The decision of the Court of Appeal in Welsh Ministers v RWE Npower Renewables Ltd [2012] EWCA Civ 311 usefully illustrates two aspects of an inspector’s duties in relation to a planning appeal, and also the limitations on those duties. In that case, the Welsh Ministers accepted the recommendation of their inspector – following a public inquiry – and refused planning permission for a wind farm consisting of 19 wind turbines. The appeal site was situated on grazed moorland, containing peat deposits. The inspector had found that although the renewable energy benefits of the wind farm proposal would outweigh its conflict with the development plan, permission should be refused owing to the risk of an unacceptable degree of harm to the peat bog habitat. Furthermore, that harm could not be overcome by imposing conditions.
The developer’s first contention was that the inspector’s decision was insufficiently reasoned. More particularly, he had given inadequate reasons for disagreeing with the evidence of its expert witnesses that the significant effects of the proposal on ecology and hydrology would be minimal. The court rejected this argument, holding that while the expert evidence required careful consideration, the inspector was not bound to accept the opinion of the expert witnesses and was not disentitled from making his own planning judgement on the question. His reasoning could not legitimately be criticised. When considering the adequacy of an inspector’s reasons, the background of his decision had to be taken into account. Here the developer was well aware of the issues involved, and of the importance of peat bog habitats.
The developer’s second contention was that there had been a procedural unfairness. The inspector should have put his provisional view on harm to the developer’s expert witnesses when they gave evidence so as to give them an opportunity to address his concerns. The court rejected this argument also, holding that the inspector was not obliged to put his provisional view to them. In fact, he may not have formed a view until he had fully considered the evidence after the inquiry. He was not required to tell the expert witnesses that he might not accept their opinions; that was, or should have been, obvious. The developer knew that the inspector had to make a planning judgment, and it had every opportunity to put its case to him.
John Martin is a freelance writer
