Ecotricity (Next Generation) