England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 April 2016

Mr Justice Supperstone :

Introduction

1. There are two challenges to the grant of planning permission by the Defendant Council ("the Council") to Teddington and Ham Hydro Co-operative Ltd ("the Applicant") on 17 September 2015 for a 3-turbine electricity generation facility at Teddington Weir, Teddington Lock, Teddington. The planning permission is for the following development:

"Demolition of section of weir; installation of 3 reverse engineered archimedean screw turbines to generate hydroelectricity. New Fish and Eel passes, sluice gate, cable routes to substation. Adapt maintenance access to that section of weir; plant room to be constructed on walkway."

2. Lensbury Ltd ("Lensbury") is the leasehold owner of land and buildings on the north, eastern and south-western sides of Broom Road, Teddington, London, upon which it operates The Lensbury which provides leisure club, conference, hotel and events facilities. The garden and parkland of The Lensbury run from the main building complex towards the River Thames.
3. The Lensbury and the site of the proposed development fall within the Teddington Lock Conservation Area, within designated Metropolitan Open Land, within the Thames Policy Area, and within the setting of a number of statutory listed buildings.
4. Pinenorth Properties Ltd ("Pinenorth") has an interest in the land at Broom Road, Teddington Studios ("Teddington Studios"), which is located to the south-west of the existing weir and the application site. Teddington Studios was granted planning permission on 9 December 2014 for the construction of 213 residential flats, 6 three-storey houses and the re-development of Weir Cottage for residential purposes. Pinenorth intends to re-develop Teddington Studios in accordance with the planning permission.
5. Permission was granted in both claims by Lang J, who ordered that they be heard together.

Factual Background

6. On 29 November 2011 Ham Hydro Community Interest Company ("Ham Hydro") submitted an application to the Council for planning permission for a similar development for a 3-turbine scheme as permitted by the planning permission under challenge in these proceedings. Prior to that application, Ham Hydro made a request dated 16 February 2011 for a Screening Opinion under regulation 5 of the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, which were then in force. That request led to a screening opinion dated 23 February 2011. The opinion recorded that the proposal concerned 4 turbines designed to generate 0.532MW. As it involved production which exceeded the threshold of 0.5MW it was a Schedule 2 development. However the Council considered that the proposed development would not have significant effects on the environment and that an Environmental Statement was not therefore required.
7. The previous planning application was withdrawn on 9 September 2014.
8. The current application was submitted on 2 September 2014. It came before the Council's Planning Committee ("the Committee") on 15 April 2015. The report to Committee ("the First Report") included the following 'Summary of Application':

"The proposal has been considered in the light of the Development Plan, comments from statutory consultees and third parties. It has been concluded that, subject to conditions to protect environmental (including biodiversity) and local concerns, including wider heritage assets and noise and disturbance, there is not sufficient or significant harm to interests of acknowledged importance caused by the development that justifies withholding planning permission.

The proposal has not been found to cause an increase in flood risk irrespective of whether or not proposed strategic flood risk schemes go ahead.

RECOMMENDATION: PERMISSION."

9. The minutes of the Committee meeting record:

"… Members considered a range of matters during their deliberations including the location and ecology of the application site. The committee was not minded to approve the application based on the officer's report and recommendation. The appearance of the proposed installation was considered and this was deemed to be an insufficient reason for refusing the application. Concerns about future flooding were also considered and dismissed as a reason for refusal by the committee, particularly as the Environment Agency had stated that the proposed hydroelectric installation would not increase the flood risk in the area.

The committee considered whether there was enough information being provided about the proposed noise mitigation scheme. It was noted that this application affected a sensitive area where there was already a relatively noisy industrial installation (weir). This, in the committee's opinion, made judging whether the proposed turbines would add to the noise in the area, when measured at various distances and positions, more difficult. It was ultimately decided that there was not enough information to approve or reject the application on noise grounds at this stage.

RESOLVED that further consideration of this item be deferred to a future meeting of the committee for the following reason:

'The committee did not feel that enough information was presented in the proposed noise mitigation scheme, as alluded to in proposed condition NSO2'."

10. The application returned to the Committee on 16 September 2015. A report prepared for this Committee meeting ("the Second Report") included a 'Summary of Application' in the following terms:

"The original report is set out in appendix 'A'.

The application was considered by the planning committee at its meeting on the 15^th April where it was RESOLVED that consideration of this item be deferred to a future meeting of the committee for the following reason:

'The committee did not feel that enough information was presented in the proposed noise mitigation scheme, as alluded to in the proposed condition NSO2.'

Further information has been submitted for consideration. This is considered to reinforce the original recommendation.

There has been no other material change in circumstances or substantive new issue raised since the meeting of 15^th April.

RECOMMENDATION: PERMISSION."

11. The minutes of the Committee meeting record:

"…The committee discussed the acceptability of the application in terms of noise, as other matters had been decided upon during the meeting held on 15 April 2015, with there being no new planning issues of any significance having subsequently arisen. It was generally considered that noise could not be used as a reason for refusal as it could not be sustained on appeal of the committee's decision. The committee felt that the proposed conditions safeguarded residents and other nearby establishments, although a concern was raised over how feasible it would be for the applicant to comply with them. It was also felt by many of the members who attended the site visits to Teddington and Romney that, in practice, the level of additional noise caused by such turbines was negligible and not audible a short distance away from the installation.

RESOLVED that the application be approved, subject to the conditions and informatives in the officer's report."

Grounds of Challenge

12. There are five grounds of challenge to the Council's decision.
13. Mr Christopher Lockhart-Mummery QC, on behalf of Lensbury, advances three grounds of challenge:

i) The Council failed to comply with the duty under s.38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") (Ground 1).

ii) The Council failed properly to consider the impacts of the proposed development on heritage assets (Ground 2).

iii) The Council failed to screen the planning application under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 ("the 2011 Regulations") (Ground 3).

