QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| GOOD ENERGY GENERATION LIMITED
|- and -
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) CORNWALL COUNCIL
|COMMUNITIES AGAINST RURAL EXPLOITATION (CARE)
Stephen Whale (instructed by the Government Legal Department) for the First Defendant
The Second Defendant and Interested Party did not appear and were not represented
Hearing date: 19 April 2018
Crown Copyright ©
Mrs Justice Lang:
"10.60 the harm that would be caused to the setting and thereby the significance of the designated heritage assets set out above, whilst less than substantial in Framework terms, would nevertheless be serious. The harm that would be caused to the SAMs needs to be given great weight on the negative side of the balance by dint of the workings of paragraph 132 of the Framework. The harm that would be caused to the setting of the listed buildings attracts great weight by the same process but is underlined by the provisions of section 66(1) of the [Planning (Listed Buildings and Conservation Areas) Act 1990].
10.61 While I am cognisant of the fact that the harm would be temporary, and reversible, and that as I conclude above, the benefits of the scheme would be extensive, in my judgment, the public benefits of the proposal are insufficient to justify the serious harm to the significance of the designated heritage assets that would be caused."
"10.82 From what I saw, the wind turbines proposed would be an incongruous presence of significant scale, in terms of wind turbine height, and the spread of the array, in many views inland from the AONB and Heritage Coast. Those views are an integral part of the scenic beauty of the designated landscape. Bearing in mind the way the Courts have approached the matter, this alien presence would harm the AONB itself, and the Heritage Coast."
"10.83 Paragraph 115 of the Framework directs that great weight should be given to conserving landscape and scenic beauty in these designated areas. Scenic beauty would not be conserved by the proposal."
"10.85 Turning to LP Policy ENV1, proposals near to the AONB or Heritage Coast that adversely affect character or amenity (the latter is inseparable in my view from scenic beauty) will not be permitted unless the development is required in the proven national interest and no alternative sites are available. Feeding that into LP Policy TRU4, criterion 1 says that schemes which comply with criterion 2 are to be assessed having regard to the provisions of LP Policy ENV1, and the benefits of renewable energy, and will not be permitted where those benefits do not justify harm to the special features or qualities which led to the national designation."
"20. The Secretary of State has considered the Inspector's report, evidence presented to the inquiry, together with all representations received following the adoption of the LP. For the reasons given above the Secretary of State considers that the appeal scheme is not in accordance with LP policies 14, 23 and 24. Nor does it accord with saved NCDLP policy ENV1 and is not in accordance with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.
21. Weighing in favour, the proposal would generate renewable energy and help combat climate change. The Secretary of State places significant weight on these benefits.
22. However the harms to heritage assets of the proposal are not outweighed by the public benefits; and the wind turbines proposed would be an incongruous presence of significant scale, in terms of wind turbine height and the spread of the array, in many views inland from the AONB and Heritage Coast. In terms of the WMS, the Secretary of State, like the Inspector, concludes that the planning impacts identified by affected local communities have not been addressed and, as a result, the proposal does not have the backing of the local community.
23. The Secretary of State considers that there are no material considerations which indicate that the appeal should be determined other than in accordance with the development plan. He concludes that the appeal should be dismissed and planning permission refused."
Legal and policy framework
(i) Applications under section 288 TCPA 1990
"An application under section 288 is not an opportunity for a review of the planning merits….."
a) South Somerset District Council, per Hoffmann LJ at 84:
"...as Forbes J. said in City of Westminster v Haymarket Publishing Ltd:
"It is no part of the court's duty to subject the decision maker to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument relating to each matter in every paragraph"
The inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith and references to policies must be taken in the context of the general thrust of the inspector's reasoning ... Sometimes his statement of the policy may be elliptical but this does not necessarily show misunderstanding. One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy or proposed alteration to policy."
b) Clarke Homes, per Sir Thomas Bingham MR at 271-2:
"I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."
(ii) Reasons for decisions
"The three criteria suggested in the dictum of Megaw J. in In re Poyser & Mills Arbitration  2 QB 467, 478 are that reasons should be proper, intelligible and adequate. The application of the first of these presents no problem. If the reasons given are improper they will reveal some flaw in the decision-making process which will be open to challenge on some ground other than the failure to give reasons. If the reasons are unintelligible, this will be equivalent to giving no reasons. The difficulty arises in determining whether the reasons given are adequate, whether in the words of Megaw J., they deal with the substantial points that have been raised or in the words of Philips J. in Hope v Secretary of State for the Environment 31 P. & C.R. 120, 123 enable the reader to know what conclusion the decision-maker has reached on the principal controversial issues. What degree of particularity is required? It is tempting to think that the Court of Appeal or your Lordships' House would be giving helpful guidance by offering a general answer to this question and thereby "setting the standard" but I feel no doubt that the temptation should be resisted, precisely because the court has no authority to put a gloss on the words of the statute only to construe them. I do not think one can safely say more in general terms than that the degree of particularity required will depend entirely on the nature of the issues falling for decision."
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
"(a) the provisions of the development plan, so far as material to the application…
(b) any local finance considerations so far as material to the application, and
(c) any other material considerations."
"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."
"Section 18A [the parallel provision in Scotland] has introduced a priority to be given to the development plan in the determination of planning matters……
By virtue of section 18A the development plan is no longer simply one of the material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is helpful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission….. Thus the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations indicating that it should not be followed then a decision contrary to its provisions can properly be given.
Moreover the section has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it. As Glidewell J observed in Loup v Secretary of State for the Environment (1995) 71 P & C.R. 175, 186:
"What section 54A does not do is to tell the decision-maker what weight to accord either to the development plan or to other material considerations."
Those matters are left to the decision-maker to determine in the light of the whole material before him both in the factual circumstances and in any guidance in policy which is relevant to the particular issues.
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 be required to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse."
(iv) Planning obligations
"Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (… "planning obligation") enforceable to the extent mentioned in subsection (3) -
a) restricting the development or use of the land in any specified way;
b) requiring specified operations or activities to be carried out in, on, under or over the land;
c) requiring the land to be used in any specified way; or
d) requiring a sum or sums to be paid to the authority … on a specified date or date or periodically."
"122. Limitation on use of planning obligations
(1) This regulation applies where a relevant determination is made which results in planning permission being granted for development.
(2) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—
(a) necessary to make the development acceptable in planning terms;
(b) directly related to the development; and
(c) fairly and reasonably related in scale and kind to the development.
(3) In this regulation—
"planning obligation" means a planning obligation under section 106 of TCPA 1990 and includes a proposed planning obligation; and
"relevant determination" means a determination made on or after 6th April 2010—
(a) under section 70, 73, 76A or 77 of TCPA 1990 of an application for planning permission; or
(b) under section 79 of TCPA 1990 of an appeal."
"Planning conditions and obligations:
203. Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition.
204. Planning obligations should only be sought where they meet all of the following tests:
? necessary to make the development acceptable in planning terms;
? directly related to the development; and
? fairly and reasonably related in scale and kind to the development.
205. Where obligations are being sought or revised, local planning authorities should take account of changes in market conditions over time and, wherever appropriate, be sufficiently flexible to prevent planned development being stalled.
206. Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects."
"Planning obligations mitigate the impact of unacceptable development to make it acceptable in planning terms. Obligations should meet the tests that they are necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind. These tests are set out as statutory tests in the Community Infrastructure Levy Regulations 2010 and as policy tests in the National Planning Policy Framework."
Grounds of challenge
i) financial contributions to a community benefit fund;
ii) a community investment scheme open to local residents; and
iii) a reduced electricity tariff, open to local residents.
"As part of the Appeal Proposal, a section 106 unilateral undertaking was agreed with and submitted to the Council by the Appellant and the landowners (being the freehold owners of the Appeal Site). All parties executed the section 106 except the mortgagee (as there was not sufficient time for the mortgagee to execute the section 106 prior to the planning committee meeting). The section 106 proposed a suite of community benefits including:
(a) a £5,000 per megawatt of installed capacity community benefit contribution to be paid into a community benefit fund;
(b) a community investment scheme open to local residents; and
(c) a reduced electricity tariff, also open to local residents."
"A community benefit offer has been made with this planning application. Members are advised that any Community Benefit offer is not relevant to the consideration of this application as neither the principle of the undertaking nor the details contained within it have been proposed in order to directly mitigate/remedy a specific planning objection to this proposal, and as such, the requirement for this community benefit is not considered to be compliant with the Community Infrastructure Levy Regulations 2010 (as amended) and cannot be required under planning law. Therefore the community benefit is not material to the determination of the application and no weight has been given to the inclusion of a community benefit scheme when considering this planning application."
"9.6 Through a Section 106 Agreement the appellant is proposing Community Benefit Fund and Local Tariff scheme. These matters were addressed at paragraph 295 of the committee report.
9.7. The Obligation deals with a number of matters. I am sure, that if the appeal was allowed and the scheme proceeded, the Community Benefit Fund, the Local Tariff, and the Community Infrastructure Scheme, would provide welcome funding and income. However, bearing in mind the strictures of the Community Infrastructure Levy Regulations 2010, these are not matters to which weight can be attached in determining the appeal."
"In principle, it seems to me that any consideration which relates to the use and development of land is capable of being a planning consideration. Whether a particular consideration which falls within that broad class is material in any given case will depend on the circumstances."
"It is a logical process to extend the ambit of Lord Parker C.J.'s statement so that it applies not only to the grant or refusal of planning permission and to the imposition of conditions but also to the formulation of planning policies and proposals. The test, therefore, of what is a material 'consideration' in the preparation of plans or in the control of development …..is whether it serves a planning purpose: see Newbury District Council v Secretary of State for the Environment  AC 578, 599 per Viscount Dilhorne, and a planning purpose is one which relates to the character of the use of land"
"The power to impose conditions is not unlimited. In Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government  1 Q.B. 554 Lord Denning said, at p. 572:
"Although the planning authorities are given very wide powers to impose 'such conditions as they think fit,' nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest."
As Lord Reid said in Mixnam's Properties Ltd. v. Chertsey Urban District Council  A.C. 735, 751, this statement of law was approved by this House in Fawcett Properties Ltd. v. Buckingham County Council  A.C. 636.
It follows that the conditions imposed must be for a planning purpose and not for any ulterior one, and that 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: see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation  1 KB 223; Hall & Co. Ltd. v. Shoreham-by-Sea Urban District Council  1 W.L.R. 240, per Willmer L.J. at p. 248, …"
"Just before the section came into force on 25 October 1991 the Secretary of State issued Circular 16/91, giving guidance on the proper use of planning obligations under it. Annex B to the Circular commenced by observing that, rightly used, planning obligations might facilitate and enhance development proposals, but that they should not be used to extract from developers payment in cash or in kind for purposes that were not directly related to the development proposed but were sought as "the price of planning permission". That no doubt reflected the dictum of Lloyd LJ in Bradford City Metropolitan Council v Secretary of State for the Environment (1986) 53 P. & C.R. 55, 64, to the effect that it has usually been regarded as axiomatic that planning consent cannot be bought or sold."
"B7. As with conditions …. planning obligations should only be sought where they are necessary to the granting of permission, relevant to planning and relevant to the development to be permitted. Unacceptable development should never be permitted because of unrelated benefits offered by the applicant …"
"An offered planning obligation which has nothing to do with the proposed development, apart from the fact that it is offered by the developer, will plainly not be a material consideration and could be regarded only as an attempt to buy planning permission. If it has some connection with the proposed development which is not de minimis, then regard must be had to it. But the extent, if any, to which it should affect the decision is a matter entirely within the discretion of the decision maker and in exercising that discretion he is entitled to have regard to his established policy. The policy set out in the Circular 16/91 is intended to bring about certainty and uniformity of approach, and is directed among other things to securing that planning permissions are not bought and sold. It is not suggested that there is anything unlawful about Circular 16/91 as such. It might be thought the Secretary of State has made a slip in paragraph B12 where it is stated of unilateral undertakings:
"It should be relevant for planning and should resolve the planning objections to the development proposal concerned. Otherwise, it would not be a material consideration and will not be taken into account …."
But the context is that of an appeal against refusal of planning permission, which involves that the local planning authority should have taken the view that there were planning objections to the proposed development. If these objections were bad there would be no need for any unilateral obligation. If they were good then something would require to be done to overcome them and a unilateral obligation which would not do so would indeed be irrelevant. As regards the references in paragraphs B5 and B7 to planning obligations being necessary to the grant of permission and in paragraph B8 to their being needed to enable the development to go ahead, I think they mean no more than that a planning obligation should not be given weight unless the exercise of planning judgment indicates that permission ought not to be granted without it, not that it is to be completely disregarded as immaterial."
"70 What can be derived from the decisions in the planning context, and in particular the Tesco case, can be stated shortly. First, the question of what is a material (or relevant) consideration is a question of law, but the weight to be given to it is a matter for the decision-maker. Second, financial viability may be material if it relates to the development. Third, financial dependency of part of a composite development on another part may be a relevant consideration, in the sense that the fact that the proposed development will finance other relevant planning benefits may be material. Fourth, off-site benefits which are related to or are connected with the development will be material. These principles provide the answer to the questions raised in Ex p Monahan  1 QB 87 about the development in Victoria or the swimming pool on the other side of the city. They do not, as Kerr LJ thought, raise questions of fact and degree. There must be a real connection between the benefits and the development.
71 Given the similar context, there is no reason why similar principles should not apply to compulsory acquisition for development purposes provided that it is recognised that, because of the serious invasion of proprietary rights involved in compulsory acquisition, a strict approach to the application of these principles is required. There must be a real, rather than a fanciful or remote, connection between the off-site benefits and the development for which the compulsory acquisition is made."
"20 The test of necessity in Regulation 122(2) (a) was originally not a test in law of the materiality of a planning obligation. Indeed that was the reason why the challenge failed in R v Plymouth City Council ex p Plymouth and S Devon Co-op Society Ltd  67 P and CR 78. It was a test of policy, and not a test in law – see Hoffman LJ in Plymouth at page 90, and Lord Keith in Tesco Stores v Environment Secretary  1 WLR 759 at 769 D-770 A, Lord Hoffman at p 777 B-C, 780 A-781C. The tests in (b) and (c) in Regulation 122 also go wider than the law did before its enactment. The test of materiality in law was hitherto that to be material, the provisions in a 106 obligation (a) had to have a planning purpose, (b) be related to the permitted development and (c) not be Wednesbury unreasonable (see Russell LJ in Plymouth at page 82 and Hoffman LJ at page 87). It follows that there are now tests in law which to some degree were not tests of law before their enactment. While I agree with him that the effect of Regulation 122 was drawn from previous Circulars, I respectfully disagree with Bean J in Welcome Break Group and Others v Stroud DC and Gloucestershire Gateway Ltd  EWHC 140 at paragraphs 49 and 50 where he treats the ratio of the Tesco case on the issue of necessity as still holding good. It is clear that the question of what is "necessary" is now a test in law, which it was not beforehand."
"To the extent that a planning obligation will overcome a legitimate planning objection to a development, its existence is a material consideration under s.70(2) in determining whether to grant permission, provided that it meets the tests set out in reg. 122 of the Community Infrastructure Regulations 2010. Regulation 122 provides that a planning obligation may only constitute a reason for granting planning permission for the development if the obligation is (a) necessary to make the development acceptable in planning terms; (b) directly related to the development; and (c) fairly and reasonably related in scale and kind to the development. Regulation 122 therefore builds upon certain of the policy guidance previously contained in Circular 05/05 by making compliance with these three tests a legal requirement for the consideration of a planning obligation as a material consideration in support of a proposed development. The reg. 122 requirements remain additionally as policy guidance in the NPPF. As a result, reg. 122 develops considerably the previously evolved case law relating to when a planning obligation could be a material consideration."
"For a benefit to be material, it does not have to be necessary to make the development acceptable in planning terms; although, by section 106 of the Town and Country Planning Act 1990 and regulation 122 of the Community Infrastructure Levy Regulations 2010 (SI 2010 No 948), a planning obligation may only be taken into account in the determination of any planning application if it is so necessary."
"5. The fourth bullet point of paragraph 97 of the National Planning Policy Framework ("the Framework") refers to "…community led initiatives for renewable…energy…". I appreciate that the meaning of the Framework is a question of law for the Courts. However, on behalf of the Government, I can say that this bullet point is not meant to include either the Claimant's Local Tariff or its Community Investment Scheme. They are not, in the Government's view, community-led initiatives for renewable energy.
6. The Planning Practice Guidance ("the Guidance") has a section on "Renewable and low carbon energy". There is a subsection within it entitled "Developing a strategy for renewable and low carbon energy". Within the subsection, Paragraph 004 Reference ID: 5-004-20140306 ("Paragraph 004") is entitled "What is the role for community led renewable energy initiatives?" The text of Paragraph 004 refers to "Community initiatives", "renewable and low carbon energy initiatives", "community led renewable energy developments" and "community based initiatives". I appreciate that the meaning of the Guidance is also a question of law for the Courts. However, on behalf of the Government, I can say that Paragraph 004 is not meant to include either the Claimant's Local Tariff or its Community Investment Scheme. They are not, in the Government's view, community led renewable energy initiatives.
7. Paragraph 004 explains that "Further information for communities interested in developing their own initiatives is provided by the Department of Energy and Climate Change." This is not a reference to the October 2014 Department of Energy and Climate Change document entitled "Community Benefits from Onshore Wind Developments: Best Practice Guidance for England ("the BPG"). Rather it is a reference to the Community Energy Guidance ("the CEG") published by the Department of Energy and Climate Change on 25 March 2013 and last updated on 26 January 2015. The CEG does not refer to either the Claimant's Local Tariff or its Community Investment Scheme. They are not, in the Government's view, covered by the CEG."
i) "the type and terms of investment opportunity to be made available to local individual community or institutional investors";
ii) "the mechanism by which the scheme will be administered, including how and when it will be made available, including any preferential terms for investors within the locality";
iii) "how the project company will be structured after the community investment scheme is implemented, including but not limited to management and legal structure, administration and governance".
"10.109 First, it is my conclusion that the (less than substantial, temporary and reversible) harm the proposal would cause to the setting and thereby the significance of a range of designated heritage assets is not outweighed by the public benefits that would flow from the proposal.
10.110 On the basis of the judgment of the High Court in Forest of Dean DC v SoS for Communities & Local Government and Gladman Developments Ltd (2016) EWHC 421 (Admin), that provides a compelling case for the appeal being dismissed. As well as the failure to accord with the Framework, the proposal would not comply with LP Policies ENV12 and ENV14, and, in that context, given that the overarching LP Policy TRU4 contains no reference to designated heritage assets, the development plan.
10.111 If the Secretary of State does not accept that conclusion then the situation becomes more complex. While I have found no harmful impacts in relation to living conditions, or a range of other matters, subject to the application of suitable conditions, it is my view that the temporary and reversible harm the proposal would cause to the landscape generally, and the scenic beauty of AONB, albeit as a development outside the AONB, especially, would not be outweighed by the benefits of the proposal. As such, the scheme falls foul of the approach set out in criterion 1 of LP Policy ENV1, and criterion 1 of the overarching LP Policy TRU4, and as a result, the development plan, paragraph 115 of the Framework, and the purposes of Section 85 of the Countryside and Rights of Way Act 2000."
"c. in the case of wind turbines, they are within an area allocated by Neighbourhood Plans for wind power ….;
d. do not have an overshadowing or overbearing effect on nearby habitations."
"Support will be given to renewable and low carbon energy generation developments that:
a. are led by, or meet the needs of local communities;"