England and Wales High Court (Administrative Court) Decisions

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

		Cardiff Civil Justice Centre 2 Park Street Cardiff CF10 1ET
		09/06/16

Mr Justice Hickinbottom :

1. On 15 January 2014, the Claimant applied to the Second Defendant local planning authority ("the Council") for planning permission to construct and operate five wind turbines with a maximum tip height of 100m, together with ancillary works, on land to the south of the Milford Haven Waterway, in Refinery Road, Hundleston, about 8km west of Pembroke town ("the Site"). The Site is in countryside, but is close to the Valero Oil Refinery, a large scale industrial feature. It is also close to the boundary of the Pembrokeshire Coast National Park ("the National Park"), which runs approximately north-south just to the west of the Site.
2. The statutory development plan for the area including the Site is the Pembrokeshire County Council Local Development Plan ("the LDP"), adopted in 2013. The National Park has its own discrete local development plan, adopted in 2010 ("the National Park LDP"); which has been supplemented by the National Park Authority's Renewable Energy Supplementary Planning Guidance ("the SPG") adopted in 2011. Although not part of the statutory development plan, it is uncontroversial that the SPG was a material consideration for the purposes of the Claimant's application.
3. Paragraph 4.146 of the National Park LDP states:

"The policy framework below provides positive support for renewable energy proposals to take account of the special qualities of the National Park…".

Immediately below that paragraph, Policy 33 provides (so far as relevant to this application):

"Small scale renewable energy schemes will be considered favourably, subject to there being no overriding environmental and amenity considerations. Medium scale schemes also offer some potential and will be permitted subject to the same considerations. Large scale renewable energy schemes will only be permitted where they do not compromise the special qualities of the National Park…".

4. The SPG deals with the effects of proposed renewable energy proposals by reference to landscape character areas ("LCAs"), with an annex to the SPG setting out details of the types of development that, in terms of policy, would or would not be acceptable by reference to each LCA. The relevant LCA for the purposes of the appeal proposal is LCA6, Castlemartin/Merrion Ranges, which covers an area straddling the National Park boundary. In the SPG, LCA6 is one of the few LCAs which are said to have potential for the erection of wind turbines. For that LCA, the SPG provides, under the heading "Overview":

"The large scale of the landscape, the presence of military structures on the skyline and the intrusive sound of gunfire in an otherwise tranquil landscape would indicate that this landscape might be able to accommodate additional manmade structures such as wind turbines. However, its open and wild landscape character, sense of relative remoteness, unsettled nature, long views along the coast, strong archaeological interest and the presence of important habitats supporting a range of wildlife species all pose constraints to the development of turbines and their associated infrastructure."

5. The guidance given in respect of LCA6 includes the following:

"The majority of this LCA is unsuitable for large or medium scale turbines. There may, however, be limited opportunity for a single or a small cluster of medium or large (under 100m to blade tip) scale turbines in land close to existing oil refinery chimneys to provide a new point of focus as long as they are sited sensitively following guidelines below."

A "small cluster" is defined as 2-3 turbines.

6. The Site also falls within the Haven Way Enterprise Zone, based on "existing and potentially new energy sites", including potential tidal energy facilities. Again, it was common ground that it was a material consideration that the Site fell within an Enterprise Zone, although the Council contended that it should be given limited weight because that was not a planning policy.
7. The Site lies 700m from St Decumanus' Church, with an accompanying cross and schoolhouse in its curtilage, a Grade I listed building in Rhoscrowther. Rhoscrowther was a village adversely affected by an explosion at the oil refinery in 1994, which led to its desertion. The church, without the village, no longer functions as a parish church; but is maintained by the Friends of Friendless Churches.
8. The application for planning permission was refused by the Council on 21 January 2015. The Claimant appealed under section 78 of the Town and Country Planning Act 1990. The Welsh Ministers appointed Alwyn Nixon as inspector ("the Inspector"), and transferred the decision-making power on the appeal to him. Following six days of hearings, and accompanied and unaccompanied inspections of the Site, on 4 February 2016, the Inspector dismissed the appeal.
9. On 15 March 2016, the Claimant issued this claim under section 288 of the 1990 Act to quash the Inspector's decision. By an Order sealed on 26 April 2016, Coulson J refused permission to proceed with the claim. The Claimant, through Richard Kimblin QC, now renews that application. He does so on four grounds.
10. The first two grounds can conveniently be taken together. They both concern the manner in which the Inspector approached the SPG. The Inspector dealt with the landscape and visual effects of the proposal, at some length and with some patent care, in paragraphs 27-62 of his decision. At the outset, in paragraph 27, he noted that the Site lies just outside the boundary of the National Park; and that, in considering activities affecting a National Park, Planning Policy Wales requires regard to be had to the statutory purposes of the National Park, whether the relevant activities lie within or outside the designated area. He particularly dealt with the SPG in paragraph 62:

"In considering this issue I have also had regard to the policy framework for consideration of wind energy proposals within the National Park. However, there is nothing in this which assists the appeal proposal. National Park LDP policies first and foremost require decisions to be taken [in] furtherance of the statutory purposes of the Park. In relation to wind energy development, consideration is afforded, in appropriate circumstances, to proposals potentially up to 3MW. The accompanying SPG indicates possible potential for a small cluster of medium or large turbines (i.e. 2-3) on land close to existing oil refinery chimneys. However, the proposal here is for a scheme of 5 turbines, a significantly larger order of development. Moreover, the National Park Authority objects to the proposal, on account of its harm to the Park's special qualities and to National Park purposes." (emphasis added)

11. Mr Kimblin takes particular exception to the italicised words. It was agreed that the SPG was a material consideration, and (he submits) it was wrong for the Inspector to treat it as immaterial. Far from being irrelevant, in accepting the landscape and visual effects of 2-3 turbines in the National Park, the SPG provides reasoned guidance in relation to the promotion of renewable energy technology in the context of protected landscape. The Inspector ought to have assessed the landscape and visual effects of the proposal outside the National Park against the backcloth of an acceptance of the adverse landscape and visual effects of 2-3 turbines inside the National Park. In proceeding as he did, the Inspector erred by concluding that the SPG was of no assistance to the proposal; and that error was compounded by the fact that he proceeded on the basis that the SPG was irrelevant without giving the parties an opportunity to address him on the issue of relevance – the parties otherwise being agreed that the SPG was a material (i.e. a relevant) consideration.
12. However, I am entirely unpersuaded by those submissions, which appear to me to subject the Inspector's decision to the kind of exegetical analysis that is inappropriate in this context. It is trite law that what is required is a fair reading of the decision as a whole. Paragraph 62 of the SPG merely indicates that there is potential for no more than three turbines on land within LCA6, within the National Park, close to the oil refinery. There is nothing there that could logically support a proposal for five turbines outside the Park. As Mr Moules submitted, if the SPG had indicated a potential for up to five turbines within the Park, that might arguably support a proposal for a proposal for five turbines just outside the Park area – but it does not.
13. That does not mean that the Inspector proceeded on the basis that the SPG was irrelevant. In paragraph 62 of the decision, he expressly states that he has had regard to the policy framework for consideration of wind energy proposals within the National Park (i.e. Policy 33 and the SPG). That he found nothing in them which supported the proposal was matter of judgment for him. That is, clearly, not the same as not taking the policy, as a material consideration, into account.
14. The submission that the Inspector failed to give the parties an adequate opportunity to make submissions on the relevance of the SPG is based upon the same false premise, i.e. that the Inspector treated the SPG as immaterial. He did not. He treated it as not supporting the proposal, which is a different matter. Both parties had more than adequate opportunity to make submissions on whether the SPG supported the proposal or not, and the weight that the Inspector ought to give various elements within it; an opportunity which the protagonists, including the Claimant, clearly took.
15. In my judgment, Grounds 1 and 2 are not arguable.
16. As his third ground, Mr Kimblin submitted that the Inspector erred in failing to take account of the fact that the Site fell within an Enterprise Zone. That it did so was uncontroversially a material consideration.
17. However, the Inspector did not fail to take this matter into account. He acknowledged the fact that the Site fell within an Enterprise Zone (see paragraphs 13 and 36 of the decision), but considered that, as the Enterprise Zone was "not a planning policy designation" (i.e. had no planning status), and there was "no linkage between the proposal and the Enterprise Zone initiative". In those circumstances, he was unarguably entitled to give no weight to the designation.
18. Fourth and finally, Mr Kimblin submitted that the Inspector erred in finding that the proposal would cause "substantial harm" to the setting of St Decumanus's Church, cross and schoolhouse, because he failed to follow and apply the high test for "substantial" as set out in Bedford Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 2847 (Admin) ("Bedford"), i.e. the significance of the church etc as a heritage asset would be vitiated altogether or, at least, very much reduced. Mr Kimblin now seeks to pursue this ground on two fronts. He submits that the Inspector failed to identify the significance of the heritage asset, and in any event he failed to apply this high test.