14. Mr Richard Turney, on behalf of Pinenorth, in his written submissions advances three grounds of challenge:

i) The grant of planning permission was unlawful in that it was granted in breach of the requirements of the 2011 Regulations. The Council failed to screen the application to decide whether or not the proposal was for EIA development.

This is the same ground as Mr Lockhart-Mummery's third ground.

ii) The determination of the application was procedurally unfair and the Council failed to have regard to material considerations because it limited its consideration to matters relating to noise (Ground 4).

iii) Condition NSO1 imposed on the grant of planning permission in relation to noise is unlawful and members were misled as to its effect (Ground 5).

In addition Mr Turney associated himself with the submissions made by Mr Lockhart-Mummery on Grounds 1 and 2.

15. I shall deal with each ground of challenge in turn.

Ground 1: failure to comply with s.38(6) of the Planning and Compulsory Purchase Act 2004

The Legal Framework

The 2004 Act, s.38(6)

16. Section 38(6) of the 2004 Act provides that:

"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."

17. The relevant legal principles are not in issue.
18. In City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, Lord Clyde stated at 1459 (in relation to the Scottish version of s.38(6) of the 2004 Act):

"In the practical application of section 18A it will obviously be necessary for the decision maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it…

… in my view it is undesirable to devise any universal prescription for the method to be adopted by the decision maker, provided always of course 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. … 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."

19. In Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, Lord Reed stated (at para 22):

"Where it is concluded that the proposal is not in accordance with the development plan, it is necessary to understand the nature and extent of the departure from the plan which the grant of consent would involve in order to consider on a proper basis whether such a departure is justified by other material considerations."

(See also R (Hampton Bishop Parish Council) v Herefordshire Council [2015] 1 WLR 2367 at para 33, per Richards LJ).

20. Recently in Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 2489 (Admin) Patterson J stated (at para 27):

"It is axiomatic that the decision maker does not have to deal with each and every policy that has been raised by the parties during an appeal. That is not the Claimant's case. Rather, it is submitted a finding of compliance or conflict with the development plan and the basis for it needs to be made so that the decision maker can proceed to undertake the planning balance in an informed way. I agree. Such a step is not just form. Rather, it is an essential part of the decision-making process, so that not only the decision maker but also the reader of the Decision Letter is aware and can understand that the duty imposed under section 38(6) has been discharged properly by the decision maker."

21. The judge added (at para 30) that the decision maker has to make a decision on the right basis:

"That does not mean a mechanistic approach of judging the proposals against each and every policy that may be prayed in aid of a development or against it, but an evaluation of main policy areas within the development plan that are relevant to the proposal to be determined and an assessment of how the proposal [fares] against them. That can be shortly stated and the process to be followed is for the individual decision maker. But it needs to be clear at the culmination of the decision-taking process what the eventual judgment is against the development plan as a whole. Only by carrying out that exercise can the next step of evaluating the planning balance be properly undertaken."

22. An overall conclusion that the development proposed is in accordance with the development plan can be implied from a fair reading of a decision letter as a whole (see Dartford BC v Secretary of State for Communities and Local Government [2014] EWHC 2636 (Admin), per Patterson J at paras 39-42; Gill v Secretary of State for Communities and Local Government [2015] EWHC 2660 (Admin), per Rhodri Price-Lewis QC, sitting as a deputy High Court Judge, at paras 22-24; and R (Kverndal) v LB Hounslow [2015] EWHC 3084 (Admin) at paras 63-64; and see also Hampton Bishop Parish Council at paras 41-42).

Development Plan Policies

The London Plan

23. Policy 7.4 Local Character states (at A) that development "should improve an area's visual or physical connection with natural features". Further, in relation to planning decisions,

"B Buildings, streets and open spaces should provide a high-quality design response that:

…

(b) contributes to a positive relationship between the urban structure and natural landscape features, including the underlying land form and topography of an area."

24. Policy 7.8 deals with Heritage Assets (and Archaeology). It states that

"C Development should identify, value, conserve, restore, re-use and incorporate heritage assets, where appropriate.

D Development affecting heritage assets and their settings should conserve their significance, by being sympathetic to their form, scale, materials and architectural detail."

25. Policy 7.17 deals with Metropolitan Open Land. It provides, in relation to planning decisions, that

"B The strongest protection should be given to London's Metropolitan Open Land and inappropriate development refused, except in very special circumstances, giving the same level of protection as in the Green Belt. Essential ancillary facilities for appropriate uses will only be acceptable where they maintain the openness of MOL."

26. In the supporting text at para 7.56 it is stated that the policy guidelines of paragraphs 79-92 of the NPPF on Green Belts apply equally to MOL. Appropriate development should be limited to small-scale structures to support outdoor open space uses and minimise any adverse impact on the openness of MOL.

The Defendant's Core Strategy

27. Policy CP10 applies to open land and parks, including Metropolitan Open Land, which are to be "safeguarded and improved for … heritage, and for visual reasons". Policy CP11 River Thames Corridor provides that the natural and built environment and the unique historic landscape of the River Thames corridor "will be protected and enhanced", and the special character of identified reaches of the river respected.

The Council's Development Management Plan 2011

28. Policy DM HD 1 deals with conservation areas. It provides that

"New development (or re-development) or other proposals should conserve and enhance the character and appearance of the area."

