Planning permission — Material consideration — Local plan — PPG 22 — Balancing need for renewable energy against harm to conservation — Whether inspector gave proper weight to need expressed in PPG 22
The appellants
were refused planning permission for the erection of, inter alia, nine
wind turbines and an electricity substation and for the construction of a wind
farm comprising 17 turbines with ancillary works in North Devon. The Secretary
of State for the Environment, by his inspector, dismissed their appeal. The
appellants challenged the decision of the Secretary of state contending in the court below that the inspector had
misunderstood government policy when balancing the environmental factors
against the need for the development of renewable energy sources set out in PPG
22. There was a presumption in favour of renewable energy. The appellants
appealed against the decision of the court below upholding the Secretary of
State’s decision.
It was not the
inspector’s task to consider all possible ways in which the Secretary of
State’s policy might be achieved by the year 2000 or all possible obstacles in
the way of that achievement. The inspector’s references to emissions of carbon
dioxide were no more than another way of expressing his plainly correct opinion
already considered, that these particular proposals should not have special
status. The inspector did not lose sight of the central policy objective. The
inspector, in failing to identify other suitable sites, did not give less than
proper weight to the need expressed in the policy. There is no indication in
the policy note that each county must make a particular contribution to the
overall need, and it is not the task of an inspector in circumstances such as
these and in the light of the planning objective to consider whether or not
planning permissions might be granted on all other possible sites. The
inspector properly applied his mind to the balancing exercise which planning
policies for renewable energies require. He reached a conclusion he was
entitled to on the basis of policy and on the facts of the case: see pp63H–64G.
The inspector erred in calculating the figures showing the noise impact, the
calculation known as BS4142. However, there was no real possibility that the
correct consideration of the matter would have made a difference to the
decision: see p66C.
to in the judgments
Bolton
Metropolitan Borough Council v Secretary of
State for the Environment (1990) 61 P&CR 343; [1991] JPL 241, CA
Appeal against
the decision of Mr Nigel Macleod QC
This was an
appeal against the decision of Mr Nigel Macleod QC, sitting as deputy judge of
the Queen’s Bench Division, who refused to quash the decisions of the Secretary
of State for the Environment refusing the grant of planning permission.
QC and David Forsdick (instructed by Burd Pearse, of Exeter) appeared for the
appellants, West Coast Wind Farms Ltd.
Robinson (instructed by the Treasury Solicitor) appeared for the first
respondent, the Secretary of State for the Environment.
Wadsley (instructed by the solicitor to North Devon District Council) appeared
for the second respondents.
following judgments were delivered.
PILL LJ: This is an appeal by West Coast Wind Farms Ltd (the appellants)
against a decision of Mr Nigel Macleod QC, sitting as a deputy judge of the
Queen’s Bench Division, whereby he declined to quash decisions of the Secretary
of State for the Environment refusing the grant of planning permission.
On July 21
1994 the inspector appointed by the Secretary of State dismissed appeals
against the refusal of North Devon District Council to grant the appellants
planning permission for the erection of nine wind turbines, electricity
substation and associated works at Fullabrook Barton, West Down, near
Ilfracombe, North Devon, and for the construction of a wind farm comprising 17
turbines plus ancillary works at Crackaway Barton, West Down.
In his
decision letter which followed a local public inquiry, the inspector described
the appeal proposals and the appeal sites and their surroundings. Having
referred to the development plan, he set out the main issues in this way at
para 19:
From all the
evidence to the inquiry, from reading all the written representations and from
my inspection of the appeal sites and their surroundings and those sites
further afield, I consider that the main issues before me in these cases are,
firstly, the effects of the two proposals, separately and in combination, on:
(a) the
landscape of this part of North Devon;
(b) the visual
amenities of occupiers of dwellings in the vicinity;
(c) the
residential amenities of occupiers of dwellings in the vicinity by reason of
noise and disturbance;
(d) the local
economy, and
(e) the
safety of users of the local road network.
The second
main issue is, if serious harm is caused to any of these interests, whether
that is outweighed by the contribution made by the proposals to satisfying the
demand for electricity in the light of Government policy seeking to exploit and
develop renewable energy sources.
