view is considered to be of international and cultural importance."

4. I shall refer to some other aspects of the local environment presently. A substantial document was submitted with the planning application, namely a Landscape Visual Impact Assessment ("LVIA") by a firm of Landscape Consultants on behalf of the applicants. It set out the assessment of the area as assessed by the applicant's advisors, and the degree of impact. There also accompanied the Planning Application a request for a screening opinion pursuant to regulation 5 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. I shall turn to their effect below. It contended that the proposed turbine installation would not have a significant effect on surrounding ecology, landscape or heritage assets. It stated that the proposed location was a sufficient distance away from any residential properties to ensure that there would be no impact on surrounding residential amenities. In the case of the effect on the listed boathouse connected with Dylan Thomas, it said the following

"The boathouse is two storeys in height of early C19 origin. It was inhabited by Dylan Thomas from 1949 until 1953. Viewpoint 2 of the submitted photo montage is considered the perceived impact of the proposed wind turbine on the setting of this listed structure. Whilst the turbine would be clearly visible across the estuary it would be at a distance of nearly 2 kilometres and is therefore not considered to overbear. As such the perceived magnitude of impact is considered to be moderate – low therefore the benefits of the scheme should be considered to outweigh the perceived negative effects."

5. The landscape consultants had very properly supplied copies of photographs of the existing views and then photomontages derived from those photographs. The photomontage generated in respect of the view from the footpath immediately next to Dylan Thomas' boathouse shows that the top of the wind turbine and its blades would be clearly visible. If the photomontage has been correctly drawn (and no one doubts its accuracy) it shows that while the base of the wind turbine would be concealed by trees, the bulk of the turbine is shown as being visible. The upper part of the turbine, including the hub and the blades, is shown as being above the horizon, being seen against the sky in views from the West across the estuary.
6. The LVIA submitted set out the analysis by landscape architects of the effects of the proposal. It is a very thorough document. It is necessary to set out some passages from its conclusions;

"8.5 The proposed development site is within the locally recognised Carmarthen Bay Coastal Area Special Landscape Area. There are Landscapes of Special Historic Interest immediately to the West and South and extending along the dramatic estuaries to the East, South and West. There is a Registered Park Garden within Laugharne which is also recognised as a Conservation Area and a popular tourist attraction. The centres of scattered villages are recognised a Conservation Areas and the National Trust owns parts or the estuary fringes. There are also scattered Ancient Woodlands throughout the study area, although focussed within the undulating agricultural landscape broadly to the North of the study area.

8.6 Mitigation areas during the design stage ensure that the proposed development will have minimal direct effects on the landscape elements and no landscape vegetation such as hedgerows or trees will be lost. The proposed developments final location minimises the wider impacts on landscape character, landscape relevant designations and surrounding visual amenity receptors. However, the proposed development, due to its scale, will have effects on both landscape character and visual amenity receptors and their views during construction, operation and decommissioning.

8.7 The enclosure provided by the surrounding undulating landform and dense vegetation will ensure that the proposed development will have limited wider effects during construction and decommissioning. Crane activity will be perceived from close proximity and is likely to draw attention to the proposed development and be visible for selected visual amenity receptors. The cranes will however be present for a very short period of time and will also be temporary.

8.8 During the operational period, the proposed wind turbine, due to its scale, will be visible and potentially perceived over approximately one third of the study area. However the majority of effects on landscape character, landscape relevant designations and visual amenity receptors and their views will be neutral largely because of the enclosure provided by the surrounding well-vegetated gently undulating landform of valleys and ridges and dense screening vegetation focussed around residential properties, settlements and transport corridors.

8.9 With regard to the landscape character areas, the proposed development will have limited effects on the characteristics of the wider landscapes or the integrity of the landscape relevant designation. The proposed development will be only selectively visible as a single vertical element, largely only in close proximity. Even if perceived, the influence of the proposed development will very rapidly decrease with distance and will largely not influence directly the wider landscape character. There will be however, at worse, moderate effects on landscape character areas, particularly those areas surrounding proposed development, in close proximity.

8.10 Exposed views of the proposed turbine from visual amenity receptors will be limited and will be generally only from very few receptors in relatively close proximity, from selected high points or where there are "gaps" in the enclosing vegetation. The proposed development will create, at worst, moderate visual effects, for very few receptors. Relatively few visual receptors will have close range views of the proposed turbine, the majority of views will be obscured by localised screening from vegetation, subtle variations in land form and adjacent development.

8.11 The proposed wind turbine, when considered "in addition" to other operational, consented and "in planning" wind energy schemes within the study area, will largely be conceived as a single vertical element. A combination of distance as well as the undulating well vegetated landscape, already influenced by the rows of pylons that cross the landscape to the North, will ensure there will be limited additional cumulative effects as a result of the proposed wind turbine. The addition of the proposed wind turbine will not further create a "wind-farm" landscape or create views dominated by wind turbines. There will however be the potential for limited sequential cumulative effects for travellers on the transport network due to the dense linier enclosure surrounding the routes which will help to restrict views of the wind energy schemes in the study area.

8.12 In summary, the proposed wind turbine will add a vertical element to the existing landscape, already influenced by vertical elements including the rows of pylons that cross the river to the North and scattered operational, consented and in planning wind energy schemes including the operational wind farm at Parc Cynog.

8.13 The proposed wind turbine will not affect the majority of the landscape character areas, landscape relevant designations or visual amenity receptors. The proposed wind turbine will at worst, have moderate (effects) on landscape character areas, moderate effects on relevant landscape designations and moderate effects on few close range visual amenity receptors."

7. It follows from the above that it was accepted that there would be some effect on the area in visual and landscape terms, including some effects on that part of the area containing the listed building relating to Dylan Thomas and its considerable cultural connections. It is instructive to consider the professional advice which the Planning Officer gave to the Planning Committee in his report. He said this :

"The site is particularly prominent given the fact that it is across the Taf from Dylan Thomas' boathouse attracting thousands of visitors per year. It would also be prominently located on elevated land when viewed from the coastal plateau, however it would be seen in the context of the rolling countryside."

