England and Wales High Court (Administrative Court) Decisions

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

		Cardiff Civil & Family Justice Centre
		22/01/2015

Mr Justice Phillips:

1. On 10 March 2014 the defendant ("the Council") granted planning permission, pursuant to an application by the interested party ("RWE"), for the development of a wind farm at Mynydd-y-Gwair, a large grazed common about 15km north of the centre of Swansea ("the Site"), together with the construction of new access track (approximately 14.54km) from the A48 at Pontarddulais.
2. A resolution to grant permission had been passed at a meeting of the Council's Special Development Management and Control Committee ("the Committee") on 7 February 2013, the Committee adopting the reasoning and recommendation of a report presented by the Council's Head of Economic Regeneration and Planning ("the Report"): at that time there was no statutory obligation on a planning authority in Wales to give reasons for a planning decision. The delay in the formal grant of planning permission was pending RWE's assumption of a planning obligation pursuant to s.106 of the Town and Country Planning Act 1990 ("the 1990 Act") as required by the Committee's resolution.
3. The planning permission, for 16 wind turbines (maximum height to blade tip of 127m with a hub height of 80m), was subject to certain conditions, including that construction and operation of the development would be in accordance with construction method statements to be submitted and agreed addressing (i) measures for the protection of water courses and ground water and soils (condition 7j) and (ii) measures to ensure the protection of the structural condition of, in particular, a 66 inch public water main running through the site (condition 12).
4. By these judicial review proceedings the claimant, a resident living close to the Site, challenges the grant of planning permission on three grounds. His first contention is that the Council failed to determine the application in accordance with the applicable statutory test. It is common ground that, by virtue of the combined effect of s. 70(2) of the 1990 Act and section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"), the Council was required to determine the application for planning permission "in accordance with the [development] plan unless material considerations indicate otherwise". The claimant contends that the Report (and therefore the Committee, in basing its resolution on the Report), did not properly consider and apply that statutory presumption and accordingly failed to give the required priority to the development plan. The Council and RWE both reject that contention, submitting that the Report gave all due weight to the development plan.
5. By his second and third grounds, the claimant contends that both the condition imposed in relation to protecting water courses and the condition in relation to protecting water mains were unlawful (in ether case rendering the grant of permission itself unlawful). The claimant asserts that there was no evidence before the Committee that measures were available which were capable of meeting the planning objections they were intended to address, with the result, the claimant contends, that the Council could not have formed the view that those conditions were necessary and reasonable. The Council and RWE rely on the fact that the conditions were proposed by the statutory water undertaker and contend that they were accordingly both necessary and reasonable

The background facts

(a) The previous application made by RWE

6. RWE had made a previous application for planning permission to develop a wind farm at the Site in August 2008. That application proposed the installation of 19 wind turbines and new access track 13.8km in length ("the Original Scheme").
7. Shortly thereafter, in November 2008, the Council adopted a new Unitary Development Plan ("the UDP"), which was the relevant development plan to be considered in determining the application in relation to the Original Scheme (and was still the relevant development plan for the purposes of the Council's consideration of the present application). The UDP includes Policy R11, which states that:

"Proposals for the provision of renewable energy resources will be permitted provided:

…

(ii) the scale, form, design, appearance and cumulative impacts of proposals can be satisfactorily incorporated into the landscape, seascape or built environment and would not significantly adversely affect the visual amenity, local environment or recreational/tourist use of these areas,

(iii) there would be no significant adverse effect on local amenity, highways, aircraft operations or telecommunications."

8. As the Council did not determine the application in time, RWE appealed. The appeal was heard in 2010 by an Inspector appointed by the Welsh Ministers. In addition to broad objections to the construction of a wind farm on the Site, there was a specific concern that the proposed positioning of the wind turbines would harm the peat bog habitat on the Site, the proposed location of three of the 19 turbines being on deep peat deposits.
9. In his report dated 27 October 2010, the Inspector concluded as follows:

i) the Original Scheme would have a significant adverse impact on the local environment and was accordingly in conflict with, in particular, Policy R11 of the UDP;

ii) accordingly, having regard to s.38(6) of the 2004 Act, permission should only be granted if material cconsiderations indicated otherwise;

iii) factors of significant weight included (a) Welsh Assembly Government ("WAG") and UK Government policies and targets for renewable energy provision, in particular, Technical Advice Note (Wales) 8: Planning for Renewable Energy (July 2005) ("TAN 8"), (b) the fact that there was already a wind farm development on neighbouring land at Mynyyd y Betws, and (c) the ability to link the Site directly into the National Grid;

iv) apart from the question of the effect of the proposal on the peat habitat, the benefits of the production of renewable energy from the Site would outweigh the conflict with the development plan and all other material considerations;

v) however, the effect on the peat habitat could not be overcome by the imposition of conditions. For that reason, permission should not be granted for the Original Scheme.

