QUEEN'S BENCH DIVISION
SITTING IN THE SWANSEA CIVIL JUSTICE CENTRE
Strand, London, WC2A 2LL
B e f o r e :
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|CARMARTHENSHIRE COUNTY COUNCIL
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Mrs Harriet Townsend (instructed by Steven Murphy, solicitor to the Council) for the Defendant
Mr Gwydion Hughes (instructed by Eversheds LLP) for the Interested Party
Hearing dates: 14/07/2015
Crown Copyright ©
Mr Justice Cranston:
"can be dealt with through assessments within the planning application process and would not justify the need for a full EIA individually unless there are significant justifications on either one set of reasoning (e.g., landscape impact on sensitive areas) or cumulative in terms of a likely significant impact on a number of factors that would benefit from more in-depth investigation under an EIA."
"Given the relatively small number of residential properties within close proximity to the proposed wind turbine it is deemed that any potential impacts on any population's amenities, including any potential visual or noise impact can be adequately assessed within the planning application process subject to providing sufficient detail. The impacts can be considered through the planning application process without the need for EIA for this scale turbine at this location would be the potential visual and landscape impact, shadow flicker/noise on nearby properties and the impact on ecology will also need to be considered. Sufficient detail in this instance would be sufficient to assess the potential impact on these factors.
The conclusion was as follows:
In conclusion, and in accordance with the need to conduct a screening opinion the Local Planning Authority considers that an EIA is not required by virtue of there not being anticipated significant environmental impacts as a result of the proposed wind turbine. All possible impacts can be adequately assessed effectively within the planning application process."
" it is requested [by the developer] that permission allows for the installation of an alternative machine of equal or smaller specifications if market challenges or other circumstances make it a more viable option at the time of construction. It is worth noting that an open ended permission would not be recommended as it would be beneficial for the Local Planning Authority to ensure that any future turbine is appropriate, not only in terms of scale and design but also in terms of other factors."
"Whilst significant adverse visual impacts may be experienced within some views from residential properties and associated amenity space through the introduction of wind turbine structures into the existing view which could be considered as resulting in significant adverse impacts to residential amenity, however, it is not considered that the impacts could be defined as being of a significance to result in the properties becoming unattractive or unsatisfactory places in which to live."
"It is useful to use the Lavender Test (based on an inspector's comments at appeal when determining visual impact) that would state that it is relevant to consider whether the proposed turbine would cause a residence to be an overwhelmingly unpleasant place to live with the proposed turbine being unavoidable. This would suggest that not only would a dwelling need to be in such proximity to be overwhelmingly unpleasant, but that the nearby dwellings would need to find the turbine unavoidable in order to rise to levels of unacceptability. In this instance, whilst it is acknowledged that the proposed turbine would be very unpleasant to those opposing the turbine in the locality, the range of views available to those dwellings would not be solely dominated by the proposed turbine with other views which contribute to their amenity available."
"Alternative wind turbines, even if smaller, may have greater impacts as proven by the previously proposed 330kW wind turbine for this site which would have had greater noise impact than the turbine currently proposed. If granted, this recommendation would propose including a condition to restrict the approval to the turbine submitted and requiring any alterations (such as an alternative model) to require prior written consent of the Local Planning Authority in order to enable assessment regarding the level of impact, which, if unacceptable, would not be permitted."
"the nature and extent of all necessary direct physical effects along the proposed turbine delivery route."
Development was to take place in accordance with what had been approved, unless the Council otherwise agreed. Condition 19 addressed shadow flicker. Condition 21 read as follows:
"The wind turbine hereby approved shall be 40 metres to the centre of the hub and 67 metres to blade tip, unless given the written approval of the local planning authority."
Conditions 24 and 25 provided for the Council to approve the other matters before commencement.
" Prior to the commencement of the development an escorted and video recorded trial run for the abnormal loads shall be carried out to the satisfaction of the Local Highway Authority. Thereafter, proposals for any highways improvements that may be required shall be submitted to the written approval of the Local Planning Authority and conducted in accordance with the approved details.
 Prior to the commencement of the development, a Construction Traffic Management Plan shall be submitted to the satisfaction and written approval of the Local Planning Authority."
