QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
B e f o r e :
| POWYS COUNTY COUNCIL
|- and -
|THE WELSH MINISTERS
- and -
RES UK & IRELAND LIMITED
Morag Ellis Q.C. (instructed by Director of Legal Services, Welsh Government) for the First Defendant
Gordon Nardell Q.C. (instructed by Squire Patton Boggs (UK) for the Second Defendant
Hearing dates: 22 October 2015
(Sitting at Swansea Civil Justice Centre)
Crown Copyright ©
Mr Justice Lewis
The Application for Planning Permission
The Inspector's Report
"207. I note the lack of objection from Cadw and the Clwyd Powys Archaeological Trust and I consider that the development would cause less than substantial harm to most of the SAMs and LBs in the immediate vicinity of the appeal site. However, I have identified substantial harm from the appeal proposal to the setting of three SAMs Castell y Blaidd, Coventry Barrow and Ty'n y Ddoll Barrow, such that the development conflicts with Policies E3, SP3, SP12 and ENV17 of the UDP, TAN 8, PPW and EN-1."
"241. The proposal would make a contribution towards the UK's target of 15% of energy to be derived from renewable resources by 2020 and the WG's aim of having 2GW in total capacity by 2015/2017, although it would come towards the end of that target period. The planning system has an important role in delivering the above target and aim with the latter to be achieved by, amongst others, optimising the use of the existing SSAs. Nonetheless TAN 8 recognises that not all the land within the SSAs may be environmentally suitable for major wind power proposals and the Minister's letter of July 2011 confirms that all SSAs have a finite environmental capacity and output should not exceed the maximum levels outlined. In isolation, the development would not exceed the target for SSA C, but it may be exceeded if other wind farms under consideration are permitted in advance of a decision on this appeal.
242. A balance needs to be struck between the benefits of generating electricity from renewable onshore wind and the identified impacts of the scheme on the landscape character and visual amenity of the area, the setting of the SAMs and LBs and other matters raised in evidence.
243. Although in respect of landscape character and visual amenity I consider that the development would cause harm, in TAN 8 there is an implicit objective to accept significant change in landscape character. I consider that the degree of change to the landscape, and as a consequence visual amenity, that would be brought about by the development on its own would be consistent with the aims of TAN 8. However, in combination with other similar development the balance may be tipped over into unacceptability. I am also satisfied that, subject to conditions, the development would be satisfactory with regard to noise and ecology.
244. I have identified substantial harm from the development to the setting of the SAMs Castell v Blaidd, Coventry Barrow and Ty'n y Ddoll Barrow which would be in conflict with policies of the development plan. Moreover the identification of harm to the settings of the Cwm y Hob LBs is of considerable importance and merits weight in the balancing exercise by reason of Section 66 of the 1990 Act.
245. I have also identified a degree of harm to tourism and although I have concluded that this harm would be insufficient to justify dismissing the appeal, it carries weight against it.
246. With regard to the effect of the development on the living conditions of local residents, I have concluded that the effect of the internal access route on the residents of Fiddlers Green and Lower Fiddlers Green would be limited. The residents of these properties would also be affected by increased traffic on the local highway network although it would not be sufficient to cause harm. Issues of the private water supply to the same properties I am satisfied can be protected by condition and matters raised in relation to the effect of the development on the health of local residents are also not sufficient to justify refusal of the appeal.
247. In terms of shadow flicker only three properties would potentially be affected for less than 30 minutes per day during three months of the year and such effects can be safeguarded via a condition. Although the turbines would feature in the outlook from several properties in the area surrounding the site, I have concluded that the proposed development would not appear unpleasantly overwhelming and an unavoidable presence in main views. However, I am concerned that with the proximity of the development to the Gatehouse and the circumstances regarding the health of the occupant that the property might come to be regarded by her as an unattractive and thus unsatisfactory (but not uninhabitable) place to live. This carries weight against the appeal.