29. There are 72 conservation areas within the Borough. It is noted that "the Council has a statutory duty to preserve and enhance these areas through its policy-making and planning powers" (para 4.3.2). It is stated (at para 4.3.4) that:

"It is particularly important that any scheme not only preserves but positively enhances the Conservation Area."

30. Policy DM OS 2 provides, in relation to Metropolitan Open Land, as follows:

"The borough's Metropolitan Open Land will be protected and retained in predominantly open use. Appropriate uses include public and private open spaces and playing fields, open recreation and sport, biodiversity including rivers and bodies of water and open community uses including allotments and cemeteries.

It will be recognised that there may be exceptional cases where appropriate development such as small-scale structures is acceptable, but only if it:

1. Does not harm the character and openness of the metropolitan open land; and

2. Is linked to the functional use of the Metropolitan Open Land or supports outdoor open space uses; or

3. Is for essential utility infrastructure and facilities, for which it needs to be demonstrated that no alternative locations are available and that they do not have any adverse impacts on the character and openness of the metropolitan open land.

Improvement and enhancement of the openness and character of the Metropolitan Open Land and measures to reduce visual impacts will be encouraged where appropriate."

The First Report for the meeting on 15 April 2015

31. The report lists the main development plan policies (and refers to Core Strategy Policy CP10 at paras 2 and 42). The Summary of Application is set out at para 8 above. Under the heading "Locational Designations" the officers state as follows:

"42. The River Thames is designated Metropolitan Open Land (MOL) and as such Core Strategy policy CP 10, DMP policy DM OS 2 apply. In addition, the site is within the Teddington Lock Conservation Area, designated as Other Site of Nature Importance and falls within the Thames Policy Area as well as high risk flood zone (flood zone 3).

43. Teddington Weir is a prominent structure within the River Thames and the existing landscape, recognised within the Thames Landscape Strategy along with the lock and footbridge as the main focus of activity and interest in this reach. The section of the weir to be used for the hydro power scheme was constructed in 1991-92. The proposal is to construct a hydropower installation (three Archimedean screw turbines) within the existing Teddington weir to generate electricity. This requires the demolition of this section of the weir (consisting of two fixed crest weirs, two radial gates and two fish passes).

44. From a MOL perspective, this proposal is considered to be a replacement structure, whereby one engineering solution is replaced by another one. The overall scale of the structure is comparable with the adjoining large roller sluice gates. The screws will be mainly below the top of the river wall, whilst the shafts will extend up to a higher level (above the projected maximum flood level), where the generator platform and walkway will be situated.

45. In line with MOL policies, there is a presumption against inappropriate development, and building development is generally unacceptable. MOL policies however recognise that there may be exceptional cases where appropriate development, such as 'small scale structures', is acceptable. Whilst not in itself a small structure, this proposal is for a replacement structure of an existing engineering component within the wider context of the weir, it does not involve a change of use as such and is functionally linked to the river, it is considered that this proposal is in line with MOL policies.

46. The proposals clearly have a visual impact on a sensitive section of the riverside, with views from and to listed structures, particularly the footbridge.

47. The overall scale is within that of the lock structures generally and the arches incorporated into the design and general indication of materials relate it visually to the existing main structure. As such it is not considered that the visual impact is generally negative. In the key view from the footbridge the turbines would add an element of visual interest and its overall design again is seen to be in character with the operational infrastructure which itself forms a key characteristic of the riverside conservation area. As a consequence it is not considered to compromise heritage assets, registered or otherwise, within their immediate or wider context, as has been suggested or the objectives set out in the Thames Landscape Strategy.

48. The need for an acceptable exposition of balancing benefits in order to balance such highly adverse impact would only arise if the premise that there was such a highly adverse impact was accepted. The proposal is seen as acceptable in its own right and not dependent on a required level of 'green' measures or alternative benefits."

Discussion

32. Mr Lockhart-Mummery submits that there is no reasoned finding in either Committee Report to the effect that the development complied with the development plan. The Summary of Application in the First Report merely states that "the proposal is being considered in the light of the Development Plan". Further, in neither of the minutes of the meetings of the Planning Committee is there any reference to consideration of the development plan, let alone an assessment of compliance with it. Indeed there is no reference to s.38(6) or the gist of its terms in either Committee Report or in either of the minutes.
33. Further, Mr Lockhart-Mummery suggests there is no reference in either Committee Report to the following: (i) the London Plan at all; (ii) Policy CPL in the Core Strategy; and (iii) policies DM HD 1 and DM OS 11 in the Development Management Plan. He further suggests that the instances where "small-scale structures" in policy DM OS 2 are permitted are not addressed in either Committee Report.
34. Mr Kolinsky submits that the absence of any express reference to s.38(6) is immaterial. It is obvious, he contends, that the officers' reports concluded that the development was in conformity with the development plan. I agree.
35. In his analysis of the First Report Mr Kolinsky emphasised the following:

i) The relevant provisions of the London Plan, the Core Strategy and the Development Management Plan were identified (although I think, he accepted, there was no express reference to CP11 in the Core Strategy).

ii) The site was identified as within the Teddington Lock Conservation Area, and it was noted that "the local character of the area is clearly formed by the river and its extensive riverside infrastructure, including the weir and lock".

iii) Visual representations of the proposed development (comparing before and after) from Ham Bank and Teddington Bridge were produced.

iv) Consultation responses received in respect of the application were set out in some detail. On the one hand, the general consensus from representations in support was that "this is a highly sustainable form of development which will benefit the local community without causing harm to the local character or local amenity"; on the other, representations opposed raised concerns "in particular to the visual impact of the proposal and impacts and on noise pollution". It was noted that the nature and form of the proposal would have a significant adverse impact on heritage assets including the conservation area, the two listed foot bridges and the club itself as a non-designated heritage asset.