The inspector
dealt with each of the factors mentioned in those subparagraphs. He then
concluded at p63, para 70:
From the
above I conclude that the proposed Fullabrook and Crackaway windfarms would,
separately and together, have an unacceptable impact on the local landscape and
would seriously harm the residential amenities of occupiers in the vicinity by
reason of visual dominance and noise. In addition the physical impact of the
associated development, particularly the means of access and the visitor car
park at Burland Cross, would seriously harm the character and appearance of the
landscape around Fullabrook/Metcombe Down. There would also be a significant
adverse impact on the landscape of adjacent landscape protection areas arising
from the size, number and location of turbines in these proposals. Accordingly
I find that these proposals are contrary to the conservation objectives of the
Structure Plan strategy, which seeks to conserve and enhance the special beauty
and characteristics of the Devon countryside, and in particular they are
contrary to the aims of Policies CDE1, CDE3, and CDE4, and would cause serious
harm to criteria 2 and 3 of Policy PRW17. They are also in conflict with the
aims of modified Policies BWC 7 and 63 of the Braunton and West Coast Local
Plan.
The relevant
development plan is the Devon County Structure Plan (third alteration) approved
by the Secretary of State on March 10 1994. The Braunton and West Coast Local
Plan had all but completed the statutory procedure, the inspector found, and
was to be given considerable weight. The inspector found — and this finding is
not challenged on appeal — that the proposals were not in accordance with the
structure plan and the local plan.
Section 54A of
the Town and Country Planning Act 1990 provides:
Where in
making any determination under the Planning Acts, regard is to be had to the
development plan, the determination shall be made in accordance with the plan
unless material considerations indicate otherwise.
The planning
permission should be refused in this case unless material considerations
indicate otherwise.
The issue of
renewable energy was, the inspector rightly found, a material consideration. It
is common ground that the relevant policy document issued by the Secretary of
State as planning authority is PPG 22 dated February 1993 and entitled Renewable
Energy. A reference has also been made to a ministerial statement of March
11 1994 which includes a reference to stimulating ‘diverse, secure and
sustainable energy supplies’.
The inspector
rightly had regard to the contents of those documents. His approach to the
issue, as stated in para 71 of his report, is not criticised:
Thus neither
proposal is in accordance with the development plan for this area. But the issue
of renewable energy is an important material consideration in these cases so
that I have gone on to consider whether the serious harm caused by these
windfarms to interests of acknowledged importance to planning is outweighed by
their contribution towards satisfying the demand for electricity in the light
of Government policy seeking to exploit and develop renewable energy sources.
The policy
note defines renewable energy and considers its advantages and effects.
Reference is made to policy objectives by way of the introduction of
‘electricity generating capacity from renewable energy sources’. The advantage
of such a policy by way of limiting emission of greenhouse gases, including
carbon dioxide is considered. The need to consider objectives in the context of
other planning policies including those for the environment is made plain.
Under the heading Land-Use Planning Matters, the test is set out at
paras 20 and 21 of the note:
20. The aim
of the planning system is to secure economy, efficiency and amenity in the use
of land in the public interest. Planning decisions have to reconcile the
interests of development with the importance of conserving the environment. In
planning for the use of land by energy-generating installations, the
Government’s general aims are:
(a) to ensure that society’s needs for energy
are satisfied, consistent with protecting the local and global environment;
(b) to ensure that any environmental damage or
loss of amenity caused by energy supply and ancillary activities is minimised;
and
(c) to prevent unnecessary sterilisation of
energy resources.
21. Sites
proposed for the development of renewable energy sources will often be in rural
areas or on the coast, and such development will almost always have some local
environmental effects. The Government’s policies for developing renewable
energy sources must be weighed carefully with its continuing commitment to
policies for protecting the environment. It will always be important that a
particular proposal should cause the minimum harm to the countryside or the
coast.
Having dealt
with the renewable energy issue as he understood it, the inspector restated the
test in the immediately following paragraph at the beginning of the section of
his letter headed Conclusions:
In reaching
my final conclusions on these proposals I have carefully weighed the need to
develop renewable energy sources against the continuing need to protect the
countryside …
Having stated
the environmental factors he considered important, the inspector concluded:
All these
factors are matters of acknowledged importance to planning generally, and the
harm caused by the proposals is in my judgment unacceptable, in itself and in
terms of the criteria in Structure Plan Policy PRW17. Because of the weight I
attach to these factors I conclude that this harm is not outweighed by the
benefits of exploiting these particular sources of renewable energy. Hence I
conclude that both proposals should be determined in accordance with the
development plan, and in that light planning permission should not be granted.