10. In a decision letter dated 21 February 2011, the Welsh Minister for the Environment, Sustainability and Housing accepted the Inspector's recommendation and therefore dismissed RWE's appeal and refused planning permission for the Original Scheme. The Welsh Minister adopted the same reasoning as the Inspector, starting with the question of whether the Original Scheme would be in conflict with the development plan:

"9. Section 38(6) … provides that planning applications and appeals should be determined in accordance with the development plan unless material considerations indicate otherwise. With this in mind the Minister agrees with the Inspector that the proposal would be in conflict with criteria (ii) and (iii) of UDP Policy R11 and takes the view that, having regard to section 38(6), planning permission should be refused unless material circumstances indicate otherwise.

10. The Inspector considered a wide range of issues arising from the proposed development and, setting aside its effect on the peat bog habitat, he was satisfied that the benefits of the production of renewable energy from this proposal would outweigh the conflict with the development plan and all the other material considerations. Subject to the following comments the Minister, also setting aside the effect of the proposed development on the peat bog habitat, agrees the Inspector's conclusions on the other issues raised by the proposed development.

……..

20. … the Minister agrees with the Inspector's conclusions and accepts that the development as proposed raises the risk of an unacceptable degree of harm to the peat habitat which is sufficient to justify refusal of this proposal."

11. RWE challenged the dismissal of its appeal by an application to the High Court under s. 288 of the 1990 Act. That challenge was successful at first instance, but that decision was reversed by the Court of Appeal [2012] EWCA Civ 311. However, the Court of Appeal noted that it was open to RWE "so to reposition the turbines and access tracks that their impact on the peat bog habitat is reduced and to make a fresh application for planning permission accordingly": per Pill LJ at paragraph 35.

(b) The present application

12. RWE duly revised its proposal so as to remove the risk of damage to the peat habitat at the Site, reducing the number of wind turbines to 16 and relocating the access track. The present application for planning permission, for the revised proposal, was made on 3 September 2012.

(c) The Report

13. The Report was a detailed document, running to 151 pages. It was prefaced by a summary which expressly stated that it was not a substitute for the Report's detailed consideration, but a guide to its contents. The summary of the Report's Appraisal and Conclusion section was as follows:

"This section describes the proposal; sets out the context of this re-submission including the site selection and the design evolution; refers to the Inspector's and Welsh Minister's detailed consideration of the 2008 submission for 19 turbines at Mynydd y Gwair; details the relevance of the Mynydd y Betws Wind Farm currently under construction adjacent to the site for 16 turbines with a maximum height of 110 metres to blade tip; analyses the energy policy framework with its guidance on targets for renewable energy generation; indicates the conflict of the proposal with the criteria of Policy R11 of the UDP, and the weight to be afforded this; and comments in detail on the acknowledged impact on sensitive receptors of the proposal, both during the construction and operational phases, including access proposals.

The section's conclusions, among others, is that notwithstanding the weight to be afforded the proposal's conflict with the UDP in terms of its acknowledged significant adverse impact on the landscape, this is outweighed by the Welsh government guidance in TAN 8 that significant landscape changes should be accepted in land allocated within Strategic Search Areas for wind farms "

14. The body of the Report started by setting out relevant planning policies, beginning with the UDP. Policy R11 was set out in full, save that there were certain errors in transcription, the most significant being that the key test of "significant adverse effect" was wrongly transcribed, in both sub-paragraphs (ii) and (iii), as "unacceptable adverse effect".
15. The Report then set out the planning history, recording the findings of the Inspector and the Welsh Minister set out above, as well as the decision of the Court of Appeal.
16. After further consideration of the planning policy context and a detailed planning assessment, the Report's conclusions commenced at paragraph 4.31 and included the following:

"The Ministerial decision letter and the Inspector's Report in respect of the previous wind farm proposal ... are fundamental material planning considerations and have been afforded significant weight in the consideration and assessment of this planning application, particularly in view of the fact that national and local planning policy context has not significantly altered since the appeal. The Planning Inspector's recommendation report and the Minister's decision report in respect of the previous proposal for 19 wind turbines focused on a number of key issues, which the applicants [sic] has sought to address within this revised planning application and accompanying Environmental Statement.