36. Conclusion/summaries of reports commissioned by The Lensbury, set out at para 21 of the First Report, include the following:

"The applicant has failed to assess properly the significance and heritage values of the conservation area and the designated and non-designated heritage assets within it.

The development proposal has not been informed by an understanding of the significance of heritage assets: their evidential, historical, aesthetic and communal value.

The proposal causes 'less than substantial harm' to the character and settings of heritage assets, both designated and non-designated.

The proposal causes 'less than substantial harm' by the demolition of part of the existing weir structure, which has not been properly assessed as to its contribution to the appearance and character of the Conservation Area.

The new hydro structure does not make a positive contribution to the character and local distinctiveness; there is no demonstration that the proposal preserves or enhances the Conservation Area or the setting of the designated and undesignated heritage assets.

The proposal will have a detrimental impact on the enjoyment, use and interpretation of the significance of the Lensbury and its grounds.

The proposal involves the demolition of non-designated heritage assets within the conservation area that is part of the existing sluice but also obscures from key views the existing distinctive arched structure to the roller sluices. The views from the grounds and setting of the Lensbury Club, itself a non-designated heritage asset, are detrimentally affected by the new structure.

…

… The new structure prevents the appreciation of the nature of the heritage assets, which include views across the Thames to the leafy expanse on the opposite bank, which is expressive of the spatial qualities and topographical character of the river.

…

There is no acceptable exposition of balancing benefits that have been provided by the applicants in order to balance such highly adverse impact."

37. Mr Kolinsky submits that the officers' assessment of the proposal is to be read against the background of the representations received and the matters highlighted as material in introductory sections of the report. That assessment dealt with material planning issues, he submitted, as follows. First, the "concept" of energy generated from renewable sources is in line with National Policy and also consistent with the Council's Development Framework (para 41). Second, it was noted that "Teddington Weir is a prominent structure within the River Thames and the existing landscape, recognised within the Thames Landscape Strategy along with the lock and footbridge as the main focus of activity and interest in this reach" (para 43). Third, it was acknowledged that in line with MOL policies, there is a presumption against inappropriate development, and building development is generally unacceptable. It was noted that MOL policies recognise that there may be exceptional cases where appropriate development, such as "small-scale structures" is acceptable. Whilst not in itself a small structure, it was considered that "this proposal was for a replacement structure of an existing engineering component within the wider context of the weir, it does not involve a change of use as such and is functionally linked to the river"; as such the proposal was considered to be in line with MOL policies (para 45). Fourth, it was acknowledged that the proposals clearly have a visual impact on a sensitive section of the riverside, with views from and to listed structures, particularly the foot bridge (para 46). Fifth, the assessment concluded that the relationship was acceptable in heritage terms (paras 47 set out in full at para 31 above).
38. Mr Kolinsky acknowledges that the assessment in paragraph 47 is concise but, he submits it is none the worse for that. That paragraph must be read in the context of the report as a whole. The report is addressed to a "knowledgeable readership" who may be expected to have a substantial local and background knowledge, in particular in this borough of conservation areas and heritage sites (see R v Mendip District Council ex parte Fabre [2000] 80 P&CR 500 at 509, per Sullivan J). That background knowledge includes "a working knowledge of the statutory test" for determination of a planning application (Oxton Farms, Samuel Smith's Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106 106, per Pill LJ).
39. Mr Kolinsky submits that it is clear from reading the report as a whole that the officers appreciated what the important planning issues were in this case, what the relevant policies were and did not misunderstand them (South Somerset District Council v Secretary of State for the Environment (1993) 66 P&CR 83 at 85, per Hoffmann LJ).
40. It seems to me that the officers did correctly identify the principal policies which informed their assessment of the material planning issues in relation to the application. Further, it appears that they properly understood those policies. Mr Lockhart-Mummery contends that policy DM HD 1 (see para 28 above) contains a "quite distinct policy requirement" from the statutory test for assessing the relationship of proposals with heritage assets. I do not accept this submission. I agree with Mr Kolinsky that the supporting text suggests that the plan conveys expectations of the quality of the design of the overall development within conservation areas. I further agree with Mr Kolinsky that when the policy is read correctly, a proposal which would "add an element of visual interest" and has an "overall design" in character with "the operational infrastructure" of Teddington Weir does not conflict with it.
41. I consider that the First Report engaged with the statutory and key policy requirements concerning the impact on heritage assets. Core strategy CP11 was not referred to, but the impact of the proposal was assessed with regard to the Thames Landscape Strategy. Importantly, the relationship of the site to the character of the river itself and its status of MOL was addressed in the officers' assessment.
42. Following their assessment, the officers concluded that the development is "not considered to compromise heritage assets, registered or otherwise, within their immediate or wider context, as has been suggested or the objectives set out in the Thames Landscape Strategy" (para 47). The impacts were acceptable. That being so, as the officers observed, and as Mr Kolinsky in my view correctly submits, the need to consider the extent to which benefits balance adverse impact does not arise (para 48).
43. For the reasons I have given Ground 1 is not made out.

Ground 2: failure lawfully to consider the impacts of the proposed development on heritage assets

The Statutory and Policy Framework

44. Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the 1990 Act") provides:

"(1) In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses."

45. Section 72 of the 1990 Act provides:

"(1) In the exercise, with respect to any buildings or other land in a conservation area, of any of the provisions mentioned in sub-section (2), special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area.