No complaint
is or could be made about the requirement for a balancing exercise of the type
the inspector conducted. The appellant’s complaint is that in weighing the
environmental factors with the need for
documents, the inspector has misunderstood government policy and insufficient
weight has been given to the need expressed in the document PPG 22.
Mr John Howell
QC submits that the inspector was at fault in considering the renewable energy
issue by reference to the need to reduce carbon dioxide emissions. He also
submits that the inspector wrongly treated the fact that wind power was only
one of several renewable energy sources as a ground for giving less weight to
the contribution the appeal proposals could make, and that the inspector has
wrongly given less weight to the appellant’s proposals on the ground that the
need expressed in the policy documents could be met elsewhere. Mr Howell
accepts that it is for the inspector to assess the contribution which a
particular proposal may make to the identified need and how much weight to give
to that contribution on the facts of a particular case; but the inspector could
not question the need as expressed in the policy documents.
Government
policy is stated at para 8 of PPG 22:
It is to
stimulate the exploitation and development of renewable energy sources wherever
they have prospects of being economically attractive and environmentally
acceptable.
The need is quantified
in general terms in the note: a ‘medium term target’ is expressed. Para 10
provides:
As part of
this strategy the White Paper …
— that is the
White Paper This Common Inheritance of September 1990 —
… stated that
the Government would work towards a figure of 1,000 Megawatts of new
electricity generating capacity from renewable energy sources by the year 2000.
An indication
of the progress being made towards that goal is given at para 14:
The
Electricity Act 1989 contributes to establishing this equitable framework. It
empowers the Secretary of State to make orders requiring the Regional
Electricity Companies in England and Wales to secure specified amounts of
electricity generation capacity based on renewable sources of energy. Under
this requirement, known as the Non-Fossil Fuel Obligation (NFFO), two orders
have been made — the first in September 1990 was set at 102 Megawatts (MW) of
declared net capacity from 75 projects. The second, announced on 5 November
1991, was set at 457 MW of declared net capacity from 122 projects, divided
into the technology bands set out in Table B.
The inspector
had before him the list of 122 projects, which included 49 wind projects
identified in that table. They included an earlier and different proposal on
one of the present appeal sites for which planning
The inspector
also had before him the ministerial statement of March 11 1994 already mentioned.
In that statement it was noted that over 650 renewable energy projects had been
submitted for the new round of contracts under NFFO3. The minister stated:
Although some
230 of these proposals are for wind energy I would expect to see no more than
twenty or so wind farms result from the next round of NFFO. But this will
depend on developers’ abilities to find sufficient windy sites which are
acceptable in planning terms, particularly from the point of view of noise and
visual impact.
Later the
minister stated:
Government
planning policy requires the environmental benefits of wind and other
renewables to be taken into account but also places just as much emphasis on
the need to protect the local environment.
The challenge
for the wind industry is clear, it must find sites which are acceptable to the
planning process and reduce its costs if its development is to progress.
Those were the
policies in the context of which the inspector had to consider the present
proposals. In the section of his letter headed Renewable Energy Issues,
he first correctly stated that the merits of the policies were not open to
question by him. He then rejected arguments by the local planning authority as
to how he should approach the issue. Having identified the relevant policies, he
need only have proceeded to the balancing exercise which the policies require.
However for reasons not immediately obvious, he embarked upon a more detailed
consideration of the policies. He stated in para 74:
However that
reduction of CO2 emissions, which is relatively modest, can also be
met in other ways. As the Council’s energy witness demonstrated, fossil fuel
generation may be saved by the reduction in electricity consumption arising
from energy saving measures. This is an important plank of Government policy on
taking action to reduce global warming. Secondly, wind power is only one of
several renewable energy sources, all of which secure the same objective of
reducing CO2 emissions and which the NFFO seeks to encourage.
Thirdly, [the appellants] did not contest the Council’s assertion that the
second round of NFFO contracts were oversubscribed, while the third round has
resulted in many more windfarm proposals being submitted than are likely to be
approved, so that there is no national shortfall of projects of this type.