Section 38(6) of [the 2004 Act] provides that planning application should be determined in accordance with the development plan unless material considerations indicate otherwise. In consideration of the appeal the inspector gave weight to UDP Policies R11, EV22 and EV29 ... Policy R11 specifically applies to renewable energy, and whilst the Inspector acknowledges a conflict between the objectives of policies EV22 and EV29 and the large wind farm, the Inspector considered "the tests included within Policy R11 require the consideration of what are in effect the same matters. Therefore I consider that the most significant policy to test this proposal against is R11". However, the Inspector highlighted that the wording of the criteria (ii) and (iii) introduced a test of 'significant adverse effects' whilst Annex D to TAN8 accepts that within the SSAs, the implicit objective is to accept the landscape change i.e. no significant change in landscape character from wind farm development. The Inspector considered that the change brought about by the wind farm would be adverse and therefore in conflict with policy R11. However, it was concluded that having regard to the benefits of the production of renewable energy from the proposal would outweigh the conflict with R11 and all other material considerations and that in general terms a development of the number of turbines up to a maximum height of 127 m at this location was acceptable. This conclusion was accepted by the Welsh Minister, notwithstanding the issue regarding the impact on the peat deposits".

17. The Report then recorded that the previous application had failed due to the unacceptable risk of harm to the peat habitat and that the revised proposal for 16 wind turbines had satisfactorily overcome those concerns. The Report then stated:

"The starting point for the consideration of this application must be International, UK and Welsh policy in relation to climate change and the role renewable energy plays in facing this global challenge. Planning Policy Wales (2012) and TAN 8 Planning for Renewable Energy (July 2005) provide the key Welsh planning policy guidance and advice. "

18. The Report's Overall Conclusion noted the conclusion of the Inspector that, setting aside the question of the effect of the proposal on the peat habitat, the benefits of the production of renewable energy from this proposal would outweigh the conflict with the development plan and all other material considerations and that, in general terms, a development of this number of turbines up to a maximum height of 127m was acceptable. The Report then stated that, as the revised proposal for 16 turbines had addressed the specific impact of the siting of the turbines and access tracks on the peat habitat, the predicted impacts of the proposal could be adequately mitigated. Approval was therefore recommended.
19. Among the consultation responses addressed in the Report, detailed consideration was given to the response from Dwr Cymru/Welsh Water ("DCWW"). In particular, the Report recorded:

i) that the proposed access track would traverse a 66 inch water main which supplied water for 400,000 customers across South Wales and was classified by the UK government as an asset of Critical National Importance. DCWW expressed the view that the proposal did not contain adequate protective measures for this water main, first because it provided for a reinforced concrete deck which would prevent access to the pipe and second, because it failed to ensure that no stresses were placed on the pipe when abnormal loads were traversing it, in particular during construction of the wind farm;

ii) that DCWW took the view that the Environmental Statement failed properly to consider the risk of dissolved contaminants being released into local water courses as a result of peat disturbance;

iii) that DCWW requested that the Council impose conditions on any planning permission, requiring that measures be agreed to address each of the concerns identified above, failing which DCWW should be taken as objecting to the proposal.

20. The Report duly recommended that planning permission be granted, subject to numerous conditions, including those requested by DCWW.
21. As referred to above, the Report was considered by the Committee on 7 February 2013 and its recommendations were accepted.

Ground 1: whether the relevant statutory presumption was properly applied

22. S.70(2) of the 1990 Act provides that, in dealing with an application for planning permission, a local planning authority shall have regard to the development plan (among other matters), so far as material to the application. S.38(6) of the 2004 Act further provides:

"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."