8. At a later stage in his report he considered various representations that had been received, and in the course of so doing set out his assessment of matters with regard to the quality of the environment and the effects of the development upon it. At page 160 he said this.

"The main areas of concern from third parties is Landscape and Visual Impact given its location at the mouth of the Taf estuary which is considered to be an iconic view given the presence of Dylan Thomas boathouse and writing shed directly opposite……The visual impact of the proposal has to be carefully considered and in each case the individual merits have to be taken in to account. The applicants have submitted a landscape and visual impact assessment along with images showing a proposal in context….

Whilst the proposed turbine is relatively small compared to the commercial wind farms, the location of the proposal is within a prominent landscape which is hugely conspicuous from both the surrounding countryside and longer distance views given the township of Laugharne directly opposite and the presence of the Wales Coast Path which follows the shoreline".

9. He then referred to the assessment of landscape and visual impact by the County Landscape Officer. That assessment included the following:

"In terms of landscape character however the magnitude of effect in relation to the sensitivity of the receiving landscape is such that there would be material harm to landscape character and therefore the proposal is against the objectors of the policies……

Impacts to visual amenities from areas accessible to the public

It is considered that the proposed scheme will form new man made moving elements within views from publicly accessible areas. The location and scale of the turbine model and its relation to the topography and proximity to roads and footpaths, and other areas accessible to the public, is such that the proposal is considered to be of a significance to be against the relevant objectives of policy UT6." (sic)

10. The Officer went on:

"On the basis of the above advice, it is considered that the site is in a sensitive area, being within the Llanybry Coastal Hills LANDMAP area which is of high importance, and also classified as an outstanding historical landscape and a high importance cultural landscape. Therefore the concerns of third parties are material for the consideration of the proposal.

The area is not within a designated AONB so the same policy considerations do not apply. The site is however within a designated Special Landscape Area and it is noted that there is an Article 4 Direction withdrawing permitted development rights given the sensitivity of the landscape. The site is therefore sensitive albeit not an AONB. The policy on SLA is such that development that will harm the character and appearance will not be permitted. The magnitude of impact therefore has to be carefully considered and weighed in the balance of considerations"

11. He then included the commentary on cultural heritage which I have set out above. He went on

"The proposal has been assessed in respect of the historical environment".

12. He then went on to consider the effect on Scheduled Ancient Monuments and concluded that the effect would be no more than minor adverse and therefore not significant. However he then went on:

"The council's conservation section has commented in respect of the impact on listed buildings, and opines that Section 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 are relevant given the potential impact on listed buildings and conservation areas. It is noted that Dylan's Walk is an important feature within the Laugharne conservation area and contains the Listed Boathouse and Writing Shed, along with the Castle which is also a Listed Building, therefore any proposal which adversely impacts this feature would be detrimental. The Conservation Officer concludes that the proposal would be a

"discordant element and an alien intrusion within an historic landscape of exceptional sensitivity and therefore objects to this proposal. It is therefore considered that the proposal would have a detrimental impact on the historic environment".

13. He also referred to the fact that tourism within the county was of importance and in the centenary of Dylan Thomas' birth, Laugharne was the focus of intense promotion and publicity. He noted that the proposed turbine would not have a direct impact on Laugharne itself, but would be sited within "the vista from Dylan's Walk and may affect visitors' perceptions of the attraction." In his conclusions, he said the following:

"The proposal however needs to be assessed within the context of the open countryside and the landscape within which it is proposed. The site at the mouth of the Taf estuary is particularly sensitive both in its relatively unspoilt landscape quality and its association with Dylan Thomas, being said to have been the inspiration for some of his works. Within the rolling landscape, the mouth of the estuary forms a highly prominent and distinctive feature locally which is emphasised by the presence of Dylan's Walk at Laugharne which has unimpeded views, and the Wales Coastal Path which offer public accessibility from which the proposal would introduce a significant moving structure.

Whilst it is acknowledged that the turbine would not have a significant direct impact on the site or the landform itself in terns of physical harm, the degree of harm to the wider landscape in terms of changing its character is significant material consideration.

The primary harm however would be the significant visual impact which combined with the impact on built and cultural heritage challenges the above policy. On balance, the visual harm from the introduction of a turbine at this location is considered to far outweigh any benefit in terms of substantial electricity generation.

It is therefore concluded that the proposed turbine is likely to have an unacceptable adverse impact on the character and appearance of the open countryside, therefore the proposal is not in accordance with the above policy."

14. A screening opinion was given on 20th January 2014. It reads as follows:

Screening exercise relating to the requirement of EIA for a Single Wind Turbine at Mwche Farm

Wind turbines are not within Schedule 1 of the regulations, so it is up to the discretion of the Local Planning Authority as to whether EIA is required.

In respect of wind turbines, Schedule 2 Category 3 (1) of the EIA Regulations 1999 apply. This states that an EIA may be required when more than two turbines are proposed or whether hub height exceeds 15 metres.

In this case one turbine is proposed with a tip height of 44.5 metres. Whilst within a special landscape area which is a local designation, the site is outside the estuary SSSI and SAC therefore the impact is considered to be no more than local significance.

On the basis of the above it is not considered that the requirement of an EIA is applicable".

15. A substantial number of objections were received to the application, together with some representations in support. The objections included those from the National Trust, and as indicated already the relevant Council Officers dealing with conservation and landscape were also opposed to the proposal. I have already referred to some contents of the Planning Officers report. It is right that I should also note that during the course of his report in his conclusions, he contended that there had been a screening opinion, and that

"given the scale and nature of the proposal, the development is considered to be of no more than local importance and will not give rise to any adverse environmental impact upon the surrounding area. On this basis, the requirements of an environmental impact assessment are not considered to be applicable to the application. In arriving at this decision the authority have taken into account the selection criteria as set out in Schedule 3 of the above Regulations.