(2) The provisions referred to in sub-section (1) are the planning Acts …"

46. A finding of harm to the setting of a listed building is a consideration to which the decision-maker must give "considerable importance and weight" (The Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303, per Glidewell LJ at 1319; and see East Northamptonshire District Council v Secretary of State for Communities and Local Government [2015] 1 WLR 45, per Sullivan LJ at paras 22-23 and 29).
47. The relevant policies of the NPPF are paragraphs 128-135, the material parts of which provide:

"128. In determining applications, local planning authorities should require an applicant to describe the significance of any heritage assets affected, including any contribution made by their setting. The level of detail should be proportionate to the assets' importance and no more than is sufficient to understand the potential impact of the proposal on their significance…

129. Local planning authorities should identify and assess the particular significance of any heritage asset that may be affected by a proposal (including by development affecting the setting of a heritage asset) taking account of the available evidence and any necessary expertise…

…

131. In determining planning applications, local planning authorities should take account of:

the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation; …

132. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset's conservation. The more important the asset, the greater the weight should be. …

133. Where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, local planning authorities should refuse consent, unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss, or all of the following apply: …

134. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use.

135. The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining the application. In weighing applications that affect directly or indirectly non-designated heritage assets, a balanced judgment will be required having regard to the scale of any harm or loss and the significance of the heritage asset."

48. The standard of reasons required in relation to sections 66 and 72 of the 1990 Act is no higher than that laid down by the House of Lords in Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153, and South Bucks District Council v Porter (No.2) [2004] 1 WLR 1953. In Jones v Mordue and Secretary of State for Communities and Local Government [2015] EWHC 539 (Admin), Sales LJ (at para 28) stated:

"… Paragraph 134 of the NPPF appears as part of a fasciculus of paragraphs … which lay down an approach which corresponds with the duty in section 66(1). Generally a decision maker who works through those paragraphs in accordance with their terms will have complied with the section 66(1) duty. When an expert planning inspector refers to a paragraph within that grouping of provisions… then – absent some positive contra-indication in other parts of the text of his reasons – the appropriate inference is that he has taken properly into account all those provisions, not that he has forgotten about all the other paragraphs apart from the specific one he has mentioned."

49. The Council's Conservation Area Statement in relation to Teddington Lock Conservation Area 27 refers to "Teddington Lock, the noisy weir and the suspension footbridge" as "key landmark features, also allowing for wide views up and downstream".

The First Report

50. It was noted that the site is within the Teddington Lock Conservation Area and the relationship of the site to the surrounding heritage assets, including the listed Teddington footbridges was noted (paras 2 and 3).
51. Representations as to the adverse effect of the proposal on nearby heritage assets were summarised (see para 12-36). The assessment of the officers was that the proposal did not "compromise heritage assets, registered or otherwise, within their [immediate] or wider context, as has been suggested or the objectives set out in the Thames Landscape Strategy" (para 47). The reason for this conclusion is stated to be that "it is not considered that the visual impact is generally negative. In the key view from the footbridge the turbines would add an element of visual interest and its overall design again is seen to be in character with the operational infrastructure which itself forms a key characteristic of the riverside conservation area" (para 47).
52. Under "Problems and Pressures" there is reference to "Development pressure which may harm the balance of the river and landscape-dominated setting, and the obstruction or spoiling of views, skylines and landmarks".
53. The proposal was seen as "acceptable in its own right" (para 48).

Discussion

54. Mr Lockhart-Mummery submits that the Council failed to comply with its statutory and policy requirements in relation to heritage assets. The leading consideration, Mr Lockhart-Mummery suggests, in paragraphs 46 and 47 of the First Report is the visual impact. There is no reference to heritage assets in the minutes of the two Committee meetings. The officers did not assess the significance of any heritage assets affected, including in particular the conservation area and the listed footbridge. Further they gave no "special attention", or even any consideration, to whether the development preserves or enhances the character or appearance of the area (section 72), or preserves the footbridge or its setting (section 66). Further, Mr Lockhart-Mummery contends, there is no evidence that the Council's Conservation Area Statement was taken into account. That being so the Council has failed to have proper regard to the available evidence, which would include that Statement, as required by paragraph 129 of the NPPF. No request was made of the Applicant to describe the significance of the heritage assets affected, as required by paragraph 128 of the NPPF, and the Council did not obtain its own advice on the matter.
55. There was, Mr Lockhart-Mummery submits, a complete failure to consider the significance of the heritage assets affected. The Council had failed to undertake the assessment required by paragraph 135 of the NPPF. In this regard Mr Lockhart-Mummery relied on the analysis of Lindblom LJ in the recent case of Suffolk Coastal DC v Hopkins Homes Ltd [2016] EWCA Civ 168 at para 60. At para 65 Lindblom LJ concluded that "What is lacking, however, is a distinct and clearly reasoned assessment of the effect the development would have upon the significance of the parkland as a 'heritage asset', and, crucially, the 'balanced judgment' called for by paragraph 135, 'having regard to the scale of any harm or loss and the significance of the heritage asset'." Mr Lockhart-Mummery submits that this observation applies equally in the present case.
56. Mr Lockhart-Mummery submits that it appears to be accepted that harm is caused to heritage assets. In support of this contention he relies on paragraph 47 of the report which states that the visual impact is not considered "generally negative"; and the overall conclusion in paragraph 48 that the impact is not "highly adverse" and the Summary of Application that states "there is not sufficient or significant harm to interests of acknowledged importance". Mr Lockhart-Mummery observes that the term "compromised" is not seen in either the statutory or the policy test; and he suggests that it would appear to be consistent, though he accepts he is speculating here, with there being a degree of harm but less than substantial.
57. Mr Kolinsky responds that this submission shows that Ground 2 proceeds on a mistaken basis. The Council did not accept that the proposed development would have an adverse impact on heritage assets. Accordingly the present case is very different from Suffolk Coastal DC.
58. I agree with Mr Kolinsky that on a fair reading of paragraph 47 of the report that what is being said is that in the judgement of the officers there would be no harmful impact on the conservation area or the listed footbridges for the reasons given: "In the key view of the footbridge the turbines would add an element of visual interest and its overall design again is seen to be in character with the operational infrastructure which itself forms a key characteristic of the riverside conservation area". That being so there is no need for "an acceptable exposition of balancing benefits in order to balance such highly adverse impact" (para 48), as in Suffolk Coastal DC. The proposal in the present case is considered to be acceptable in its own right and not dependent on a required level of "green measures" or "alternative benefits" (para 48).
59. I am satisfied that the relationship of the proposal with the adjoining heritage assets was properly addressed in the First Report; the assessment of the relationship was a planning judgment for the Council to take; and the conclusion of the Council that the proposed development would have no harmful impact on heritage assets is, on a fair reading of the report, clear. The reasons given by the Council are comprehensible and sufficient.