248. However, on balance I conclude that the positive benefits of renewable energy, the location of the site within SSA C and the acceptable level of change to landscape character and visual amenity outweigh the considerable weight against the appeal from the identified harm to the setting of the SAMs and the limited identified harm in the other respects identified above. The evidence persuades me that the balance is in favour of the appeal and that the proposal would therefore accord with Policy E3 as the primary policy against which the appeal needs to be judged. On this basis I conclude that the appeal should be allowed."
The Decision of the Welsh Ministers
"The starting point for the consideration of the appeals is section 38 of the Planning and Compensation (sic) Act 2004 which provides that if regard is to be had to the development plan for the purposes of any determination to be made under the Planning Acts, the determination shall be in accordance with that plan unless material considerations indicate otherwise."
"12. The Inspector's conclusions on this issue are at paragraphs 163 – 180 of her report. In her conclusions the Inspector has had regard to policy EN-1 – "Overarching National Policy Statement for Energy". Policy EN-1 is a UK Government policy which applies to applications for consent made under the Planning Act 2008 for electricity stations generating more than 50mMW of onshore energy including from wind power. Applications of this nature are not a devolved matter and, as Appeal A is for the generation of less than 50MW of onshore energy, policy EN-1 is therefore not relevant. Consequently, I cannot take policy EN-1 into account when determining Appeal A. Subject to this comment I agree with the Inspector's conclusions."
"14. The inspector's conclusions on this issue are at paragraphs 191- 210 of her report and I agree with them."
"Subject to these comments, and those made in paragraphs 12 and 13 above, I agree the Inspector's overall conclusions and accept the recommendation that planning permission be granted for the revised scheme."
"28. The Inspector outlines that the conditions for this appeal agreed between the parties and discussed at the Inquiry provide an appropriate basis for the set of conditions that would need to be applied if planning permission were granted for the proposed development. The Inspector has drafted a revised set of conditions for Appeal A which are contained in Annex D to the Inspector's report. The Inspector considers those conditions would meet the tests prescribed in Welsh Government Circular 016/2014: The Use of Planning Conditions for Development Management.
29. While I agree with the Inspector that the conditions contained in Annex D provide an appropriate basis for the set of conditions that would need to imposed on any planning permission, I consider that a number of them, as drafted, do not satisfy the tests in Circular 016/2014.
30. Consequently I have redrafted a number of conditions to improve precision, deleted a number of conditions which, while desirable, are not necessary for the development to proceed and deleted a number of conditions which are not relevant to planning.
31. Two of the conditions, between them, require the setting up, and operation of, a financial agreement for the provision of monies to cover decommissioning and site restoration costs. This is not something than can be required by condition and should be the subject of a legal agreement between the developers and the local planning authority. I have considered whether it would be appropriate to issue a 'minded to approve' letter subject to the legal agreement being provided but, in view of the nature of the development proposed and the type of decommissioning and restoration works that would be involved, I do not believe that the lack of such a financial agreement in this case would justify planning permission being refused.
32. The inspector notes that the final choice of turbine has not been made by the appellant and although it is anticipated that the turbines would generate 2MW each, a range of 1.8 to 3.5MW has been suggested which would equate to a maximum generating capacity for the proposed wind farm of 59MW. As the Welsh Ministers do not currently have the power to grant consent for the generation of 50MW or above of onshore electricity, I am of the opinion a condition should be attached to the planning permission to ensure the amount of electricity generated can not exceed 49MW."
THE STATUTORY FRAMEWORK AND THE PLANNING POLICIES
The Statutory Framework
"(2) In dealing with such an application the authority shall have regard to
(a) the provisions of the development plan, so far as material to the application
(b) any other material considerations."
"(6) If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
The Development Plan
"POLICY E3 – WIND POWER
Applications for windfarms including extensions to existing sites and individual wind turbine generators will be approved where:
1. They do not unacceptably adversely affect the environmental and landscape quality of Powys, either on an individual basis or in combination with other proposed or existing similar developments. Where the cumulative impact of proposals in combination with other approved or existing windfarms would be significantly detrimental to overall environmentally quality they will be refused.