Finally, in a local context, the Council and others drew attention to another
site, at Hore Down, where an application was made for a windfarm development
but was subsequently withdrawn. Nevertheless their planning witness said that he
had been advised that a new application was imminent, and that on another site
some 14km to the east, he had received an application for an anemometer prior
to the expected submission of a planning application for a windfarm. These are
both in an area of identified high mean wind speeds.
75. I
recognise that all these matters are complementary to windfarms in
general and, on the final point, to these proposals in particular. Therefore
they are not alternatives which might indicate that there is no need for the
developments before me. But their existence does show that the benefits claimed
for these developments are by no means unique to windfarms, nor that these are
the only sites in this area where such benefits could be realised. In this
context I have noted the comments of the County Engineer and Planning Officer,
when reporting to his Committee on these proposals in June 1993, that there are
a limited number of locations in the County where wind resource availability is
not constrained by landscape policy considerations, and unless proposed
developments such as these are allowed to proceed it is difficult to see how
the County can make a worthwhile contribution to energy production from its
renewable wind resource. But that does not alter my view that other developable
means of renewable energy exist and that there are other sites, even in a local
context, with potential for wind energy development. From this I conclude that,
whilst the greatest importance should be attached to the need to reduce CO2
emissions and their adverse effects on global warming, these proposals are but
two amongst many measures which would help in achieving that national policy
aim. Accordingly I do not accept that there is a national or local need for
these particular proposals which could not be met elsewhere and which would
merit their being afforded the greatest weight. Hence on this issue I attach
less weight than your arguments demand.
(I add that I
read the word ‘complementary’ at the beginning of para 75 as meaning ‘relevant’.)
The court has
heard submissions as to why the inspector embarked upon that exercise, and
reference has been made to the last expression in para 75: ‘less weight than
your arguments demand’. It is necessary to consider how the appellants put
their case to the inspector. Their planning witness Mr MW Turner included in
his written statement a section headed ‘The balance between the need for
renewable energy and the importance of conserving the environment’. That
referred to the environmental aspect of the balance, but also included the
following statements:
The Secretary
of State’s decisions use the term ‘need’ and ‘national need’ in relation to
renewable energy, which is some indication of the weight to be attached to the
Government’s policy to encourage the use of wind energy. This is the same
terminology as appears in paragraph 30 of PPG1.
Among his
conclusions, Mr Turner stated:
(iii) In so
far as any [environmental] impacts are identified, these must be weighed
against the national need for the development.
In affidavit
evidence which is not disputed, it is stated that a part of the appellant’s
case before the inspector was that there was a presumption in favour of
renewable energy and wind energy in particular, and that:
Government
regarded it as absolutely essential to develop and exploit as much as possible
all sources of renewable energy.
Para 30 of PPG
1 at March 1992, relied on by Mr Turner, states:
Local
planning authorities or the Secretaries of State may find it appropriate, on
occasion, to permit a development proposal which departs from the development
plan because the particular contribution of that proposal to some local or
national need or objective is so significant that it outweighs what the plan
has to say about it. Such a consideration might be, for example, compelling
argument by the applicant or appellant that a particular proposal should be
allowed to proceed because of the contribution it will make to fulfilling an
international commitment, or to some other particular objective which the plan
did not foresee or address.
Consideration
of the appellant’s case before the inspector provides the overwhelmingly likely
reason for the inspector embarking upon the exercise he conducted in paras 74
and 75. Apart from anything else, there is no conceivable reason why he should
refer to ‘local need’ (a concept which does not appear in PPG 22) unless he was
considering an argument based on para 30.
The inspector
was rejecting a submission advanced to him on the basis of para 30 — among
other things — that the usual balancing exercise was not appropriate because of
the particular contribution which it was claimed that the proposals would make
to ‘some local or national need’ and that it was so significant that the
development plan was outweighed.
I have no
doubt that the inspector was right to reject that argument. The wording of PPG
22 — including the statement and quantification of need, the options open and
the progress made — is such that it could not realistically be claimed that the
contribution of these particular proposals to the need was such that special
treatment by way of presumption or additional weight given to need was required
in the balancing exercise. That argument could have been dealt with summarily
by the inspector in the circumstances of this case. It could not sensibly be
suggested that there were no other sites with potential for wind development or
that realistic and substantial other options were open to meet the need
expressed in the policy documents.