Ground 3: failure to undertake lawful EIA screening

60. The issue here is whether the proposed development fell within Schedule 2 of the 2011 Regulations.

The Legal Framework

61. The requirements of the EIA Directive (Directive 2011/92/EU) are incorporated in national law in the 2011 Regulations.
62. Regulation 7 provides:

"7. Applications which appear to require screening opinion

Where it appears to the relevant planning authority that—

(a) an application which is before them for determination is a… Schedule 2 application; and

(b) the development in question has not been the subject of a screening opinion or screening direction; and

(c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations,

paragraphs (4) and (5) of Regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1)."

63. Regulation 5(1) provides:

"A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion."

64. Column 2 in the table in Schedule 2 sets out thresholds and criteria for identifying development which should be subject to environment impact assessment. So far as installations for hydroelectric energy production are concerned, the relevant threshold is:

"The installation is designed to produce more than 0.5 megawatts."

Discussion

65. Mr Lockhart-Mummery and Mr Turney submit that the Council could not properly conclude, on a proper understanding of the evidence, that the development did not meet the threshold. Further, if it were in any doubt on this matter, it should have exercised the "precautionary principle" on which Directive 2011/92/EU is based (Recital (2)).
66. The material before the Committee at the April meeting included the following:

i) The noise assessment of Peter Brett Associates LLP ("PBA") submitted with the planning application which states under the heading "Proposed Scheme":

"It is understood that the anticipated overall power generation is approximately 168kw of power output per turbine, with a total of 500kw estimated from the overall installation" (paragraph 1.3.3).

ii) The Applicant's Statement of Consultation dated 1 September 2014, which in the list of consultees at Appendix 1 refers to "LV Transformer Provider/Installer" as the stakeholder with the following interest:

"Required to have a 1.2 MVA transformer to feed onto HV network (the grid)."

iii) A letter dated 14 April 2015 from Howes Percival, Lensbury's solicitors, enclosing a technical opinion from Mr Paul Johannsen of Thames Renewables, dated 13 April 2015. Mr Johannsen's conclusion is that:

"The proposed development should have been based on the Total Installed Capacity (TIC) of the proposed hydroelectric development which would have concluded the proposed development has an output of greater than 558kw and up to 630kw. This would also attract the lower tariff rate and confirm that an EIA is required."

iv) An email dated 19 February 2015 from Mr Derek Tanner (the Council's planning officer who was the principal author of the reports to Committee in April and September 2015) to Mr Steve Jarvis of the Applicant, which asked him whether he was "able to confirm whether or not the energy output of the current proposal is designed to exceed 0.5MW". The email reply from Mr Jarvis, the following day, was: "No. It's 492kw". (See Addendum Report to Committee of April 2015).

v) The manufacturer's quotation for the proposed plant supplied by the Applicant to the Council.

67. Mr Lockhart-Mummery and Mr Turney submit that the Council's contention that the quotation for the proposed plant shows the maximum generating capacity to be 492kw is plainly incorrect. The stated "screw output" of each screw is 182kw, making a total of 546kw for three screws. The plant proposed for the site is stated to comprise two 3-phase asynchronous generators, each of nominal rating of 200kw and one Siemens asynchronous generator of nominal rating of 250kw, making a total of 650kw.
68. I accept Mr Kolinsky's submission that the question is how much electricity the scheme will generate. In a witness statement dated 4 February 2016 Mr Tanner explains the reasons for his conclusion that this is not a Schedule 2 development. The developers specifically confirmed a maximum generating capacity of 492kw on the actual power output on the revised scheme (para 5). In addition he was provided with details from the manufacturer which confirmed that this was correct. At paragraphs 6 and 7 of his statement he explains why the opinion of Thames Renewables did not persuade him to the contrary:

"6. The letter dated 13.04.15 from Thames Renewables submitted to the Council shortly before the April 2015 committee meeting is in conflict with the information submitted by the planning applicants. This letter consists of two pages with the first page and part of the second dealing with background information regarding tariffs and various general technical points. In the second paragraph on the second page, under the heading '4. Assessment of the Proposed Development', it is stated that the Declared Net Capacity of the installation appears to be marginally less than 500 megawatts. Earlier in the letter this is explained as being the net output of an installation taking account of energy produced less auxiliary and parasitic losses of the energy installation. This seems to me to accord with the definition in Schedule 2 of the Environmental Impact Assessment Regulations 2011, which refers to an installation designed to produce (emphasis added) more than 0.5 megawatts, i.e. it is its output that is relevant.

7. Even if the point in the above paragraph is incorrect there is nothing in the letter from Thames Renewables that led me not to agree with the applicant's understanding of the output of the installation as underlined by the manufacturers quotation… In particular paragraph 7 on the second page, immediately above the Conclusion, refers to reliance on 'historic data sets' but gives no indication what these are. It also does not accord with the plain wording of the manufacturer's specification."

69. I consider that Mr Tanner was entitled to reach the conclusion he did on the basis of the material before him and for the reasons he has given.
70. I have been referred to the witness statement of Mr Dechambeau, the project manager for the hydropower plant, dated 4 February 2016, commenting on Thames Renewables' letter of 13 April 2015; and I have also been referred to a witness statement of Mr Johannsen dated 1 April 2016, the purpose of which, he states, "is to provide [his] conclusions on whether the Proposed Development is one that falls within Schedule 2" of the 2011 Regulations (para 2). Neither of these two statements assists me in assessing the material that was before Mr Tanner at the time he wrote his reports for the Committee and to which he had regard in reaching his conclusion that this was not a Schedule 2 development. For the same reason I am not assisted by the second witness statement of Mr Dechambeau dated 6 April 2016, exhibiting a confirmation dated 29 March 2016 sent to the Applicant by Ofgem granting preliminary accreditation on the basis of generators with a total installed capacity of 492kw.
71. The Council's decision that this is not a Schedule 2 development can be challenged only on Wednesbury grounds. I reject Mr Turney's submission that an issue of law as to the proper construction of the 2011 Regulations arises for determination by the court. The cases of R (Goodman) v London Borough of Lewisham [2003] EnvLR 28 (at paras 7 and 8), and Abraham v Wallonia (C-2/07) [2008] EnvLR 32 (at para 39), on which Mr Turney relies, do not assist him. In Goodman Buxton LJ made clear (at para 8) that the courts will intervene to correct errors in the planning authority's "understanding of the meaning in law of the expressions used in the Regulation". However I agree with Mr Kolinsky that no such error is alleged in the present case. The ground of challenge is concerned only with the Council's decision as to how many megawatts the Proposal was actually designed to generate. That is a question of pure fact and judgement, and as such one that can only be challenged on conventional public law grounds (R (Horner) v Lancashire CC [2007] EWCA Civ 784, per Auld LJ at para 42).
72. The Council applied its mind directly to the relevant provisions of the Regulations. I am satisfied the Council asked itself the right question and having regard to the material before it, arrived at an answer to that question which was not Wednesbury unreasonable.

Ground 4: the process was procedurally unfair

73. The essence of the complaint in Pinenorth's Statement of Facts and Grounds (paras 35-36) and Mr Turney's written submissions is that at the meeting on 16 September 2015 the Committee only considered the acceptability of the proposals in respect of noise impacts. This was despite the fact that numerous new representations on wide ranging matters had been received by the Council since the first Committee meeting on 15 April 2015. It is contended that the Committee failed to have regard to these representations, as it was required to do (see R (Kides) v South Cambridgeshire DC [2003] 1 P&CR 19).
74. In his oral submissions, for the first time, Mr Turney further submitted that the decision of the Council was fundamentally flawed because of the change in composition of the Committee at the September meeting. Two councillors who attended the April meeting were not present at the September meeting, and three councillors who attended the September meeting were not present at the April meeting.
75. In my view there is nothing in either of these points.
76. As to the first, it is clear that the Council was aware of and took into account the representations received between the two Committee meetings. The addendum to the officers' report for the 16 September 2015 meeting refers to the numerous letters of support and of objection which had been received since the April meeting. Not surprisingly, given the intended focus of the September meeting, the addendum report focuses on the noise impact implications of those letters. However the addendum report refers to a 1,299 signature petition opposing the application which had been received and summarises seven points made in the petition, a number of which refer to issues other than noise.
77. The minutes of the 16 September meeting state:

"The Committee discussed the acceptability of the application in terms of noise, as other matters had been decided upon during the meeting held on 15 April 2015, with there being no new planning issues of any significance having subsequently arisen."

78. It is clear that the Committee was aware of representations received since the April meeting and had regard to them. The Council concluded that they raised no significant new issues that required re-opening non-noise issues, and that the proposal was acceptable in terms of noise (subject to conditions). In so doing I am satisfied that the Council had regard to all material considerations affecting the application (Kides, per Jonathan Parker LJ at para 121-127). Further I agree with Mr Kolinsky that the process that was adopted amounted, in substance, to the consideration of all of the issues in the round.
79. As to the second point, the decision to grant planning permission was taken at the September meeting. Councillors Diaz, Howard and Palmer, who were not present at the April meeting, had access to all material documentation, including the original report for the April meeting which was set out in Appendix "A" to the Second Report. The decision to grant planning permission was that of the Council.

Ground 5: condition NSO1 relating to noise

80. The material part of condition NSO1 reads as follows:

"The sound energy level from the operation of the hydro power scheme when assessed at representative residential and commercial noise sensitive premises and/or locations or when measured elsewhere and calculated to the said locations, shall not exceed the limit levels detailed in the table below. The hydro power scheme may not be operated unless these provisions are met."

