Planning appeal – Public inquiry – Application for planning permission for wind farm on moorland with peat deposits – Inspector recommending refusal of permission on ground of risk of unacceptable harm to peat bog habitat – Refusal of permission quashed on ground of inadequate reasons – Whether inspector given sufficient reasons for departing from view of respondent’s experts – Whether procedural unfairness in failing to put provisional view to experts – Appeal dismissed
The respondent appealed to the appellant ministers against a deemed refusal of planning permission for a wind farm. The proposed wind farm consisted of 19 wind turbines on a site on the northern outskirts of Swansea, within an area of grazed moorland with peat deposits. The environmental statement submitted with the respondent’s planning application indicated that the wind farm infrastructure would be sited away from areas of significant peat cover. However, a report on peat depth, which the respondents commissioned in the light of guidance issued by the Countryside Council for Wales, indicated that the peat resources on the site were more substantial that had originally been thought and that significant depths of peat underlay the proposed position of several turbines and the main access track.
At a public inquiry, the planning inspector found that although the renewable energy benefits of the wind farm proposal would outweigh its conflict with the development plan, permission should still be refused owing to the risk of an unacceptable degree of harm to the peat bog habitat. He found that such harm could not be overcome by imposing conditions as to micro-siting of the turbines and that, although a relatively minor redesign of the layout might remove most of the impact on the peat deposits, that would result in a different proposal, which could not be considered simply as an amendment to the application before him. The appellants dismissed the appeal on the inspector’s recommendation.
The respondent applied to quash the appellants’ decision, contending that the inspector had given inadequate reasons for disagreeing with the evidence of its experts that the significant effects of the proposal on ecology and hydrology would be minimal. That claim was allowed in the court below: see [2011] EWHC 1778 (Admin). The appellants appealed.
On the appeal, the respondents raised a further argument of procedural unfairness, contending that the inspector should have put his provisional view on harm to the respondent’s experts to give them an opportunity to address his concerns.
Held: The appeal was allowed.
(1) The central question for the inspector was whether the particular harm, or risk of harm, associated with the development was sufficient to justify a refusal of permission. The inspector needed to ascertain the degree of harm that the project would cause, taking into account the proposed mitigation measures. That was not a technical issue outside the inspector’s expertise, which he could only resolve by reference to the expert evidence before him. Although the expert evidence required careful consideration, the inspector was not bound to accept the opinion of the respondents’ experts and was not disentitled from making his own planning judgment as to whether the effect on the peat bog habitat was significant.
The inspector’s reasoning could not legitimately be criticised. When considering the adequacy of his reasons, the background to the decision had to be taken into account. The respondents were well aware of the issues involved, understood the importance of peat bog habitats and had expressed an intention to keep off deep peat. In the event, they had failed to do so; they had sited several of the proposed turbines and the main access track where the peat was deepest. In the inspector’s view, a relatively minor design might have removed most, if not all, of the impact. In that context, the inspector’s reasoning was sufficient and elaboration was not required. The care with which the inspector approached the issues, and the coherence of his general reasoning, could leave no doubt that his mind was concentrated on the issues before him. There was nothing more that he could be expected to say to explain why, in his judgment, the effect of the peat bog habitat was significant and not merely minimal: South Bucks District Council v Porter [2004] UKHL 33; [2004] 1 WLR 1953 and Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373 applied.
(2) There had been no procedural unfairness. Castleford Homes Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 77; [2001] EGCS 18 applied. Ecology had plainly been “flagged up” as an issue and the respondents had been well aware of it. The inspector had not been obliged to put his provisional view as to the significance of any impact to the respondent’s experts. He might not have formed a view until he had fully considered the evidence after the inquiry. There was no suggestion that he had led the respondent’s experts to believe that he was in their favour or that he otherwise discouraged them from giving such evidence as they wished to give. He was not required to tell the witnesses that he might not accept their opinions: that was, or should have been, obvious. The respondents knew that the inspector had to make a planning judgment and they had had every opportunity to put their case to him.
Clive Lewis QC (instructed by the Treasury Solicitor) appeared for the appellants; Gordon Nardell QC (instructed by Eversheds LLP) appeared for the respondent.
Sally Dobson, barrister