I do not
consider that the presence of a policy aim ‘to prevent unnecessary
sterilisation of energy resources’ (para 20 of PPG 22) creates any presumption
in favour of development as argued by Mr Howell; nor does the presence of the
word ‘wherever’ in para 8. I reject Mr Howell’s argument that the current
policy documents provide a presumption in favour of projects such as the
present. It would of course be open to the Secretary of State as events develop
to create a presumption if he considered that the achievement of his policies
upon renewable energy required it.
It remains to
be considered whether the inspector by going into unnecessary detail has
rendered his decision quashable. It was not the inspector’s task to consider
all possible ways in which the Secretary of State’s policy might be achieved by
the year 2000 or all possible obstacles in the way of that achievement. It is
clear that one reason for the government’s policy to stimulate the development
of renewable energy
references to emissions of carbon dioxide are however no more than another way
of expressing his plainly correct opinion already considered that these
particular proposals should not have special status. If there are other ways of
achieving the policy aims, it must follow that there are other ways of reducing
carbon dioxide emissions. The inspector cannot have lost sight of the central
policy objective.
The same
applies to his response to other ‘renewable energy sources’. The inspector is
merely stating the obvious. There is no national shortfall of projects. The
inspector’s reference to the possibility of other sites locally being used
acknowledged the difficulties which promoters of wind turbines may have in
relation to planning policies in Devon. It is submitted by Mr Howell that there
was no evidence that the other local sites were reasonably likely to obtain
planning permission and that the inspector failed to take account of that.
Having failed to identify other sites, it is submitted, the inspector should
have given greater weight to need. However there is no indication in the policy
note that each county must make a particular contribution to the overall need,
and quite apart from that it is not the task of an inspector in circumstances
such as these and in the light of the very generally stated medium term
planning objective to consider whether or not planning permissions might be
granted on all other possible sites in Devon and beyond. As the Secretary of
State put it in his decision on the 1992 appeal:
Each case
should be determined in the light of its own particular circumstances.
Having regard
to the relevant planning criteria, it is in present circumstances little more
than stating the obvious to say that other potential sites exist. It does not
follow from the inspector’s reference to other potential sites, in the context
already considered, that he gave less than proper weight to the need expressed
in the policy. It does not follow that he gave less weight than he should have
done.
The important
question is whether the inspector applied his mind properly to the balancing
exercise which planning policies for renewable energies require. I have no
doubt that he did. The contents of his unnecessarily detailed comments upon
this issue do not, in my judgment, cast doubt upon that. Having dealt with and
rejected the appellant’s argument for special status for these proposals, he
immediately restated — in a paragraph already quoted — the correct test and
reached a conclusion he was entitled to reach on the basis of policy and on the
facts of the case. His decision should not be quashed on this ground.
Before leaving
this aspect of the case, I take the opportunity to commend the usual practice
of including in inspectors’ reports and decision letters a summary of the
appellant’s case on an issue such as this. Had the inspector set out what
submission he was considering in the section of his letter entitled Renewable
Energy Issues, the possibilities of confusion and misunderstanding would have
been much reduced.
The second and
separate submission made by the appellants is that the inspector misunderstood
figures showing the noise impact of the appeal proposals. It is submitted that
the inspector erred when applying a method of calculation known as BS4142.
(That is a method for rating industrial noise in mixed residential and
industrial areas.) It is submitted that he erred in comparing existing free
field noise levels with predicted noise levels for the facade at several
identified buildings. Noise measured 1m from the facade of a building should be
taken to be 3 dB higher than the free field level, and the inspector failed to
make that deduction for the purposes of comparison. The result was that
differences between existing and predicted noise levels at those locations were
stated to be 3 dB higher than they should have been.
I approach the
case on the basis that the inspector did make that error. It is an
understandable error in that he was presented at the inquiry with a document
said to be an agreed document in which figures were given but the adjustment
was not made. That was unfortunate.
The council
also argued at the inquiry that in predicting future noise levels 3 dB should
be added to the appellant’s figures because of the method of calculation used,
5 dB for the tonal component penalty for BS4142 procedure said to be applicable
to noise sources such as turbines, and a further 2 to 4 dB(A) for measurement
inaccuracies, production tolerance and wear and tear of turbines in use.