"Access consultants, SBA, carried out a preliminary access survey for delivery of the wind turbine abnormal loads to the site. Details of this survey are provided in Appendix G1. This route identified the need for modifications on land owned by two third party land owners (at POI 5 and POI 6) and the potential need for modifications to the land of a third party land owner (POI 14). These land owners were approached for their consent to the works identified. The land owner at POI6 has given his consent for works and has entered into an agreement with the applicants regarding this work.
The land owners at POI 5 and POI 14 were not prepared to give consents to the works. Further investigations were therefore undertaken.
A route was identified through Llandysul which avoided the need for modifications at POI 5. Swept path analysis of this route is given in the separate access document provided as Appendix G2.
A topographical survey of the road and banks at POI 14 was undertaken. Swept path analysis on this showed that the turbine was deliverable only with modifications to highways land and therefore the third party land owner at this location would not be required the results of the swept path analysis are also included in Appendix G2."
"Therefore to the best of our knowledge the recommendations and conclusions made in Sections 7 and 8 of our report, incorporating the changes as outlined above, remain valid."
"Habitat along the access route The preliminary ecological appraisal of the access route states that with the exception of potential bank removal at POI 5 (which is no longer required) it is considered that the cumulative impacts to habitat will not increase beyond a low impact. Full details of access route mitigation following the guidance detailed in Section 7.11 7.12 must be provided as a condition of any consent."
As to bats along the access route, the planning ecologist reported:
"The tree surveyor states that during the survey he did not identify any features that would be considered suitable habitat for bats. The Preliminary Ecological Appraisal of the access route (5th Nov 2014) states that the trees scheduled for works between POIs 5 and 16 are all classified as having negligible potential to support bat roosts and hence no further survey effort or action is required prior to commencement of works will be necessary. The Alternative Access Route through Llandysul indicates that the proposed access route will avoid the stretch of road between POI 4 and POI 5 therefore potential bat roosts within the trees, between POI 4 and POI 5, will not be affected. No trees between pinch-points 2-3, 3-47 and 4-5 have been specifically identified for removal or management, therefore no further consideration of these trees is considered necessary.
An advisory note should be added to the application stating that if works are subsequently found to be required to trees with the potential to support bats, then further surveys of trees to determine the presence or absences of bats will be required in order to inform appropriate mitigation measures."
First planning permission: the four grounds
(1) Condition 21: the tailpiece
" the tailpiece on its face does enable development to take place which could be very different in scale and impact from that applied for, assessed or permitted and it enables it to be created by means wholly outside any statutory process. It undermines the effect of specifying floor space limits. I do not consider that a public document such as a planning permission should contain such a provision No question of severing the condition from the planning permission could arise. The floor space limits are of central importance."
(2) Condition 24
(3) Screening opinion
" I think it important to bear in mind the nature of what is involved in giving a screening opinion. It is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all. I think it important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term "screening opinion."
(4) UDP Policy UT 6
"It is the policy of Carmarthenshire County Council that proposals for wind turbines, wind farms, or groups of wind turbines will be permitted provided the following criteria are met in full:
vi) No turbine should cause demonstrable harm to the amenity of any residents."
Mr Hunter contended that the officer's report was flawed in its interpretation and application of this policy and thus the planning committee was misled. What was required was a consideration of the demonstrable harm to the amenity of any residents. Yet, in the passages quoted earlier in the judgment, the officer's report applied a more stringent test by reference to the Lavender appeal decision, advising the committee that the impact would need to be more than overwhelmingly unpleasant, such that nearby dwellings would need to find the turbine unavoidable. In fact, Mr Hunter submitted, matters contained in the report seemed to demonstrate non-compliance with UT6(vi) since it expressly accepted, in connection with the impact on residents, that there would be significant adverse visual impacts, which could be considered as resulting in significant adverse impacts to residential amenity. It also described the overall effect as very unpleasant.
Second planning permission
(1) Access to Mr and Mrs Cock's land at POI 14
"3.4 On sections of roads with steep hedgebanks and narrow or no verges it is often necessary to cut full height of the face of hedgebanks on safety grounds, but not the hedge growth itself. It should be noted that the hedgebank and hedge growth is the responsibility of the landowner."
(2) Failure to consider impact of nature conservation on diverted route