23. The proper approach to the statutory presumption created by s.38(6) was considered by the House of Lords in City of Edinburgh Council v. Secretary of State for Scotland [1997] 1 WLR 1447, albeit in the context of the identical provision in the Town and Country Planning (Scotland) Act 1972, s.18A. Lord Hope stated at page 1450E:

"The presumption which section 18A lays down is a statutory requirement. It has the force of law behind it. But it is, in essence, a presumption of fact, and it is with regard to the facts that the judgment has to be exercised. The primary responsibility thus lies with the decision-taker. The function of the court is, as before, a limited one. All the court can do is review the decision …. I do not think that it is helpful in this context, therefore, to regard the presumption in favour of the development plan as a governing or paramount one. The only questions for court are whether a decision-taker had regard to the presumption, whether the other considerations which he regarded as material were relevant considerations to which he was entitled to have regard and whether, looked at as a whole, his decision was irrational. It would be a mistake to think that effect of section 18A was to increase the power of the courts to intervene in decisions about planning control. That section … is addressed primarily to the decision-taker. The function of the court is to see that the decision-taker had regard to the presumption, not to assess whether he gave enough weight to it where there were other material considerations indicating that the determination should not be made in accordance with the development plan."

24. Lord Clyde stated at 1459H as follows:

"Counsel for the secretary of state suggested...that in the practical application of the section two distinct stages should be identified. In the first the decision-maker should decide whether the development plan should or should not be accorded its statutory priority; and in the second, if he decides it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration. But in my view it is undesirable to devise any universal prescription of the method to be adopted by the decision-maker, provided always that he does not act outwith his powers. Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision-maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. In the particular circumstances of the present case the ground on which the reporter decided to make an exception to the development plan was the existence of more recent policy statements which he considered had overtaken the policy in the plan. In such a case as that it may well be appropriate to adopt the two-stage approach suggested by counsel. But even there that should not be taken to be the only proper course. In many cases it would be perfectly proper for the decision-maker to assemble all the relevant material including the provisions of the development plan and proceed at once to the process of assessment, paying of course all due regard to priority of the latter, but reaching his decision after a general study of all the material before him. The precise procedure followed by any decision-maker is so much a matter of personal preference or inclination in light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate."

25. In the South Northamptonshire Council v. Secretary of State for Communities and Local Government [2013] EWHC 11 (Admin), HH Judge Mackie QC held (at para 20) in relation to s38(6) of the 2004 Act that:

"..the section requires not a simple weighing up of the requirement of the plan against the material considerations but an exercise that recognises that while material considerations may outweigh the requirements of a development plan, the starting point is the plan which receives priority. The scales do not start off in even balance."

26. Mr Edwards QC, Counsel for the claimant, placing particular reliance on the above dictum of H.H. Judge Mackie QC, submitted that s.38(6) of the 2004 Act required a planning authority to approach an application in two stages: the first stage (or starting point) being to determine whether the proposal accords with or conflicts with the relevant development plan, thereby ascertaining whether there is a presumption in favour of the proposal or against it; then, only after determining where the presumption lies, the second stage being to consider all other material considerations to decide whether the presumption is outweighed.
27. Mr Edwards pointed to the reasoning of the Inspector in relation to the Original Scheme, which he contended demonstrated the correct two-stage approach, first recognising that the Original Scheme was in conflict with Policy R11, then considering whether the presumption which thereby arose against the Original Scheme was outweighed by other considerations. In contrast, he asserted, the Report started in the wrong place and, as a consequence, failed to give effect to the statutory presumption. Thus he contends that the Report:

a) failed at any point to consider whether the proposal was or was not in conflict with the UDP, in particular Policy R11, and therefore failed to complete the first step of identifying that there was a presumption against granting permission;

b) expressly stated that "the starting point" for consideration of the application "must be" International, UK and Welsh Policy, whereas the proper starting point was the development plan;

c) therefore failed to give the required priority to the development plan.