16. The members of the Planning Committee considered the application. As part of their consideration there was a site visit to the application site, but it did not include a visit to the viewpoint from the boathouse. As the photographs show the boathouse and its walk are largely obscured from the application site by trees, which however do not obscure views of the upper parts of the turbine, were it to be built. While there are some disputes about what occurred on the site visit, in my judgment they have no effect upon the issues which I must determine. The Committee considered the application at its meeting on 3rd June 2014. It was addressed by, among others Councillor D B Davies, who was the local member and had stood down from the Committee for the purposes of considering the application after declaring a personal interest. He made representations on the application, including a representation that the hill and application site were obscured from the boathouse by woodland. It is quite plain from looking at the photographs that his representation could carry no weight. The Committee could not have been misled, because the photomontage demonstrating the visual impact was exhibited at the Committee Meeting. After receiving the officer's adverse report, and hearing representations, the Committee resolved the following:

"4.1 That Planning Application W/29387 be approved contrary to the recommendation of the Head of Planning as the Committee did not concur with the reasons for refusal as detailed within the report particularly as any unacceptable impact has not been proven, and it felt that the recommendation was inconsistent with other similar applications.

4.2 That the Head of Planning be requested to submit appropriate reasons for approval to a future meeting of the Committee for its endorsement.

4.3 That the Head of Planning be granted delegated authority to include appropriate conditions on the planning permission."

17. The Head of Planning then drafted the conditions to go with the full planning permission and on the planning committee meeting at 19 June 2014 it was resolved that

"Resolved to accept the conditions detailed within the report of the Head of Planning in respect of the following planning application which was granted contrary to the Head of Planning's recommendation that the Planning Committee held on 3 June 2014: (…..)

W/29387 Installation of 1 WTN 250kw wind turbine with an overall height of 45 metres including associated temporary infrastructure at land Mwche Farm Llansteffan, Carmarthen, SA33 5HH….. The Committee was advised that during the course of the meeting notification had been received form the Welsh Governments Planning division stating that a request to call in the Committee's decision to approve the above application has been turned down"

18. The full planning permission includes 16 conditions with reasons given for the imposition of the conditions. It also includes "summary reasons for approval" which read as follows:

"In accordance with Article 24 of the Town and Country Planning (Development Management Procedure) (Wales) Order 2012, the council hereby certify that the proposal as hereby approved conforms with the relevant policies that the Development Plan (comprising the Carmarthenshire Unitary Development Plan (UDP) Adopted July 2006) and material considerations do not indicate otherwise. The policies which refer are as follows:

The proposal complies with Policy UT5 of the adopted UDP in that the proposal will not significantly harm the local environment, sites of nature conservation, historical or archaeological interest, species of ecological value:

The proposal complies with Policy UT6 of the adopted UDP in that the proposal will not significantly harm the local environment, sites of nature conservation, historical or archaeological interests, species of ecological value:

The proposal complies with Policies GDC3 and CUDP14 of the adopted UDP by virtue of its compliance with policies UT5 and UT6;

The proposal complies with policy EN5 of the adopted UDP in that it would not cause any demonstrable harm to protected species or their habitats as protected by legislation."

19. Against that background I turn to the grounds of the application. Grounds 1-4 were pursued at the hearing before me.

Ground 1

20. It is contended that the inclusion in the Screening Opinion that environmental impact assessment was not required was irrational, inadequately reasoned, and in breach of schedule 3 of the relevant regulations in its failure to acknowledge the cultural and historic significance of the landscape. Miss Graham Paul contends that

a. It is common ground that the development fell within Schedule 2 of the EIA Regulations. That being so it was for the local planning authority to determine whether or not the project would be likely to have significant effects. (Regulation 2(1)).

b. Schedule 3 of the Regulation sets out the selection criteria for Screening Schedule to Development. Paragraph 2 of Schedule 3 (location of development) provides that the environmental sensitivity of geographical areas likely to be affected by development must be considered, having regard in particular to "landscapes of historical, cultural or archaeological significance."

c. The potential significant effects of development must be considered in relation to the criteria set out and having, in particular, regard to the extent of the impact, the magnitude and complexity of the impact, the probability of the impact and the duration, frequency, and reversibility of the impact.

d. While there is no statutory duty in Wales to give reasons for a negative Screening Opinion there is a European duty to do so. In any event if reasons are given they can be examined. The reasons for a screening decision must demonstrate that the issues have been understood and considered, and provide sufficient information to enable interested parties to know the basis of the decision that EIA is not required to enable them to take steps to protect their rights under EU law (R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157). The opinion need not be elaborate.

e. If the reasoning in a Screening Opinion is inadequate, the appropriate remedy is to quash the Planning Permission without the need for the claimant to demonstrate more – see Moore-Bick LJ in Bateman at paragraph 31.

f. The decision maker was required to consider whether the landscape was of historical or cultural significance, and in doing so apply the correct test and take into account the matters he is obliged to take into account and give adequate reasons.

g. It is impossible to ascertain here from the stated reasons whether the Officer has correctly applied the test for addressing significant environmental effects and he has failed to explain why the development will not have such effect. There is no acknowledgement in the Screening Opinion or in the Officer's report in relation to that screening that the particular landscape is of "international cultural importance." He appears to have limited consideration of "environmental effects" to those associated with nationally designated sites and the locally designated SLA, and ignored the environmental effects on the views across the estuary from the boathouse and writing shed, which is a fundamental omission and in breach of Schedule 3 of the Regulations.

h. In a witness statement, served after the grant of permission in these proceedings by HHJ Jarman QC, the Officer states that consideration of a potential impact of the proposal upon the cultural significance of the surrounding area was deemed to be insignificant, and therefore did not require express reference. That being so, cultural significance was a matter which should have been taken into account in the screening process, and the belated attempt to do so cannot vindicate the unlawful Screening Opinion.