81. The third ground of challenge as set out in Pinenorth's Statement of Facts and Grounds alleges that the noise conditions imposed were invalid. The grounds of claim identify two points. First, it is alleged that noise condition NSO1 did not set a limit for construction noise; second, that there was inadequate information as to background noise levels.
82. In his skeleton argument dated 6 April 2016 Mr Turney states that Pinenorth does not pursue the first point, having been satisfied by the Council's answer to this point in its Detailed Grounds and evidence. However he maintains the second point, namely that condition NSO1 fails properly to take into account the true background noise level within Pinenorth's development.
83. In the alternative, it appears for the first time, Mr Turney (at para 31) contends that the condition does not identify what the "representative residential and commercial noise sensitive premises and/or locations" are.
84. In his oral submissions Mr Turney limited this ground of challenge to this one point, contending that condition NSO1 is too imprecise to be enforceable. Pinenorth's contention is that even if the external criterion were met at MP6, it would not necessarily be met within their development site because of the significantly lower background noise level away from the river. This, it is said, could cause a problem.
85. It would not be possible, Mr Turney contends, to enforce the condition without knowing which location was being assessed against which criterion. He submits that on a proper reading of condition NSO1, the planning permission fails to control the noise of the development in the manner proposed and anticipated. The permission should, he submits, be quashed to allow an appropriate condition to be imposed.
86. The Second Report refers to the updated Noise Assessment by BPA, following the April meeting, which it is stated "reasserts the previous position that noise emissions from the hydroelectric scheme can be mitigated and minimised so as to comply with the Local Authority and NPPF requirements". The report continues under the heading "Commercial Environmental Health Response":

"Having considered the information provided in … both the initial and subsequent acoustic reports the Commercial EH Department considered the noise emissions from the operation of the hydro power scheme can be mitigated and minimised so as not to cause adverse impact on the health and/or quality of life of occupiers of residential and/or commercial premises in the vicinity of the proposed hydro power scheme and therefore will comply in principle with National Planning Policy and Guideline requirements and as such the scheme is acceptable subject to compliance with the noise control conditions detailed below."

There then follows the officers' advice:

"Officers advice having considered the additional information and response nevertheless remains that the imposition of the conditions as proposed, contrary to what opponents are suggesting, should give sufficient certainty to members to agree the recommendation. They are considered to be both restrictive and enforceable."

87. The Addendum to the Second Report noted that the consensus of the advice of noise consultants and professional and legal planning advisers acting for Lensbury and Pinenorth responding to the additional noise reports is that "the applicants have failed to adequately address the potential noise impact with the methodology being flawed". However the Committee accepted the advice of the officers. The minutes of the meeting record the following:

"The committee felt that the proposed condition safeguarded residents and other nearby establishments, although a concern was raised over how feasible it would be for the applicant to comply with them."

88. Mr Hurst, a principal environmental health officer of the Council, in his witness statement dated 8 February 2016 explains that BS4142 methodology requires that the background noise level is determined at the receptor positions, in the absence of the specific noise level. His witness statement continues with regard to condition NSO1 as follows:

"14. … MPS represents the boundary of the Teddington Studios Site with the Lensbury Site. The site plan and perspective … are taken from Teddington Studios application submission 14/0914/FUL. It is considered that MPS position is representative of the closest properties within the Teddington Studio site to the Hydro Scheme.

…

17. Condition NSO1 details representative locations but does not exclude other locations from being assessed. The same relative external and absolute internal criteria limits would apply.

18. With regard to the external noise limiting level this will be dependent on the background noise level which is dominated by the hydrodynamic noise from the weir at location MP6 and will attenuate with distance as well as being screened by building blocks. Therefore background noise on the opposite side of the Teddington Studio site will be lower and require a lower rating level as this is relative to the background level. A report by Hoare Lea on behalf of the Claimant has indicated that the location of their background noise survey was shielded from weir noise, hence the lower background noise levels. We have not been given a copy of the Hoare Lea acoustic assessment so do not know the exact location of the measurement position. However, the shielding effect from the existing Lensbury buildings will also shield noise from the hydro scheme. Using the Hoare Lea background measurement of 41dB(A) and the Defendant's proposed condition of -5, analysis of the noise model indicates that the external level will be compliant with the Defendant's external and internal requirements.

19. Moreover the rating level (LArTr) contains a 7dB character correction therefore the required level is in absolute terms -12dB below the existing background level. Hoare Lea have recommend[ed] a further 5dB which would make 17dB below the underlying background level, this is considered to be an unreasonably high requirement and in excess of NPPF/NPPG requirements."

89. In R (Nicholson) v Allerdale Borough Council [2015] EWHC 2510 (Admin) (at para 60) Holgate J observed "an application for judicial review is not a forum for resolving issues between the parties on technical matters such as the assessment of the existing levels of noise in the community or the noise that would be emitted from the test track when in use, and the means by which that noise should be controlled. These are matters of judgment for the local planning authority". These observations apply equally in the present case.
90. Mr Kolinsky submits that the meaning of NSO1 is clear. The six identified receptor locations are the points at which the acceptability of noise impact is to be determined. Acceptability at those locations is determined by reference to clearly identified standards which are set out within the condition itself. Pinenorth's site is identified as a location and a receptor MP6 is within that site. If measurements at an alternative location within Pinenorth's site indicate that the requirement that the rating level minus the background level should be no greater than minus 5dB is not met, then the condition prevents the operation of the proposal.
91. Mr Turney submits that this construction of condition NSO1 involves reading into the phrase "when measured elsewhere" all potential receptors caught by the condition. That, he contends, is not the proper reading of the condition. I reject this submission. I consider that condition NSO1 on a fair reading as a whole does not exclude locations other than representative locations from being assessed.
92. In his written submissions (at para 31) Mr Turney raised the point that the copy of the planning permission on the Council's planning register (in contrast to the planning decision) does not include "Table 1" referred to in condition NSO1. However he did not appear to pursue this point in his oral submissions. It seems to me to be clear that specific calculations for each receptor are set out in Table 1 attached to condition NSO1; and that table is incorporated as a part of the condition. It is expressly referred to in the text of condition NSO1 itself.
93. I reject Mr Turney's submission that condition NSO1 is too imprecise to be enforceable.

Conclusion

94. For the reasons I have given these claims fail.