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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Benacre Estates Company & Anor v Secretary of State for Communities and Local Government & Ors [2009] EWHC 680 (Admin) (07 April 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/680.html Cite as: [2009] EWHC 680 (Admin)

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

		Royal Courts of Justice Strand, London WC2A 2LL
		7 April 2009

Ms Patterson QC :

1. This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision letter dated 1st May 2008 in which an Inspector appointed by the 1^st Defendant granted planning permission with conditions for the construction and operation of two wind turbines and the associated infrastructure on land in and adjacent to Africa Alive Wild Life Park, White Lane, Kessingland, Norfolk.
2. The Claimants are, firstly, significant land owners and occupiers of some 6,700 acres of land and 3½ miles of Suffolk coastline to the south of Kessingland and mostly within the Suffolk Coasts and Heaths Area of Outstanding Natural Beauty and, secondly, they are the local parish council, whose area is adjacent to where it is proposed that the wind turbines are to be sited. The closest properties to the wind turbines are a settlement at Black Street, which is within the Gisleham Parish Council area.
3. Both Claimants made written representations on the appeal, which was conducted by way of written representations. Both are affected by the development proposed as a result of its impact on the first Claimant's freehold land and its impact upon the area of the second Claimant.
4. The local planning authority took no part in the proceedings before the court. It, too, had submitted written representations in the appeal process. It had submitted a short statement supported by an independent landscape character assessment by Land Use Consultants. The purpose was to inform their members through an independent appraisal. The authority had been presented with two different and conflicting analyses of visual impact of the proposed development, one on behalf of the appellant and the other on behalf of the Benacre Estate, the 1^st Claimant.

The Decision Letter

5. On the 1^st of May 2008 the Inspector issued his decision letter. In paragraphs 3-5 the Inspector described the application and the surrounding area. He recorded that he carried out site visits to the appeal site and surrounding area on 14 April 2008 and 22 April 2008 in both cloudy and wet conditions and when the weather was clear and sunny so that he had assessed the visual impact of the proposal under various weather and visibility conditions. He recorded that he had taken into account the environmental impact statement and the addendum to that together with views expressed on those documents and judgments contained within them by statutory consultees and objectors.
6. Having described the appeal site the Inspector went on in paragraphs 9-19 to set out planning policy both nationally and in the Development Plan. In paragraph 20 the Inspector set out the process that he was going to follow to identify the determining issue (or issues) in the case. That was to assess the appeal proposals against a range of matters including visual, physical, social and ecological with particular regard to the issue specific to wind turbine development identified in the companion guide to PPS 22, which is the Government guidance on renewable energy. Having been through the process that he had set himself, the Inspector defined the determining issue in paragraph 36 as follows:-

"In my view, the determining issue in this case is thus whether, given the emerging and adopted policy objectives to protect landscape character of the countryside in general and the Suffolk Coasts and Heaths AONB in particular, the degree of visual impact occasioned by the proposed wind turbines on the landscape would be so great as to outweigh the Government's policy of objectives concerning renewable energy."

7. Paragraphs 37-50 then proceed to set out the Inspector's reasons.
8. Paragraph 39 summarised the planning policy position with regard to landscape. The Inspector noted that the appeal site was not within the National Park nor within the Suffolk Coasts and Heaths AONB and thus was not subject to the more stringent controls exercised over development in nationally designated landscapes. However, he noted that he had to have regard to advice in PPS 22 as to the impact of renewable energy projects close to the boundary of areas designated for their national landscape importance.
9. Paragraph 40 had been the subject of some argument. It reads:-

"The recognition of proximity to the boundary of an AONB as a material consideration is carried forward in the Waveney Local Plan 1996, together with a policy prohibition on potentially intrusive development on land south of Church Road and Whites Lane (which includes the appeal site), Kessingland. This policy prohibition has subsequently been carried forward in the interim Waveney Local Plan 2004 and made subject to the additional caveat that development will not be permitted unless it can be shown that there is an overriding national need for the development and that no alternative site can be found. The validity or otherwise of the Council's planning policies is not a matter which is before me for consideration. However, there is no requirement in national policy for an applicant to demonstrate that there is 'an overriding national need' for a renewable energy project, or that 'no alternative site can be found'. I have thus disregarded these policy requirements in my assessment of the appeal proposal."