Having made
comparisons at the several properties concerned, the inspector stated:
In all cases
my comparison has been made using [the appellant’s] witness’s measured
background noise levels (L90) with his predicted noise levels for
the facade Leq. Given the criticisms by the Council’s noise witness of some
aspects and factors in those predictions, the inherent uncertainties in
predicting noise emissions from plans, and the effects of wind and temperature
on noise propagation, I regard these estimates of increases as probably
conservative and hence robust.
The increases
expressed for the properties where measurements were taken were in the range 8
to 13 dB(A). Subtracting 3 dB(A) from each of these figures still gives a
significant increase in noise levels at the several properties on the basis of
the appellant’s figures.
BS4142 makes
an assessment at para 8.2 for what is described as ‘complaint purposes’:
A difference
of around 10 dB or higher indicates that complaints are likely. A difference of
around 5 dB is of marginal significance. At a difference below 5 dB, the lower
the value the less likelihood there is that complaints will occur.
The section of
the inspector’s report dealing with noise is long and detailed. In addition to
testing by the BS4142 method, he tested by ‘sleep disturbance criteria’ which
were in fact the criteria preferred by the appellants. The inspector also
considered relevant the effects of noise on ‘the enjoyment, by occupiers of
dwellings in the vicinity, of their gardens
concluded at para 58:
… Overall,
harm would be caused to the residential amenities of those occupiers by reason
of noise. Bearing in mind all the evidence on the subject, including the
anecdotal but unchallenged evidence of local residents on their experiences of
sound propagation in this area, I believe that there is a real likelihood of
such harm. Hence I conclude that this noise issue weighs against permission for
either or both proposals.
The inspector
also expressed his reasons for having regard to criteria in addition to those
in BS 4142. He stated in para 48:
Therefore in
my opinion the only reasonable way to take account of the above conflicts and
inconsistencies is for me to consider the noise evidence using both methods and
to draw general overall conclusions in their light.
Having regard
to the overall approach which the inspector adopted and was entitled to adopt,
and the comments he made when considering the evidence of noise, I do not
consider it to be a real possibility that his general conclusion upon noise
impact would have been different or the weight to be given to the noise factor
in the overall balance would have been different if he had not made the mistake
he did in relation to one set of figures in referring to specified properties.
To adopt and adapt the language of Glidewell LJ in Bolton Metropolitan
Borough Council v Secretary of State for the Environment (1990) 61
P&CR 343 at p353, there was no real possibility that correct consideration
of the matter would have made a difference to the decision. I would not quash
the decision on this ground. I would dismiss this appeal.
BUXTON J: I agree with Pill LJ that the appeal should be dismissed. I
venture to add only a very few words of my own.
The inspector
was concerned with two policy issues. The first was that set out in section 54A
of the Town and Country Planning Act 1991 and reflected in PPG 1: broadly
stated, that departures from the assumptions of a development plan will normally
need to be justified by convincing reasons, the particular instance cited being
of some particular local or national need for the proposed development.
The second
policy issue was the special considerations relating to developments in
connection with alternative sources of energy, policy on which is set out in
PPG 22.
The
inspector’s approach to these two policies and the relationship between them is
set out in para 19 of his decision, which has already been read by Pill LJ. I
am quite satisfied that the inspector properly understood the policy in PPG 22
and applied it in this case. I reject the suggestion made by Mr Howell QC that
the inspector wrongly applied the policy in terms only of looking at its
relationship to the reduction of the emission of carbon dioxide or other
greenhouse gases.
The inspector
correctly states the nature of the policy in para 72 of his
energy issue’. He says in the first sentence:
My starting
point here is Government policy as set out in Department of Energy Paper 55 and
repeated in PPG22, that is, to stimulate the exploitation and development of
renewable energy sources wherever they have the prospect of being economically
attractive and environmentally acceptable.
That is stated
in the same terms as para 8 of PPG 22, which also Pill LJ has already read. In
other parts of PPG 22, the desirability of reduction of carbon monoxide
emissions is so prominent a ground of, and basis of, the policy that it is
understandable that in referring to policy elsewhere in his decision letter the
inspector should on occasion thereafter have spoken exclusively in terms of
reduction of emissions. But he was not confining himself to that issue but
addressing the policy as a whole as set out in the guidance note that he had
cited. Moreover, and in any event, counsel was unable to suggest any specific
issue that would have been treated differently and wrongly if the inspector
indeed had been confining himself to the policy as viewed solely in connection
with the emission of greenhouse gases.