21. Mr Ground contends that

a. Screening is only an initial assessment where not too high a burden should be put on Planning Authorities, that the judgments made on significant effects can only be challenged if they are unreasonable in a Wednesbury sense, and that a Screening Opinion need only set out the essence of the reasoning. He refers to the Bateman authority already referred to, to Zeb v Birmingham District Council [2010] Env LR 30, R (Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869,and R(Evans) v Secretary of State for Communities and Local Government & Ors [2013] EWCA Civ 114.

b. It was not incumbent on the Council to set out all the considerations it had taken into account. It was enough to set out the essence of its reasoning – see R (Wye Valley Action Association Ltd) v Herefordshire Council [2011] Env LR 20.

c. If there are any doubts about the Screening Opinion it is permissible to look at the Officers report – see Carnwath LJ in R (Berky) v Newport BC [2012] Env LR 35.

d. The council was entitled to rely on the guidance in Wales Office Circular 11/99 at paragraph 33.

e. The Screening Opinion was decided on the basis of the correct legal test. Planning Officers report made it plain that "the development…will not give rise to any adverse environmental impact." It is clear that the selection criteria in Schedule 3 had been taken into account.

22. The test of whether a Schedule 2 development amounts to EIA development is if it

" is likely to have significant effects on the environment by virtue of factors such as its nature, size and location."

23. It was common ground between Counsel that the Welsh Office circular guidance was not determinative. It was also common ground between Counsel, and rightly so, that if development would be likely to have a significant effect on the environment, then it was Schedule 2 development. A significant effect on local area can count as a significant effect for the purposes of the Regulation. It is quite clear that the question of whether or not the area affected is a small one or of local importance is a matter that can be taken into account in determining whether or not an impact is significant. But that does not mean that a significant effect on the local area is not a significant effect within the purposes of the Regulation. Nor does it mean that if the author of the Opinion has decided that the effects on the environment would be significant, that s/he can then treat them as insignificant because they would be felt within a local area. With that in mind, I turn to the words of the Screening Opinion itself. It says

"Whilst within a Special Landscape Area which is a local designation, the site is outside the estuary SSSI and SAC therefore the impact is considered to be of no more than local significance."

In my judgment that plainly implies that the effects are of significance, albeit locally. In my judgment in its approach to this matter the Planning Officer has conflated the question of whether the effects would be felt locally with the question of whether the effects would significant. As written, he has accepted that the effects would be significant. As suggested by the Court of Appeal in Berky one can look at the Planning Officers report. It is true that the words appear on (165) that

"In accordance with the requirements of the ….Regulations, the application has been screened to establish whether an Environmental Impact is required. Given the scale and nature of the proposal, the development is considered to be of no more than local importance and will not give rise to any adverse environmental impacts upon the surrounding area. On this basis, the requirements of an Environmental Impact Assessment are not considered to be applicable to this application. In arriving at this decision the authority has taken into account the selection criteria as set out in Schedule 3 of the above Regulations."

However if one reads what the Planning Officer said in the whole of the report it is quite plain that, far from the development "not giv(ing) rise to any adverse environmental impacts upon the surrounding area," the Officer actually considered, and gave ample reasons why he did so, that there would be adverse environmental impacts on the surrounding area. The fact that the effects would be felt locally does not mean under the Regulations that therefore they are not capable of being significant for the purposes of assessing whether a Screening Opinion is required. In this particular case one notes also that it was the officer's opinion that this development would have adverse effects on the historical environment including Listed Buildings, and would have an effect on buildings which are regarded as being national and international cultural importance.

24. There is at best, some considerable confusion in the thinking of the Officer. It is not possible to read his words that "it will not give rise to any adverse environmental impact upon the surrounding area" in the context of his report which had taken great care to set out all of those impacts. Further, I note that the applicant's own LVIA had noted that there would be impacts, albeit described by its authors as "moderate – low." While it is true that in that LVIA it was stated that

"the perceived magnitude of impact is considered to be moderate - low and therefore the benefits of the scheme should be considered to outweigh any perceived negative effect"

the question of benefits is not relevant to the question of whether there are any environmental effects to be assessed. Further, the existence of benefits cannot negate any duties that exists in any event under Section 66 or 72 of the Planning (Listed Building and Conservation Areas Act) 1990.

25. The other matter of concern to me so far as the Screening Opinion is concerned, is that despite the very obvious importance in any assessment of the environmental effects of this proposal of the effect upon the listed building of the Dylan Thomas boathouse and writing shed, there is no indication in the Opinion that those matters have been addressed. That is perhaps surprising given the fact that in his report to Committee the Officer considered that they were of considerable importance not merely in a local but in a wider context.
26. I therefore consider that the reasoning of the Screening Opinion is inadequate. I also consider that the Screening Opinion has failed to address the question properly of the impact which had to be considered. I am in no sense suggesting that it required a lengthy Screening Opinion. It could still have been a brief Screening Opinion, but it had to address the issues properly.

Ground 2

27. As to Ground 2 it is suggested that the Planning Committee should not have taken into account the assertions by Councillor Davies about what could or could not have been seen from the application site. It is said that they placed too much weight upon it, and especially so given that the fact that the members had not visited the site.
28. While I am quite prepared to accept that it may have been thought much wiser for the members to have visited the viewpoint across the estuary as well, I do not consider that this ground is arguable. The photomontage of the suggested visual impact was displayed during the meeting, and these were locally elected members who were entitled to form their own views about impact. While I regard what Councillor Davies said as illogical and not capable of being rationally supported, this falls a long way short of being a matter which could possibly undermine the decision of the Committee. This ground fails.