10. Paragraphs 41 and 42 describe the impact of the proposal on the Broads National Park and, in general terms, the immediate and more distant landscapes to the south and west including the AONB.
11. From paragraph 43 the Inspector describes the AONB and the extent of visual impact of the development upon it. First, he analyses the impact on the northern part of the AONB (paragraph 44) second, he analyses the impact on land to the south of the water meadows within the Benacre estate (paragraph 45) and third, he analyses the impact on properties and from a limited number of viewpoints (paragraph 46).
12. The Inspector concluded that the most significant impact on the surrounding landscape would occur within 5 – 600 metres to the south and west of the proposed turbines with the greatest level of impact occurring within farmland immediately south of the appeal site (paragraph 48).
13. Whilst recognising that impact would diminish with distance the Inspector was mindful that movement of the wind turbines in an otherwise static landscape would draw the eye (paragraph 49).
14. In paragraph 50 the Inspector set out his concluding paragraph under reasons and in paragraph 51 he set out his overall conclusion. They read:-

"50.The development of renewable energy resources, including the erection of onshore wind turbines, is vital to facilitating the Government's commitments on both climate change and renewable energy. And it is inevitable that, notwithstanding the acknowledged beauty and diverse nature of the countryside in general, there will be occasions when the broad principles embodied in the Government's commitments will need to take precedence over otherwise unyielding protection of the landscape. In my view, the extent and overall intensity in parts, is not so great or so widespread as to cause me to set aside the Government's policy objectives, or to otherwise justify me refusing planning permission. I have thus formed the view that the appeal should be allowed. In coming to this decision I have also had regard to the evolving nature of the nation's varied landscapes within which renewable energy schemes are increasingly becoming an accepted part. And also the enduring nature of the landscape, given that should wind energy technologies be superseded, the appeal site can be returned to its original state with minimal long-term consequences.

51. On balance therefore, having in accordance with national, regional and local plan policies had due regard to the impact of the appeal proposal on the surrounding countryside, nearby settlements and the AONB, I am persuaded that permission should be granted, subject to conditions relating to matters of outstanding and on-going concern, modified for clarity and amended to extend control where necessary. And that the circumstances of this case justify me setting aside adopted and interim local plan policies that seek resist intrusive development on land south of Kessingland."

Legal Framework

15. Under section 70(2) of the Town and Country Planning Act a local planning authority when dealing with an application:-

"Shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."

16. By reason of section 38(6) of the Planning and Compulsory Purchase Act 2004:-

"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. Section 79 of the Town and Country Planning Act deals with the determination of appeals. Section 79(4) applies the provisions of section 70 amongst others to determinations made on appeal by the Secretary of State as they would in relation to an application for planning permission which fell to be determined by the local planning authority.
18. It is common ground that in a written representation of appeal there is a duty to give reasons on the part of the first respondent. That duty has been restated in the classic exposition by Lord Brown in South Buckinhamshire District Council v Porter (No.2) [2004] UKHL 33 at paragraph 36:-

"36. The reasons for a decision must be intelligible and they must be adequate. They must enable to 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 diverse 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 prove an adequately reasoned decision."

19. The respective roles of the court and a planning Inspector were set out by Mr Justice Sullivan, as he then was, in R (Newsmith Stainless Ltd) v Secretary of State for Environment [2001] EWHC Admin 74. In paragraph 8 he said:-

"8. Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Associated Provincial Picture Houses v Wednesbury Corporation unreasonable conclusion on matters of planning judgment, faces a particularly daunting task"

20. In terms of planning policy the approach of the courts is to allow the decision- maker latitude as to what meaning the words within the policy have in their context provided the decision-maker does not go outside the reasonable range of meanings available to it: see R v Derbyshire County Council ex parte Woods [1998] Env. LR 297 recently reaffirmed in R on the application of the Heath and Hampstead Society v Vlachos [2008] EWCA Civ 193.

Submissions

21. The Claimant challenges the decision letter on three main grounds. I deal with those in turn.

Ground 1

Did the Inspector misunderstand and misdirect himself with regard to the development plan and local plan policy?

22. The Claimant submitted that policy K2 of the Waveney Local Plan applies specifically to an area including the appeal site. Its purpose was to protect the setting of the AONB. It imposed an absolute prohibition on development within its area. It reads :-

"In order to safeguard the setting of the AONB new development will not be permitted in the area south of Church Road and Whites Lane as defined on the proposals map."

23. In addition, there was an Interim Local Plan policy, ENV 2, which it was submitted the Inspector misunderstood and/or was confused about. It misstated the national policy position in that there was an additional caveat which made it potentially a permissive policy. Interim policy ENV 2 reads:-

"On land between Church Road and Whites Lane, Kessingland, and the Suffolk Coasts and Heaths Area of Outstanding Natural Beauty boundary, development which does not conserve or enhance the natural beauty of the AONB will not be permitted unless it is demonstrated that there is an overriding national need for the development and no alternative site can be found."

24. In paragraph 40 of the decision letter it was submitted that the Inspector had accepted, correctly, that the validity of the Council's planning policies was not a matter that was before him for consideration. Because he proceeded to record that the last two elements of policy ENV 2, namely "an overriding national need", and "no alternative sites" were not part of national policy and said that he disregarded these policy requirements in his assessment of the appeal proposals, the following submissions were made:-

i) That the Inspector was unclear in paragraph 40 and the reader was left guessing as to how he proceeded in dealing with the policy position;

ii) Additionally, that the Inspector misdirected himself and in effect rewrote the policies;

iii) Because the Inspector rewrote the policies he exceeded his jurisdiction as is evident from the reference to setting aside of the adopted and interim local plan policies which appears in paragraph 51. In acting as he did it was submitted that the Inspector acted perversely.

iv) Further, in paragraph 50, the Inspector inverted the statutory test in section 38(6) of the Planning and Compulsory Purchase Act 2004 by putting Government policy first in saying:-

"In my view, the extent and overall intensity of impact arising from the proposed wind turbine in this case while significant in parts, is not so great or so widespread as to cause me to set aside the Government's policy objectives, or otherwise justify me in refusing planning permission."

25. The starting point in considering a decision letter is that the court has to read it fairly and as a whole. One is not seeking to construe a decision letter as an examination paper or in an unduly forensic manner. As Sir Thomas Bingham MR said in Clarke Homes Limited v Secretary of State for the Environment at East Staffordshire District Council at 68 P&CR 263:-

"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 straight forward down to earth reading of his decision letter without excessive legalism or exegetical sophistication."

26. In this decision it is impossible to consider paragraph 40 without taking into consideration what has gone before as Mr Forsdick, who appears for the Secretary of State, submits. When one does that one sees that the Inspector has plainly and fully directed himself to the planning policy framework. Policy K2 is specifically set out in paragraph 17 of the decision letter properly. The interim local plan policy and its terms are set out in paragraph 19 of the decision letter.
27. In recognising non-compliance of parts of ENV 2 with national policy the Inspector was clearly correct as a matter of fact. The only criticism then relates to the last sentence of paragraph 40 where the Inspector says he disregards "these policy requirements" in his assessment of the proposal. In my judgment, in so saying, the Inspector was simply saying that he was not attaching any weight to those parts of the interim policy which were in conflict with national policy. That is something that he was entitled to do. He was not rewriting the policy. He recognised at the beginning of paragraph 40 that the validity of the policy was not for him. Clearly though, issues of weight to attach to a non-statutory policy were matters for the Inspector. In those circumstances it cannot be said that the Inspector was rewriting the policy in proceeding as he was.
28. As a consequence, the Claimant's criticisms at (i) (ii) and (iii) fall away.
29. As to the fourth criticism, in my judgment, reading the decision letter as a whole and taking into account paragraphs 50 and 51 in particular, it is clear that what the Inspector was doing was looking, firstly, at the Development Plan and then weighing the other material considerations that he had identified. It is a classic example of the balance of judgment which is integral to a planning decision.
30. I do agree that some of the Inspector's wording could have been better and that his erroneous statement about the components of the Development Plan in paragraph 14 was not helpful. However, that inaccurate misstatement was of form and not of substance when the decision letter is looked at as a whole.
31. When that exercise is undertaken, paragraph 40 in the context of the decision letter is of adequate clarity to the informed reader. For reasons that I have set out I do not find that the Inspector rewrote the policies that he was considering. In any event, that criticism could apply only to policy ENV 2. In that regard, it was further contended that the inter-relationship between the interim policy ENV 2 and the development plan policy K2 was unclear as a result of the Inspector's approach to it. It is quite clear from paragraph 51 of the decision letter and from paragraphs 17 and 19 of the decision letter that the Inspector was well aware that the objective of the policies was to resist development on land south of Church Road and Whites Lane, Kessingland. In my judgment, the Inspector had a clear understanding of the policies and applied them to the development proposed. He then found that the objective that the policy matrix of the Local Plan and the Interim Local Plan strove to achieve, namely, preservation of the setting of the AONB was not harmed to such an extent that the policies could not be overridden by other material considerations. In this case, those were the benefits of renewable energy which the Inspector looked at as part of the overall balancing exercise in coming to his planning judgment. Again, looking at the decision letter as a whole it cannot be said that the Inspector inverted the statutory test by putting Government policy first and according it more weight than the development plan. When the Inspector refers in paragraph 51 to setting aside the adopted and interim local plan policies that seek to resist intrusive development he is referring, in my judgment, to the statutory test which requires him to determine the application in accordance with those policies first of all before proceeding to go on and consider other material considerations and whether they indicated that the development plan should on this occasion not determine the outcome of the development proposal.
32. It follows from the analysis that I have set out that the questions posed rhetorically by Miss Ellis QC in paragraph 3.1.6 of her skeleton argument are quite capable of being answered on a fair reading of the decision letter as a whole. As to the prejudice claimed as a result of the alleged ambiguity of the Inspector's decision letter, it follows from what I have set out, that the status and weight of each policy is clear on a proper reading of the decision letter.
33. Although Miss Ellis QC refers to the case of North Wiltshire District Council v Secretary of State for the Environment and Others [1992] 3PLR 113 at page 122 f-h and the judgment of Lord Justice Mann, I do not find that that assists. In that part of the judgment Lord Justice Mann deals with the reasons which an Inspector has to give if he disagrees with a previous decision letter. The reason for that is so that, amongst others, there is confidence in the operation of the development control system on the part of the public. That is clearly an important factor. However, in this case as I have set out, it is my judgment that the decision letter here when read properly and as a whole is capable of proper understanding so that no interested party is prejudiced by an absence of reasoning.

Ground 2

Failure to take into account material reconsiderations, namely certain key landscape characteristics and defective reasoning in relation to them

34. The Claimants argument is that PPS 22 in paragraphs 19 and 20 recognises that landscape and visual effect are separate matters. Both, it is submitted, were material considerations in the context of the instant appeal with which the Inspector had to grapple.
35. In particular here, there was evidence before the Inspector from three landscape experts. A distinction had to be drawn, it is submitted, between firstly, landscape character and changes to the landscape and secondly, visual impact and the way the landscape is viewed by people – the visual experience. Because the Inspector dealt only with visual impact he omitted a material consideration and his consequential reasoning was deficient as he failed to deal with part of a significant controversial issue.
36. In paragraph 41 of the decision letter the Inspector found that the two 125 metre high wind turbines would undoubtedly have a significant impact on both the immediate and more distant landscapes to the south and west including the AONB.
37. In the following paragraphs, 42-46, the Inspector begins each with a description of the landscape before setting out his conclusions on the visual impact. Further, in paragraph 43, the Inspector recorded a variety of landscape types within the AONB and in paragraph 48 he found the most significant impact on the landscape would occur within 5 – 600 metres to the south and west of the proposed wind turbines. It is evident that he had in mind objections to the judgment sent out in the environmental impact statement and amendments to it submitted by the appellants from paragraph 4 of his decision letter.
38. It is quite correct that in each of the paragraphs that I have referred to the Inspector did not set out the words "landscape character" separately from "visual impact". In my judgment he was not obliged to do so. He had to analyse the material submitted for and against the development to assess the nature of the landscape and visual impact of the proposals and come to a conclusion as to the degree of harm that would flow from that impact. As part of that exercise, possibly crucially as referred to in the case of Newsmith, he would take into account his own site visits and his own judgment derived from them. Then he had to embark on an evaluation of the harm that he found against the benefits of the proposal. That ultimate exercise is found in paragraph 50 and his overall conclusion in paragraph 51 of the decision letter.
39. Prior to that the Inspector had set out in paragraph 21 when he was going through the process that he set himself to define the main issue that it was inevitable that the proposed wind turbines will by reason of their size and location, have an impact on the landscape character of the AONB, both in near and distant views and on the surrounding countryside in general. The Inspector was, therefore, clearly aware of both elements of analysis in considering the landscape. When that is read, in conjunction with his reasoning in the paragraphs that I have set out, it is clear that the Inspector took a composite view, namely, one that included both landscape and visual impact in coming to his conclusions. He did not therefore omit a material consideration and in my judgment his reasoning was sufficient.
40. In wind farm cases the central issue is often the conflict between landscape harm and the benefits of renewable energy. Paragraph 35 in the decision letter is subject to some criticism by the Claimants when it says:-