4. They do not unacceptably impact upon any buildings or features of conservation or archaeological interest."
The National Policy
"1.1.1. Planning Policy Wales (PPW) sets out the land use planning policies of the Welsh Government. It is supplemented by a series of Technical Advice Notes (TANs, listed in the Annex). Procedural advice is given in circulars and policy clarification letters. It translates our commitment to sustainable development into the planning system so that it can play an appropriate role in moving towards sustainability (see Chapter 4)."
"1.1.4 PPW, the TANS, circulars and policy clarification letters comprise national planning policy. National planning policy and the Wales Spatial Plan should be taken into account in the preparation of development plans. They may be material to decisions on individual planning applications and will be taken into account by the Welsh Ministers and Planning inspectors in the determination of called-in planning applications and appeals."
"The desirability of preserving an ancient monument and its setting is a material consideration in determining a planning application, whether that monument is scheduled or unscheduled. Where nationally important archaeological remains, whether scheduled or not, and their settings are likely to be affected by proposed development, there should be a presumption in favour of their physical preservation in situ. In cases involving lesser archaeological remains, local planning authorities will need to weigh the relative importance of archaeology against other factors, including the need for the proposed development."
"Where nationally important archaeological remains, whether scheduled or not, and their settings, are affected by proposed development there should be a presumption against proposals which would involve significant alterations or cause damage, or which would have a significant impact on the setting of visible remains."
"In line with the presumption in favour of sustainable development (see 4.2) applications for planning permission, or for the renewal of planning permission, should be determined in accordance with the approved or adopted development plan for the area, unless material considerations indicate otherwise. Material considerations could include current circumstances, policies in an emerging development plan, and planning policies of the Welsh Government and the UK Government. All applications should be considered in relation to up to date policies."
The Legislation and Policy Relating to Development Consents
"5 National policy statements
(1) The Secretary of State may designate a statement as a national policy statement for the purposes of this Act if the statement—
(a) is issued by the Secretary of State, and
(b) sets out national policy in relation to one or more specified descriptions of development.
(2) In this Act "national policy statement" means a statement designated under subsection (1) as a national policy statement for the purposes of this Act.
(3) Before designating a statement as a national policy statement for the purposes of this Act the Secretary of State must carry out an appraisal of the sustainability of the policy set out in the statement.
(4) A statement may be designated as a national policy statement for the purposes of this Act only if the consultation and publicity requirements set out in section 7, and the parliamentary requirements set out in section 9 , have been complied with in relation to it…..
(5) The policy set out in a national policy statement may in particular—
(a) set out, in relation to a specified description of development, the amount, type or size of development of that description which is appropriate nationally or for a specified area;
(b) set out criteria to be applied in deciding whether a location is suitable (or potentially suitable) for a specified description of development;
(c) set out the relative weight to be given to specified criteria;
(d) identify one or more locations as suitable (or potentially suitable) or unsuitable for a specified description of development;
(e) identify one or more statutory undertakers as appropriate persons to carry out a specified description of development;
(f) set out circumstances in which it is appropriate for a specified type of action to be taken to mitigate the impact specified description of a development."
"104 Decisions in cases where national policy statement has effect
1(1) This section applies in relation to an application for an order granting development consent if a national policy statement has effect in relation to development of the description to which the application relates.
(2) In deciding the application the Secretary of State must have regard to—
(a) any national policy statement which has effect in relation to development of the description to which the application relates (a "relevant national policy statement")
(3) The Secretary of State must decide the application in accordance with any relevant national policy statement, except to the extent that one or more of subsections (4) to (8) applies ….."