As the
inspector’s initial statement of his task indicates, he also correctly
discerned that PPG 22 is a policy of balance. That aspect of it is made clear
throughout PPG 22 and is encapsulated in a sentence in para 21 thereof, which
again Pill LJ has read but I will repeat:
The
Government’s policies for developing renewable energy sources must be weighed
carefully with its continuing commitment to policies for protecting the
environment.
To strike that
balance, on the basis of the extensive evidence and submissions that were
received at the inquiry, is quintessentially the task of the inspector, once it
is clear that he has correctly identified the nature of his task and answered
the right question on the basis of the evidence before him. For my part, I do
not think it is appropriate that his reasoning and his explanation of how he
has performed that task should be subject to the minute and detailed analysis
that it has received before the deputy judge and before this court. Reading the
decision letter fairly and as a whole, it is clear that the inspector found
that there were very substantial objections on environmental grounds to the
proposals, which objections were not outweighed or offset by any need for this
particular development as part of the accepted overall policy of encouraging
the extension of alternative energy sources.
Those
conclusions were clearly open to him on the evidence and as a matter of his
assessment and judgment. In the present case, however, I go further and say
that even if the matter is looked at, not in that broad way, but by the much
closer and more detailed inquiry of each separate part of the inspector’s
reasoning that was adopted by the appellants, there is no legitimate criticism
to be made either of the inspector’s reasoning or of the
matters. I agree with his observations and do not repeat them. In particular I
should note, however, that I agree with what he has said about the separate
issue of noise, where it can be said that the inspector made an error in one
part of his reasoning.
I would
however reinforce one point of what Pill LJ has said. Some of the matter
criticised by the appellant can be seen, now that we have investigated the
arguments before the inspector in detail, only to have been included in the
parts of his letter where he indicates his decision in order to explain the
inspector’s view as to contentions raised at the inquiry which he was not able
to accept. I agree with Pill LJ that if the inspector had set out those
contentions separately in his letter, and then had indicated separately, albeit
very shortly and summarily, why he was unable to accept them, some of the
difficulties found by the appellant in the structure and detail of the
paragraphs of his letter where his decision is recorded might have been more
easily avoided.
In the event,
however, for the reasons I have indicated, I would dismiss this appeal.
SIMON BROWN
LJ: I, too, agree that for the reasons given by
Pill LJ and Buxton J, this appeal should be dismissed.
I wish however
to add a short paragraph of my own addressed essentially to the approach
adopted generally by planning inspectors in the writing of their decision
letters. As my lords’ judgments make plain, the critical balance which fell to
be struck by the inspector here was between, on the one hand, the damaging
impact of these proposed developments on the environment, residential amenities
and the like, and, on the other hand the benefits of exploiting these
particular sources of renewable energy. One has the clear impression here that
the inspector regarded this balance as falling very clearly indeed in favour of
the environment and therefore against these appeals. But he never actually said
so. There could accordingly, in my judgment, be no question here of the court
declining to quash the decision on this aspect of the case (I am not now
referring to the narrow issue of noise) by invoking the principles, to which my
lord has referred, established by this court in Bolton Metropolitan Borough
Council v Secretary of State for the Environment (1990) 61 P&CR
343. I may or may not have correctly divined the inspector’s view here and his
clear and emphatic preference in the matter. I repeat, he did not put the
matter sufficiently beyond doubt to the point where one could say that there
was no real possibility that, but for a particular error had one been
identified, a different decision would have been reached. He ultimately
concluded merely that one particular interest was ‘not outweighed’ by the
other. This paragraph is by way of a plea to inspectors that in those cases
where it really is their clear and emphatic judgment that the balance falls
very decisively one way or the other and that whatever they had thought about
some particular point or another would really have made no difference to their
final decision, they state plainly that that is indeed the case. That would be
of great assistance to the courts who
with regard to them.
For the
reasons given by my lords, this appeal fails and is dismissed.
Appeal
dismissed.