28. However, the suggestion that a planning authority must adopt a rigid two-stage approach to an application to which s38(6) of the 2004 Act is directly contrary to the authoritative statements of the proper approach in the City of Edinburgh case set out above. Lord Hope emphasised that the only question (in this regard) is whether the decision-taker had regard to the statutory presumption and Lord Clyde stressed that the precise procedure was a matter for the decision-maker and that it was perfectly proper to assemble all relevant material and proceed to the process of assessment, paying due regard to the priority of the development plan but reaching a decision after a general study of all the material.
29. It follows that, in my judgment, there is no prescribed "starting point" for a planning authority's consideration of an application, the question being whether the authority has at some point had due regard to the presumption in favour of the development plan. Indeed, I do not accept that an authority need necessarily (although it usually will) form a concluded view as to whether the proposal under consideration accords with or conflicts with the development plan, it being open to an authority to proceed on the basis that, even if the presumption arises in one direction because of the development plan, any such assumed presumption would be outweighed by other considerations. In my judgment HH Judge Mackie's reference to the plan being "the starting point" was not suggesting a required structure to the decision making process, but rather emphasising that the development plan is to be given priority and is not merely another factor to be put into the balance.
30. In the present case the report contains numerous references to the UDP and in particular policy R11, the fact that the proposal is in conflict with that policy and to the presumption arising from s.38(6). In my judgment there is no doubt that the Report had full proper regard to the development plan and the priority which should be given to its provisions.
31. But in any event, when considered overall and in substance, in my judgment the Report did undertake and present precisely the two-stage analysis proposed by Mr Edwards. In the body of the report there is extensive reference to and significant weight placed on the view of the Inspector that the Original Scheme was in conflict with policy R11 of the UDP, but that such conflict was outweighed by other material considerations, subject only to the issue of harm to the peat habitat. It is at least implicit in the Report's conclusions that the same analysis is applicable and is adopted in relation to the revised proposal under consideration, save that the risk to the peat habitat had been removed. But the matter is put beyond any doubt by the statement in the summary section of the Report that "notwithstanding the weight to be afforded the proposals' conflict with the UDP in terms of its acknowledged significant adverse impact on the landscape, this is outweighed by the Welsh Government's guidance in TAN 8 that significant landscape changes should be accepted in land allocated within Strategic Search Areas for wind farms"
32. Mr Edwards argued that the summary section of the Report should be ignored given its description as a guide to the substance of the Report, not a substitute for it. He contended that, when examined closely, the body of the Report, although referring to the Inspector's analysis of the Original Scheme, did not at any point undertake a similar analysis of the revised scheme, so that the Report failed to reach an independent conclusion on the specific application under consideration. Further, any application of the development plan was defective, he argued, as the key test of Policy R11 was wrongly transcribed (although it was correctly stated in numerous other places in the Report and in the summary).
33. Those contentions, focusing on detailed wording or defects in presentation in the Report rather than on its overall effect, are directly contrary to the approach established by the authorities. In Oxton Farms v. Selby District Council [1997] EWCA Civ 4004, Judge LJ stated that

"The report by a planning officer to his committee is not and is not intended to provide a disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing to case up to the jury.

... In my judgement an application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."

34. In R v Mendip DC ex parte Fabre (2000) 80 P&CR 500, Sullivan J. stated:

" it has to be remembered that they are addressed to the parties who will be well aware of the issues that had been raised in the appeal. They are thus addressed to a knowledgeable readership and the adequacy of their reasoning must be considered against that background. That approach applies with particular force to a planning officer's report to the committee. Its purpose is not to decide the issue, but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large but to council members who, by virtue that membership, may be expected to have substantial local and background knowledge. There would be no point in a planning officer's report setting out in great detail background material, for example, in respect of local topography, development planning policies or matters of planning history if the members were only too familiar with that material …. "

35. In the present case, the Report was full, detailed and presented the issues fully and fairly. Whilst the misquoting of Policy R11 at one point in the Report was unfortunate, as perhaps was the use of the term "starting point" in referring to policies other than those contained in the UDP, neither infelicity in any way detracted from the overall effect of the Report, which was accurately set out in the summary section. The conclusion of Pill LJ in Oxton Farms (above) is equally applicable in the present case:

"In my view the report…was not only comprehensive in its treatment of the facts but sufficiently advised the Committee upon the statutory and policy framework within which the decision was to be taken. The Committee were adequately advised and their decision should stand."