Ground 3

29. The next ground alleges a failure to apply the correct test in assessing visual harm. Miss Graham Paul correctly reminded the court of the terms of Section 70(2) of the Town and County Planning Act 1990 and Section 38(6) of the Planning and Compulsory Purchase Act 2004 on the status of the development plans. She contended that the way in which the Committee resolved this matter on 3 June 2014 did not reflect the terms of policy UT5 and UT6. It is therefore necessary to consider the terms of those policies. Policy UT5 reads

"Renewable Energy

It is the policy of Carmarthenshire County Council that proposals which develop, generate or capture energy from naturally sustainable sources or which minimise energy requirements will be permitted provided that:

Proposals either individually or cumulatively would not cause demonstrative harm by virtue of having significant adverse impact on the quality of the local environment, on sites of … historical…importance, … areas designated for their landscape value…"

30. Policy UT6 states

UT6 Wind Energy

It is the policy of Carmarthenshire County Council that proposals for wind turbines, wind farms or groups of wind turbines will be permitted providing that the following criteria are met in full:

i. Proposals either individually or cumulatively would not cause demonstrative harm (it then continues in the same terms as UT5)

ii. The siting, design, layout and materials used should be sympathetic to the characteristics of the landform contours and existing features of the landscape;

(iii)- (vii) ……………………………………………."

31. In the case of UT5 and UT6 the Planning Officer had recommended to the Committee in both cases that

"The proposal would have an unacceptable detrimental impact on the local environment as follows:

The proposal would have an unacceptable landscape and visual impact on the mouth of the Taf estuary

The proposal would have an unacceptable visual impact on the historical environment

The proposal would have an unacceptable visual impact on the cultural environment

The proposal would be inappropriate skyline development within a sensitive landscape."

The Planning Officer said that the proposal breached both policies by reason of those effects.

32. Miss Graham Paul contended that the resolution of the Committee and its terms on 3 June 2014 have not grappled with the terms of the policy. The actual resolution was

"The Committee did not concur with the reason for refusal as detailed within the report particularly as any unacceptable impact had not been proven……"

33. Mr Ground referred to the terms of the application on 3rd June 2014 whereby the Council did not concur with the reasons for refusal as detailed within the report "particularly as any unacceptable impact had not been proven." He says that the policy required the Committee to consider if there was any "demonstrable harm" and that is exactly what had been considered in the resolution. He referred also to the summary reasons for approval given at the conclusion of the decision notice.
34. While I have some sympathy with the claimant's case in this, it seems to me that it cannot survive the simple point taken by Mr Ground. The policy required the determination of whether there was demonstrable harm, and that is exactly what the Committee considered. This ground therefore fails.

Ground 4

35. Ground 4 contends that the Committee had to give some reason for departing from the opinion of the Planning Officer and had to give adequate reasons for the grant of permission. It is also contended that the granted permission was unreasonable.
36. Mr Ground contends that this is simply an attempt to persuade the court to exercise its own planning judgment in substitution for the judgment of the Planning Committee.
37. In my judgment this ground is a classic case of a claimant seeking to ask the court to say that the elected members formed a view on the merits of the Planning Application which was different from that of the Planning Officer and different from that which the court might have found. I do not consider that this ground has any merit at all. It was open to the Committee members, if they thought it appropriate, to conclude that the visual impact was acceptable.
38. There is no evidence which can support a finding of irrationality or a lack of adequate reasoning so far as this permission is concerned.

The case put by Mrs Morris

39. Mrs Morris, who addressed the court succinctly and effectively, generally supported Mr Ground. She drew my attention also to the fact that the Committee needed more information to assess the impact. She also suggested that other wind turbines were already visible in the view from behind the boathouse.

Conclusions

40. While the court can well understand why it is that those who object to this proposal are profoundly disappointed that the members of the Committee have disagreed not only with the objectors, but also with the professional views of the Planning Officer, of the National Trust and of the Conservation Officer of the Council, grounds 2-4 of this challenge cannot be sustained. The merits of planning decisions are for planning authorities or for the Welsh Ministers on appeal or call in, and not for the court. Ground 5 was not pursued before me.
41. That being so I return to Ground 1. I have considered whether I should exercise my discretion not to grant relief, on the basis that the matters which would have been explored in Environmental Assessment were also explored during the planning determination. However I remind myself of the judgement of the Court of Appeal in Bateman. At paragraph 31 Moore-Bick LJ said:

"The difficulty, as it seems to me, is that the adoption of a Screening Opinion, if one is required, is part of a process that leads eventually to the grant or refusal of Planning Permission. If any step in that process is legally flawed, the process as a whole is flawed and the grant of permission must be quashed. Accordingly, I think that there is no alternative but to grant the claimants the relief they seek."

42. I am therefore of the view that I have no discretion not to quash the Planning Permission. However I consider also that there are additional grounds for not exercising my discretion. Apart from the other deficiencies which I have identified above, I find it striking that the Screening Opinion did not address the cultural significance of the boathouse and writing room, which I remind myself are Listed Buildings. They have a cultural importance which is not merely local, nor even regional.
43. This application therefore succeeds on ground 1.
44. That is where I had concluded my draft judgement. Since I sent it out, I have received substantial submissions from Mr Ground for the Defendant, followed by an extensive reply from Ms Graham Paul. Mr Ground has argued that:

a. the correct remedy is for the Court to require the Defendant to provide reasons for the screening opinion not to quash the planning permission. He argues that as follows

i. firstly all the grounds of challenge that directly sought to challenge the planning permission have been rejected.

ii. in terms of European Law the only matter that is required is the provision of reasons when requested. There is no legal requirement in the EIA Regulations 1999 or in the Directive to provide reasons for negative screening opinions. In R (Mellor) v Secretary of State [2010] Env 2 the ECJ held that reasons were not necessary for a negative screening opinion. [§65] The reasoning can be supplied at a later stage. [63-66] Thus the usual position is that a Claimant would not be prejudiced if the reasons were provided at a later stage. Here if the Court ordered reasons to be provided the Claimant would then have a Wednesbury reasonable decision which was properly reasoned and would accordingly suffer no prejudice.

iii. it is quite clear from the judgment that the screening opinion is not castigated as being Wednesbury unreasonable.

