In R (on the application of Ecotricity (Next Generation) Ltd) v Secretary of State for Communities and Local Government [2015] EWCA Civ 657, one of the issues for the Court of Appeal was whether the secretary of state – having recovered a planning appeal against the refusal of the local planning authority to grant planning permission for a wind farm for his own determination – should have undertaken some form of site visit before disagreeing with the recommendations of his appointed inspector. One of the principal issues in the appeal was the landscape and visual impact of the development proposals.
By way of background, the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 apply where an inquiry is held into a called-in planning application or a recovered planning appeal. Rule 16 governs site inspections. The inspector may make an unaccompanied site inspection before or during the inquiry, without giving notice to the parties. He may also, during and after the close of the inquiry, make site inspections accompanied by the applicant, the local planning authority (“LPA”) and any statutory party. He is required to make an accompanied site inspection before or during the inquiry, if requested to do so by the applicant or the LPA. Finally, where he intends to make an accompanied site inspection, he is bound to announce during the inquiry the date and time at which he proposes to make it. No similar provision is made in relation to the secretary of state.
In Ecotricity, the inspector conducted several visits to and around the appeal site, and saw it from a variety of vantage points. He recommended that the appeal be allowed. The secretary of state disagreed, and refused planning permission. The appellant argued that the secretary of state was in a significantly worse position than the inspector to make a judgment about the impact of the proposal on landscape and visual amenity, not having carried out a site inspection himself.
The Court of Appeal rejected the appellant’s argument, against the background of a line of earlier authorities running contrary to it. The test posed in all of those cases was whether the secretary of state had sufficient material before him on which he was reasonably able to make a judgment on the issue of visual impact. In the present case, there was ample material before him. He had enjoyed the benefit of all of the documents, maps, photographs and photomontages made available to the inspector, and, in addition, the inspector’s own detailed comments on those items.
One of the appeal judges stated: “It cannot be the case that a structure which places a minister at the apex of a department aided by information given by others to make decisions requires the minister to descend into the pit and make the primary fact finding decisions himself.”
John Martin is a planning law consultant