Grounds 2 and 3: whether conditions imposed at the request of DWCC were unlawful

36. The test for the lawfulness of a condition imposed in granting planning permission was summarised by Viscount Dilhorne in Newbury District Council of the Secretary of State for the Environment [1981] AC 578 HL at 599H as follows:

"… conditions imposed must be for a planning purpose and not for any ulterior one, and…they must fairly and reasonably relate to the development permitted. Also they must not be so unreasonable that no reasonable planning authority could have imposed them"

37. On the face of matters, the conditions in issue in the present case appear to satisfy that test in all respect. They were each imposed to deal with planning concerns in relation to the proposal under consideration (and for no other purpose) and, given that they had been requested by the regulatory water undertaker on the basis of cogent reasoning, their imposition cannot be described as irrational.
38. Mr Edwards, however, contends that the requirement that a condition is for a planning purpose entails that a planning authority must be satisfied that the condition is capable of being performed so as to meet the planning issue in question. His argument is that, unless the authority is so satisfied (either by evidence or because it is obvious), it cannot be satisfied that the imposition of the condition is a necessary or reasonable one to impose to give effect to a planning purpose. Mr Edwards further submitted that there was no evidence in the present case that the conditions were capable of fulfilment, and no consideration of that issue.
39. Mr Green, Counsel for the Council, pointed out that there was no authority for the proposition that a condition must be capable of being fulfilled in order for it to be lawful. He relied on the decision of the House of Lords in British Railways Board v. Secretary of State for the Environment [1994] JPL 32 as supporting the contrary proposition. In that case a proposed development depended on access across neighbouring land owned by a third party in circumstances where there was no prospect of the third party granting rights over the land to the applicant. The question arose as to whether the grant of planning permission subject to a condition that construction of the access had commenced was lawful in circumstances where there was no reasonable prospect of that condition being fulfilled. Lord Keith stated as follows:

".. there was no absolute rule that the existence of difficulties, even if apparently insuperable, had to necessarily lead to refusal of planning permission for a desirable development. A would-be developer might be faced with difficulties of many different kinds, in the way of site assembly or securing the discharge of restrictive covenants. If he considered that it was in his interests to secure planning permission notwithstanding the existence of such difficulties, it was not for the planning authority to refuse it simply on their own view of how serious the difficulties were.

... If it was irrational to grant planning permission subject to a condition which had no reasonable prospect of being implemented then it had to be no less irrational to refuse planning permission on the ground that a desirable condition had no reasonable prospect of implementation and therefore could not be imposed. In truth, neither course was irrational. What was appropriate depended on the circumstances and was to be determined in the exercise of discretion of the planning authority. But the mere fact that a desirable condition appeared to have no reasonable prospect of fulfilment did not mean that planning permission must necessarily be refused. Something more was required before that could be the correct result. "

40. Mr Edwards contended that Lord Keith's reasoning did not apply in the present case because that reasoning was in the context of a condition which was unlikely to be fulfilled because of the ownership of land, not because of any difficulty from a planning point of view. He submitted that the position was different if a condition could not be fulfilled in planning terms and so was not capable of meeting the planning issue it was designed to solve. I do not accept such a restrictive reading of the passage, which emphasises that a planning authority has discretion to impose a condition it considers desirable even if there is no reasonable prospect of the condition being fulfilled. Whilst the imposition of a condition which an authority knew could not be fulfilled in practical terms might be a irrational, I see no reason why an authority must have positive evidence that a condition can be met before imposing such a condition if it is otherwise necessary and reasonable for proper planning purposes.
41. In any event, the conditions in question were requested by the statutory water undertaker on the basis that it would not oppose the grant of planning permission if they were imposed by the Council. It is inconceivable that DCWW would have taken such a stance in relation to a matter of such significance to its statutory obligations if it was not satisfied, in its expert opinion, that adequate protective measures were capable of being put in place. Certainly the Council was entitled to take that view and to proceed on the assumption that the conditions could be satisfied. It is not suggested that the issues in question gave rise to any particularly complex or difficult engineering issues.
42. Accordingly I see no merit in either ground two or ground three of the claim.
43. I should record that Mr Edwards also argued that the measures required to be set out in a Construction Method Statement and agreed were not addressed adequately in the Environmental Statement, entailing that the Environmental Statement failed to meet the requirements of the Town and Country Planning (Environmental Impact Assessment) Regulations 1999. However, Mr Edwards accepted that this was not a free-standing ground of challenge and that it could not succeed if his primary argument on grounds 2 and 3, that there was insufficient evidence to justify the imposition of conditions, was unsuccessful. It follows that, on the basis of my findings above, the issue does not arise for decision. I would add, however, that this does not appear to be a case where it could sensibly be argued that the Environmental Statement was so deficient such as not to be an environmental statement at all, so as to found a challenge within the principles set out in R (Blewett) v. Derbyshire CC [2004] Env LR 29.

Conclusion

44. For the reasons set out above the claim is dismissed.