The National Policy Statement
"1.1.1. This National Policy Statement (NPS) sets out national policy for the energy infrastructure defined in Section 1.3 below. It has effect, in combination with the relevant technology-specific NPS (see paragraph 1.4.1), on the decisions by the [Secretary of State] on applications for energy developments that fall within the scope of the NPSs. For such applications this NPS, when combined with the relevant technology-specific energy NPS, provides the primary basis for decisions by the [Secretary of State]. Under the Planning Act 2008 the [Secretary of State] must also have regard to any local impact report submitted by a relevant local authority, any relevant matters prescribed in regulations, the Marine Policy Statement (MPS) and any applicable Marine Plan, and any other matters which the [Secretary of State] thinks are both important and relevant to its decision. "
"1.2.1. This NPS, and in particular the policy and guidance on generic impacts in Part 5, may be helpful to local planning authorities (LPAs) in preparing their local impact reports. In England and Wales this NPS is likely to be a material consideration in decision making on applications that fall under the Town and Country Planning Act 1990 (as amended). Whether, and to what extent, this NPS is a material consideration will be judged on a case by case basis."
"The statutory framework for deciding applications for development consent under the Planning Act is summarised in Section 1.1 of this NPS. This Part of the NPS sets out certain general policies in accordance with which applications relating to energy infrastructure are to be decided that do not relate only to the need for new energy infrastructure (covered in Part 3) or to particular physical impacts of its construction or operation (covered in Part 5 and the technology-specific NPSs)."
"5.8.14 There should be a presumption in favour of the conservation of designated heritage assets and the more significant the designated heritage asset, the greater the presumption in favour of its conservation should be. Once lost heritage assets cannot be replaced and their loss has a cultural, environmental, economic and social impact. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. Loss affecting any designated heritage asset 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 assets of the highest significance, including Scheduled Monuments; registered battlefields; grade I and II* listed buildings; grade I and II* registered parks and gardens; and World Heritage Sites, should be wholly exceptional.
5.8.15 Any harmful impact on the significance of a designated heritage asset should be weighed against the public benefit of development, recognising that the greater the harm to the significance of the heritage asset the greater the justification will be needed for any loss. Where the application will lead to substantial harm to or total loss of significance of a designated heritage asset the [Secretary of State] should refuse consent unless it can be demonstrated that the substantial harm to or loss of significance is necessary in order to deliver substantial public benefits that outweigh that loss or harm."
(1) did the Welsh Ministers err in deciding that the policy set out in paragraphs 5.8.14 and 5.8.15 of EN-1 were not relevant to the determination of the appeal against the refusal of planning permission?
(2) was there any procedural unfairness in the way in which the Welsh Ministers dealt with the question of the applicability of paragraphs 5.8.14 and 5.8.15 of EN-1 to the appeal?
(3) did the Welsh Ministers give adequate reasons for their conclusions on, and correctly apply, the relevant provisions of the PPW?
(4) did the Welsh Ministers give adequate reasons for their approach to the decommissioning arrangements?
THE FIRST ISSUE –THE RELEVANCE OF PARAGRAPHS 5.8.14 AND 5.8.15 OF EN-1
"Sir Thomas Bingham M.R. in the course of his judgment in this case said that "material" in subsection (2) meant "relevant," and in my opinion he was correct in this. It is for the courts, if the matter is brought before them, to decide what is a relevant consideration. If the decision maker wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, his decision cannot stand and he must be required to think again. But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation  1 KB 223)."
"31. What is capable of being a material consideration for the purposes of a planning decision? This question has on several occasions been considered by the courts. The concept of materiality is wide. In principle, it encompasses any consideration bearing on the use or development of land. Whether a particular consideration is material in a particular case will depend on the circumstances (see the judgment of Cooke J. in Stringer v Minister of Housing and Local Government  1 W.L.R. 1281; (1971) 22 P. & C.R. 255 (at p.1294G)). In the context of development plan-making and development control decision-taking, the test of materiality formulated by Lord Scarman in his speech in Westminster City Council v Great Portland Estates Plc  AC 661; (1985) 50 P. & C.R. 20 (at p.669H to p.670C–E) is whether the consideration in question "serves a planning purpose", which is one that "relates to the character and use of land."