"However, the perceived conflict between the policy protection afforded to the landscape, including the AONB, and the Government's policy objectives concerning renewable energy remains unresolved."

41. It is submitted that that leaves something unresolved which then needed to be set out somewhere within the decision letter.
42. Again, the sentence has to be seen in its context. Paragraph 35 is dealing with a summary of the main matters which the Inspector had considered as part of his process to distil the determining issue within the case. That determining issue he sets out in paragraph 36. In that paragraph the Inspector clearly recognises the distinction between the emerging and extant policy objectives to preserve landscape character of the countryside and the degree of visual impact occasioned by the wind turbines on the landscape. The following paragraphs setting out his reasons lead him to determination of that main issue. I am, therefore, unable to accept that the perceived conflict which the Inspector refers to in paragraph 35 is anything other than shorthand for referring to the conflict contained within the main issue, which the Inspector sets out in paragraph 36.
43. Ground 2, therefore, does not succeed.

Ground 3

Misdirection and defective reasoning with regard to Government policy

44. The Claimant submits that PPS 22 sets out clear principles that demonstrate that wind turbine development can be accommodated. To say, as the Inspector did in paragraph 35, that there was a perceived conflict between policy protection afforded to the landscape including the AONB and Government policy objective for renewable energy is a material misdirection of Government policy.
45. PPS 22 sets out key principles in relation to renewable energy in paragraph 1. Key principle (i) reads:-

"Renewable energy developments should be capable of being accommodated throughout England in locations where the technology is viable and environmental, economic and social impacts can be addressed satisfactorily."

46. The key point which emerges from that, in my judgment, is whether, in the particular circumstances of this case, the environmental impact of the development was capable of being addressed satisfactorily. That exercise is carried out by marrying the various impacts from the development proposed in its location to be able to come to a judgment.
47. The Inspector summarises the key principles in PPS 22 in paragraph 9 of the decision letter. In paragraph 15 of the decision letter he summarises the emerging regional spatial strategy for the east of England. That sets targets to be met by renewable energy which are equivalent to 14% of the total electricity in the east of England by 2010 and 44% by 2020.
48. In considering whether the environmental impact could be satisfactorily addressed in the circumstances of this case, the Inspector went through the exercise that I have set out above but had in mind that the appeal site was outside the AONB and therefore outwith the stringent policies that would apply had the development been within the AONB. He was clearly aware, however, of the significant impact of the proposed development within the policy K2 area and found that there was harm to the AONB because of the proposed development in its proposed location outside the AONB but close enough to affect it.
49. The reconciliation of that harm with the degree of need set out both nationally in PPS 22 and in the emerging RSS involved an exercise of judgment about whether the renewable energy development could be addressed satisfactorily in accordance with the key principles set out in PPS 22. Accordingly, I find that the Inspector did not, as a matter of law in posing the test that he did within paragraph 35, misdirect himself as to government policy.
50. Further, having set out within his reasoning section the harm that would flow from the proposed development in paragraph 50 he then balanced that against the need as reflected in other limbs of Government policy. Both paragraphs 50 and 51 set out the ultimate judgment as a result of that reconciliation. The phrase used by the Inspector of "perceived conflict" is no more than, in my judgment, another way of balancing of the various factors that went in to making that ultimate judgment.
51. Accordingly the challenge on ground 3 fails also.

Conclusion

52. Overall, although there are mistakes within the decision letter it is not opaque in any material particular such that the Claimants are not able to understand the reasoning of the Inspector. The degree of particularity within the decision letter has to be seen in the context of a written representations appeal, the submissions that were laid before the Inspector and the site visits that he carried out as part of his decision making process. Whilst not perfect, the decision letter was adequate for its purpose and gave sufficient reasons on the main issues in dispute. Accordingly I dismiss this application.

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