Wind turbine – Screening opinion – Environmental impact assessment (EIA) – Defendant local authority granting planning permission for wind turbine in special landscape area – Claimant applying for judicial review to quash decision – Whether conclusion in screening opinion that EIA not required irrational, inadequately reasoned and failing to acknowledge cultural and historic significance of landscape – Application granted
The interested party applied for planning permission to erect a wind turbine on a site within the designated Carmarthen Bay Special Landscape Area close to the estuary River Taf. The proposed wind turbine would have three blades and have a maximum height of 30m from ground level to its hub, with blades 30m in diameter. It would be coloured off-white to reduce its impact when seen against the sky. There would be a small control house and it was proposed that the turbine would operate for 25 years. To the west of the proposed wind turbine were premises of some considerable significance, namely the boat house and writing shed occupied by the poet Dylan Thomas close to a walk alongside the estuary.
A landscape visual impact assessment (LVIA) by a firm of landscape consultants was submitted with the planning application. It set out the assessment of the area and the degree of impact. There was also a request for a screening opinion pursuant to regulation 5 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. The screening opinion stated that wind turbines were not within schedule 1 to the regulations, so it was up to the discretion of the local planning authority whether an environmental impact assessment (EIA) was required. However, the development fell within schedule 2 to the regulations so that it was for the local planning authority to determine whether or not the project would be likely to have significant effects. While within a special landscape area, which was a local designation, the site was outside the estuary site of special scientific interest, so the impact was considered to have no more than local significance. Accordingly, an EIA was not required. The defendants’ planning committee considered the application and made a site visit before granting full planning permission.
The claimant applied to quash the decision to grant planning permission. He contended, among other things, that the conclusion in the screening opinion that EIA was not required was irrational, inadequately reasoned and in breach of schedule 3 of the 1999 regulations in its failure to acknowledge the cultural and historic significance of the landscape.
Held: The application was granted.
(1) A significant effect on the local area could count as a significant effect for the purposes of the 1999 Regulations. The question whether the area affected was a small one or of local importance was a matter that could be taken into account in determining whether or not an impact was significant. In the present case, the words of the screening opinion itself plainly implied that the effects were of significance, albeit locally. In his approach to that matter, the planning officer had conflated the question of whether the effects would be felt locally with whether the effects would be significant. Reading the planning officer’s report as a whole, it was clear that the officer had actually considered that there would be adverse environmental impacts on the surrounding area and given ample reasons why he had done so. The fact that the effects would be felt locally did not mean that under the 1999 Regulations they were not capable of being significant for the purposes of assessing whether an EIA was required.
(2) There had been at best some considerable confusion in the thinking of the officer. It was not possible to read his words that “it will not give rise to any adverse environmental impact upon the surrounding area” in the context of his report, which had taken great care to set out all of those impacts. Although the interested party’s own LVIA had stated that the perceived magnitude of impact was considered to be moderate-to-low, and therefore the benefits of the scheme should be considered to outweigh any perceived negative effect, the question of benefits was not relevant to the question of whether there were any environmental effects to be assessed. Further, the existence of benefits could not negate any duties that existed in any event under sections 66 or 72 of the Planning (Listed Building and Conservation Areas) Act 1990.
In all the circumstances, the reasoning of the screening opinion was inadequate and had failed to address the question properly of the impact, which had to be considered. It could still have been a brief screening opinion but it had to address the issues properly.
(3) The court had no discretion not to quash the planning permission in the light of the decision of the Court of Appeal in R (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157; [2011] PLSCS 58. In that case, the court had stated that the adoption of a screening opinion, if one was required, was part of a process that led eventually to the grant or refusal of planning permission, if any step in that process was legally flawed, the process as a whole was flawed and the grant of permission had to be quashed. In any event, it was striking that the screening opinion did not address the cultural significance of the boathouse and writing room, which were listed buildings. They had a cultural importance which was not merely local, nor even regional.
Annabel Graham Paul (instructed by Richard Buxton Environmental and Public Law, of Cambridge) appeared for the claimant; Richard Ground (instructed by Administration and Law, County Hall, Carmarthen) appeared for the defendants; the interested parties appeared in person.
Eileen O’Grady, barrister
Click here to read transcript: R (on the application of Davies) v Carmarthenshire County Council