"50 The power of a minister to issue a statement articulating or confirming a policy commitment on the part of the government does not derive from statute. As was noted by Cooke J. in Stringer (at p.1295), s.1 of the Town and Country Planning Act 1943 imposed on the minister a general duty to secure consistency and continuity in the framing and execution of a national policy for the use and development of land. Although that duty was repealed by the Secretary of State in the Environment Order 1970, Mr Mould submitted, and I accept, that it still accurately describes the political responsibility of the Secretary of State for planning policy. The courts have traditionally upheld the materiality of such policy as a planning consideration. In his speech in Tesco Stores Ltd. (at p.777F) Lord Hoffmann acknowledged that the range of policy the Secretary of State may promulgate is broad. The example cited by Lord Hoffmann was "a policy that planning permissions should be granted only for good reason". In Kirkman Carnwath J. said (at pp. 566 and 567):
"… A distinction must be drawn between (1) formal policy statements which are made expressly, or are by necessary implication, material to the resolution of the relevant questions, (2) other informal or draft policies which may contain relevant guidance, but have no special statutory or quasi-statutory status. Even though the planning Acts impose no specific requirement on local planning authorities to take account of Government policy guidance, it is well established that it should be treated, so far as relevant, as a material consideration (see Gransden v Secretary of State ex parte Richmond  1 W.L.R. 1460, 1472). Given the Secretary of State's general regulatory and appellate jurisdiction under the Acts, his policies, and those of the Government of which he forms part, can no doubt be regarded as "obviously material" within the Findlay tests. The same can be said of his policies in respect of the Environment Protection legislation …"
In Findlay, Re [1985 A.C. 318 , to which Carnwath J. referred there, Lord Scarman approved (at p.333) as a "correct statement of principle" the following observations made by Cooke J. in CREEDNZ Inc v Governor General  1 N.Z.L.R. 172 (at p.183):
"… What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken unto account, or even that it is one which many people, including the Court itself, would have taken into account if they had to make a decision."
"… There will be some matters so obviously material to a decision on a particular project that anything short of direct consideration by the ministers … would not be in accordance with the intention of the Act."
"26. A helpful means of determining what is material or relevant is to be found in the judgment of Glidewell LJ in Bolton Metropolitan Bo Council v Secretary of State for the Environment (1990) 61 P&CR 343 , albeit the statutory context was different (the confirmation of a compulsory purchase order). At pages 352–353 he set out the following principles:
"1. The expressions used in the authorities that the decision maker has failed to take into account a matter which is relevant … or that he has failed to take into consideration matters which he ought to take into account … have the same meaning.
2. The decision-maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb 'might', I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.
4. … [T]here is clearly a distinction between matters which a decision maker is obliged by statute to take into account and those where the obligation to take into account is to be implied from the nature of the decision and of the matter in question ….
5. If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category, it is for the judge to decide whether it was a matter which the decision maker should have taken into account.
6. If the judge concludes that the matter was 'fundamental to the decision', or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid.
7. … Even if the judge has concluded that he could hold that the decision is invalid, in exceptional circumstances he is entitled nevertheless, in the exercise of his discretion, not to grant any relief."
27. R (Kides) v South Cambridgeshire District Council  EWCA Civ 1370 was a decision of this court on section 70(2) of the Town and Country Planning Act 1990 and therefore directly in point. Jonathan Parker LJ, with whom the other members of the court agreed, explained "material considerations" as follows at :
"In my judgment a consideration is 'material', in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues.
28 Mr Douglas Edwards QC, for the appellant, invited us to apply the test in Kides and sought to distinguish the statement of principles in Bolton. I see no real difference between the formulations in the two cases, if one focuses as one should on the second of the categories referred to in Bolton (on the basis that section 70(2), although requiring other material considerations to be taken into account, leaves at large what other considerations may be material). Any distinction between "a real possibility that he would reach a different conclusion if he did take that consideration into account" and "a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other" is too fine to matter for present purposes."
The Relevant National Policy in the Present Case
The Decision in the Present Case
THE SECOND ISSUE – PROCEDURAL FAIRNESS
THE THIRD ISSUE – THE PROPER APPLICATION OF THE PPW AND CIRCULAR 60/96
THE FOURTH ISSUE - FUNDING MECHANISMS FOR DECOMISSIONING WORKS