19. With regard to the first limb, the Inspector found that the development would have no direct physical effect on any designated heritage site, the effects on such sites concerning effects on the settings of such assets (paragraph 68 of his decision), which he then considered in turn. Mr Kimblin takes exception to that approach. He submits that, whilst part of the significance of St Decumanus's church as a heritage site lies in its setting, part of its significance lies in the fact that (e.g.) it is one of only two churches dedicated to that saint. The Inspector failed properly to consider the significance upon which the proposal would or might have an adverse effect.
20. However, as Mr Moules submitted, the whole thrust of the Claimant's case before the Inspector was that the setting was key to the church's significance; and, the Claimant contended, the historical value of the church within its setting would be unaffected by the proposed development (see, e.g., paragraphs 35 and 43 of the Claimant's closing submissions to the Inspector). It was that case to which the Inspector was responding, when he found that the adverse impact of the proposal on the church's setting would have adversely affect its significance as a heritage asset. The Inspector did not arguably err in approaching the matter thus, and concluding as he did conclude.
21. Finally, as to the second limb of this ground, Mr Kimblin submits that, having identified the heritage significance and the adverse effect of the proposal upon it, the Inspector erred in finding that the proposal would cause "substantial harm" to that significance. In particular, he erred in not applying the very high test for "substantial harm" in this context as it was held to be by Jay J in Bedford at [26], i.e. a requirement that the proposal would mean "something approaching demolition or destruction" of the significance of the relevant heritage asset.
22. This ground gave me more pause for thought; but I have concluded that it too is unarguable. In Bedford, Jay J was construing paragraphs 131-134 of the National Planning Policy Framework ("the NPPF"), under which, where a proposed development will lead to "substantial harm to or total loss of significance of a designated heritage asset", there is a presumption against granting planning consent. The inspector in that case had adopted a test of "something approaching demolition or destruction" of the significance. Jay J indicated that, in his view, that might be too high a test of seriousness (see [26]); but, on the facts of the case before him, the relevant inspector did not materially err.
23. Leaving aside the extent to which Jay J endorsed the test for which Mr Kimblin contends – and I am far from persuaded that he endorsed it to the extent that Mr Kimblin would have it – the point is answered by the fact that the NPPF does not apply in Wales. Planning is a devolved function, and Wales has its own discrete and independent planning system, soon to be reinforced by the implementation of the Planning (Wales) Act 2015 enacted by the National Assembly of Wales. The relevant policy in Wales is not the NPPF, but Planning Policy Wales which is silent upon "substantial harm" in this context. It wrong to assume that the term means the same in the context of planning policy in Wales as it does in England; especially because in England, unlike in Wales, substantial harm triggers a presumption against grant of permission. In Wales, the degree of harm assessed by the relevant authority – in this case, the inspector – is merely one matter which goes into the planning balance. That is exactly how the Inspector used the term and concept of substantial harm, simply as a relevant factor in the planning balancing exercise, which was a matter of judgment for him. The Inspector did not arguably err in doing so. He did not arguably determine this irrationally – but rather set out his reasoning in some detail (in paragraphs 63-75 of the decision), finding that the turbines would have "a pervasive presence" and perceived from the churchyard as a prominent and distracting feature – such that there would be a substantial level of harm to the setting of the Grade 1 listed building. That is a matter he properly took into account in concluding that permission should not be granted.
24. For those reasons, like Coulson J, I consider the grounds essentially to be a challenge to the merits of the decision, rather than a challenge in law. None of the grounds is arguable; and I refuse the application to pursue the section 288 application.