iv. the evidence all pointed to the decision maker being well aware of the impacts on Dylan Thomas' Boatshed, even accepting that the reasoning of the screening opinion was inadequate. There could be no doubt that these cultural elements were considered by the screening decision maker. John Thomas also said that in his witness statement that "in accordance with the provisions of Article 4(3) of the EIA consideration of the potential impact of the proposal upon the cultural significance was deemed to be insignificant;"

v. the judgment does not expressly deal with remedy and consider whether it is expedient to order reasons to be provided. This clearly is best dealt with now when the parties know which grounds have succeeded and which are refused;

b. in terms of discretion there is some consideration in the judgment of this question. However it is respectfully suggested that the law has moved on since the extract in Bateman and this should not prevent a fuller consideration of remedy;

c. I am entitled to exercise my discretion not to quash the permission. He refers to R (Mevagissey Parish Council) v Cornwall Council & Anor [2013] EWHC 3684 (Admin) per Hickinbottom J at paragraph 73. He said as follows

73. "I was referred to a number of cases as to the correct approach as to relief in public law claims. The conventional domestic position is that, where an administrative decision has been found to be unlawful, although usually the relief will include an order quashing the decision (see, e.g., Berkeley v Secretary of State for the Environment [2001] 2 AC 603 at page 616F per Lord Hoffman), the court may exercise its discretion not to do so. In exercising that discretion, the court will take all the circumstances of a particular case into account; but it may be persuaded not to quash a decision because the breach of obligation was immaterial, i.e. the administrative decision would undoubtedly have been the same, even if the breach had not occurred. That approach has recently been confirmed as applying equally to cases in which the relevant obligation derives from European law (Walton v The Scottish Ministers [2012] UKSC 44; [2013] Env LR 16 at [139] per Lord Carnwath and at [156] per Lord Hope; Burridge v Breckland District Council [2013] EWCA Civ 228 at [89] per Davis LJ and at [116] per Warren J, Pill LJ apparently dissenting on this point; and R (Catt) v Brighton & Hove City Council [2013] EWHC 977 (Admin) at [142] per Lindblom J). As to approach, I consider myself bound by those authorities and, to the extent that they differ, I should not follow R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157 or the minority in Burridge (although I am sceptical as to the extent those cases in fact sought fundamentally to alter the conventional test). Bound as I am, I should emphasise that I would have held that there is discretion to withhold relief even had I been left to my own devices. This court deals with matters in the real world, and should be slow to grant relief where the challenged decision would inevitably have been the same but for the breach of obligation, neither the claimant nor anyone else has suffered any real prejudice, and there is no other good ground for relief being granted.

74. Mrs Townsend submitted in this case that I could be confident that, even if the Council had adopted a screening opinion as they ought to have done, that would and could have made no difference to the outcome; because the development has now been the subject of such screening and the 4 June 2013 opinion has concluded that this is not EIA development. There had been no possible material change of circumstance in relation to the development. Therefore, had a screening opinion been adopted when it should have been, it would have been negative. The development is not EIA development and therefore does not require any enhanced EIA. As a consequence, neither the Claimant nor anyone else has been prejudiced, or has missed out on any opportunity. Furthermore, the underlying objective of the EIA Directive – that EIA development is subject to enhanced EIA requirements, and non-EIA development is not – has been met."

d. thus for the reasons above where the three grounds of challenge to the grant of permission all have failed, where the only European duty on a negative screening opinion is to provide reasons when asked and where the negative screening opinion is not Wednesbury unreasonable it is submitted that the remedy should be an order requiring reasons to be provided.

45. Miss Graham Paul submits that:

a. the rearguing of the claim after the circulation of the draft judgment has been held by the House of Lords to be an "abuse of the procedure" (see R (on the application of Edwards) v Environment Agency [2008] 1 WLR 1587 at [73]). CPR Practice Direction 40E dealing with Reserved Judgments refers to corrections only. This was reaffirmed in Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 158 where the Court of Appeal commented on the role of draft judgments:

"The primary purpose of this practice is to enable any typographical of similar errors in the judgments to be notified to the court. The circulation of the draft judgment in this way is not intended to provide an opportunity to any party (and in particular the unsuccessful party) to reopen or reargue the case, or to repeat submissions made at the hearing, or to deploy fresh ones".

b. it would only be in "exceptional circumstances" that the court might be asked to revisit the substantive text in the judgment, the example given being where a judgment may contain detrimental observations about an individual or indeed his lawyers. It is not an opportunity to reopen the legal arguments upon which a party has lost. It is therefore entirely improper and an abuse of process for the Defendant to suggest that a different remedy should be granted to that ordered in the judgment at paragraphs 40 and 41, particularly when counsel for the Defendant argued matters concerning remedy at the hearing.

c. in any event, the Defendant's submissions on remedy are flawed. Firstly, the Defendant is incorrect in asserting that the judge found error only with the reasoning of the screening opinion and not in regards to 'impact', paragraph 25 of the judgment, to which the Defendant refers, clearly states:

"I therefore consider that the reasoning of the Screening Opinion is inadequate. I also consider that the Screening Opinion has failed to address the question properly of the impact which had to be considered."

d. even on the Defendant's argument in relation to reasons, it is not the case that reasons for a negative EIA screening opinion may be provided at any stage, even after the grant of planning permission, or indeed, as is being suggested in this case, after the conclusion of a High Court challenge. Mellor provides that reasons must be made available "on request". The Claimant made a request for Mellor reasons in its pre-action protocol letter at paragraph 34. No further reasoning was provided. The Claimant therefore commenced judicial review litigation on the basis of the Defendant's confirmed position as to the reasons for the screening opinion. To alter that position now in itself causes prejudice and is contrary to the ECJ's judgment in Mellor at [59] – [60]:

"… effective judicial review, which must be able to cover the legality of the reasons for the contested decision, presupposes in general, that the court to which the matter is referred may require the competent authority to notify its reasons. However where it is more particularly a question of securing the effective protection of a right conferred by Community law, interested parties must be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts. Consequently, in such circumstances, the competent national authority is under a duty to inform them of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request…

That subsequent communication may take the form, not only of an express statement of the reasons, but also of information and relevant documents being made available in response to the request made" [emphases added];

e. there is no authority to support the Defendant's suggestion that inadequate reasons may be cured by an order that the Defendant provide adequate reasons ex post facto, and none is cited in paragraph 8 of the Defendant's submissions. The only binding authority is to the effect that an error in the EIA process should lead to the quashing of the planning permission (see Bateman);

f. in any event, the Defendant has not provided adequate evidence that the negative screening opinion would inevitably be the same had the reasoning been properly set out. In C-72/12 Altrip [2013] ECR (NB which post-dates Walton), the CJEU considered whether national courts could impose an additional requirement that a Claimant must show there was a possibility that the contested decision would have been different were it not for the procedural defect in the EIA process. The CJEU held that any conditions fixed by Member States: "may not make it in practice impossible or excessively difficult to exercise the rights conferred by [the EIA Directive] in order to give the public concerned wide access to justice, with a view to contributing to preserving, protecting and improving the quality of the environment and protecting human health" (at [46]). It noted at [48] that

"… given that one of the objectives of that directive is, in particular, to put in place procedural guarantees to ensure the public is better informed of, and more able to participate in, environmental impact assessments … it is particularly important to ascertain whether the procedural rules governing that area have been complied with. Therefore, as a matter of principle, in accordance with the aim of giving the public concerned wide access to justice, that public must be able to invoke any procedural defect in support of an action challenging the legality of decisions covered by that directive" (at [48]).

g. the Court concluded that, whilst "it could be permissible for national law not to recognise impairment of a right … if it is established that it is conceivable … that the contested decision would not have been different without the procedural defect invoked", the burden of proof must not fall on the Claimant in that regard ([51] and [53]). Further, the national court should take into account: "the seriousness of the defect invoked and ascertain, in particular, whether the defect has deprived the public concerned of one of the guarantees introduced with a view to allowing that public to have access to information and to be empowered to participate in decision-making in accordance with the objectives of the EIA Directive" (at [54]).

h. The Court concluded that, whilst "it could be permissible for national law not to recognise impairment of a right … if it is established that it is conceivable … that the contested decision would not have been different without the procedural defect invoked", the burden of proof must not fall on the Claimant in that regard ([51] and [53]). Further, the national court should take into account: "the seriousness of the defect invoked and ascertain, in particular, whether the defect has deprived the public concerned of one of the guarantees introduced with a view to allowing that public to have access to information and to be empowered to participate in decision-making in accordance with the objectives of the EIA Directive" (at [54]);

i. the failure to provide adequate reasons is a serious breach of European jurisprudence, which has deprived the public of its ability to participate in decision-making in accordance with the EIA Directive's objectives. It is also contrary to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus, 1998), which is incorporated in material respects in the EIA Directive (Article 10a inserted into the EIA Directive by Directive 2003/35). The Claimant, among other local residents, is concerned with the environmental effects of the development, and was entitled to know the Defendant's reasoning "upon request". The Defendant has still not adequately satisfied itself that an Environmental Statement is not required, having regard to all the Schedule 3 considerations, and has not provided the public with its adequately reasoned consideration of the matter. It cannot, on any view of the matter, be said to have discharged the burden set out in Altrip;

j. even if the Defendant did now provide reasons, it would be highly doubtful that that they would (or, indeed, could) be an accurate reflection of the authority's reasoning at the time of the screening opinion. Impacts of "significance" were noted in the screening opinion, albeit local ones as referred to in the judgment at paragraph 22. As the Judge observed, the fact that they were local did not mean that they were not capable of being significant for EIA purposes. No explanation has been put forward by the Defendant as to what was really meant. Furthermore, the officer's report described the view from Dylan Thomas Boathouse as one of international cultural importance and said that there would be "significant visual impact" and there was no indication in the screening opinion that the effects on the Boathouse and Writing Shed had been assessed for EIA purposes (see judgment at paragraph 24). It is clear that the Screening Opinion reflects a misunderstanding of the EIA Directive and Regulations and is not simply underwritten in terms of its reasoning;

k. in respect of the witness statement of the planning officer, John Thomas:

i. The belated attempt to assert that a judgement was in fact made regarding impact on cultural importance of the landscape cannot 'cure' the unlawful screening opinion because it is still in breach of Mellor since reasons were not provided "upon request" and the public were therefore denied the opportunity to participate in the EIA process at the appropriate time, which is highly prejudicial (as set out above);

ii. Mr Thomas does not address the Judge's concern regarding the reference to effects "of significance" in the screening opinion, which, as the learned Judge noted, could mean that the effects were capable of being significant (see paragraph 24 of the judgment);

iii. The Claimant has not been afforded the opportunity to cross-examine the officer as to whether his recollection of unrecorded opinions, apparently made by him, accurately reflects the screening opinion. It is also highly relevant that the screening opinion was in fact drafted by a different officer, Gary Glenister, and John Thomas only counter signed it. Mr Glenister has not provided a witness statement and therefore there is no way of knowing that his view accords with that of Mr Thomas;

iv. if it was indeed Mr Thomas' (and potentially Mr Glenister's) judgement that the potential impact of the proposal upon the cultural significance of the surrounding area was insignificant, then that conclusion must be irrational in light of the officer's report and its conclusions of "significant visual impact" on landscape of international cultural importance;

l. There are simply so many uncertainties that it cannot possibly be said in this case that the ultimate outcome of the screening process is bound to be the same;

m. accordingly, there cannot have been substantial compliance with the Directive, even with an order that reasons are provided (whatever they might be) because:

i. there is uncertainty as to whether the ultimate result would be the same and

ii. in any event, the public has been denied its right to participate in the EIA process at the appropriate time, which is highly prejudicial since they were entitled to enter into litigation with full knowledge of the facts (see Mellor). Like Bateman, this is not a case where it would be appropriate to refuse to quash;

n. lest there be any doubt, the comments of Moore-Bick LJ in Bateman at [31] remain good law and the Defendant never argued otherwise either in its written submissions on at the High Court hearing. The general rule is that any procedural failure in Environmental Impact Assessment vitiates the planning permission granted and so it must be quashed. There is a discretion to decline to quash, as the learned Judge acknowledges in paragraphs 40 and 41 of the judgment, but it should only be exercised in exceptional circumstances where the breach of the Directive is immaterial. This has been the case since C-431/92 Commission v Federal Republic of Germany [1995] ECR I-2189. There, an EIA had been carried out but one which only complied with the then narrower requirements of domestic legislation rather than the Directive. The Commission were unable to point to what specific requirements of the Directive had not been complied with. It was held that: "In the light of those considerations, the Commission should have provided appropriate evidence of non-compliance" (see [45]) and the claim was dismissed. It is nothing new;

o. Berkeley also remains good law. The discretion not to quash is an extremely narrow one. Edwards was not concerned with a breach of European law, only domestic law, and thus is not on point. Walton was concerned with the SEA Directive and not the EIA Directive. It was expressly noted that "care is needed in apply them [the statements in Berkeley] in other statutory contexts and other factual circumstances" (at [127]). Accordingly, Berkeley was distinguishable in that case, whereas it is not in the present case. In any event, in Walton the Supreme Court noted that the court was satisfied that the applicant had been able in practice to enjoy the rights conferred by the European legislation (at [139]) and that led them not to quash. The Claimant has not in practice enjoyed the rights conferred by European law, as explained in Mellor, in this case;

p. as set out above, Altrip is now the guiding European authority and supports the Claimant's position – the Defendant has failed to demonstrate compliance with the Claimant's rights under Mellor and Aarhus or indeed that the decision on EIA screening is ultimately bound to be the same. The other authorities referred to by the Defendant (Mevagissey and Catt) are not binding on this Court and are simply an application of the uncontroversial principles - that there is a discretion but it must be very sparingly exercised and only when the error is immaterial - to their own facts. Burridge v Breckland is also fact specific. There, a full screening opinion had been provided in relation to an earlier, almost identical, application and planning offers saw no need for further screening. The Court found in the circumstances that the revised proposal had been effectively screened and thus the development fell within the "exceptional category" of case which justified departure from the general rule that a procedural failure in EIA vitiates the planning permission;

q. for all of these reasons, I was right as a matter of law and discretion that the planning permission should be quashed. The judgment is clear that there is a discretion as a matter of law but, as in Bateman, it is not appropriate to exercise the discretion not to quash on these facts (see paragraphs 40 and 41 of the judgment). Quite apart from the procedural failing to provide adequate reasons, the judgment went on to find that there were additional grounds for not exercising his discretion not the quash, on the basis of the cultural importance of the Boathouse and Writing Shed, which is not merely local, nor even regional (see paragraph 41 of the judgment). The Defendant cannot go behind these findings.

46. I do not consider it necessary to reach a firm conclusion on the debate which Mr Ground's new arguments for the Defendant have stimulated. I recognise the strength of the argument that a discretion should always exist not to quash a permission because the breach of the requirements as to screening was simply technical, or that the result would have been the same in any event, although Miss Graham Paul's trenchant submissions cast considerable doubt upon it. But that is as may be. I have made a finding, which I am not persuaded was in any sense outside my powers, that this screening opinion was not just inadequately reasoned, but had also failed to address what it was required to under the EIA Regulations. I am not persuaded that Bateman is no longer good law in a case such as this. But even if Mr Ground is right, it is beyond argument that the court has a discretion not to quash the consent. I have considered whether I would have exercised it in this case, and decided that I would not have done so. There were, as I have found, some matters of significance which were not addressed by the Committee. I refer to paragraphs 23-26 and 42 above.
ORDER

1. The planning permission W/2937 issued by the defendant Carmarthenshire County Council for Installation of 1 No WTN 250KW wind turbine with an overall height of 45m including associated temporary infrastructure on land at Mwche Farm, Llansteffan, Carmarthen SA33 5HH to the interested party Mr and Mrs G Morris on 19th June 2014 is quashed;

2. The Defendant will pay the Claimant's costs in the sum of £21,275 for all the costs in claim.

APPLICATION FOR PERMISSION TO APPEAL

1. The Defendant has sought permission to appeal, on the following grounds

a. when the screening opinion is read in conjunction with the request and the committee report and the further witness statement of John Thomas the essence of the reasoning is apparent. An impact on a viewpoint of 1 turbine 2km away even if it is culturally significant does not mean that in the round there would be likely significant environmental effects when all the criteria are considered from this single turbine scheme.

b. if the Court orders a remedy greater than a requirement to provide reasons for the negative screening opinion that would be appealed on the basis that the incorrect remedy was ordered by the Court for the reasons above;

c. thus in the circumstances it is submitted that notwithstanding the judgment the appeal would have a real prospect of success and permission to appeal should be granted.

2. Miss Graham Paul resists that application

a. on the grounds set out above;

b. quite apart from the procedural failing to provide adequate reasons, the learned Judge went on to find that there were additional grounds for not exercising his discretion not the quash, on the basis of the cultural importance of the Boathouse and Writing Shed, which is not merely local, nor even regional (see paragraph 41 of the judgment). The Defendant cannot go behind these findings.

3. I consider that there is an arguable case on appeal. Although I think that the subsequent evidence of Mr Thomas cannot be reconciled with what the officer actually said in the Committee Report or in the screening opinion (and for that reason I would not have granted permission had that been the only matter advanced), given the fact that I think the other matters are arguable, I shall not excise that aspect of the argument at this stage. Permission is therefore granted on the grounds advanced by Mr Ground for the Defendant.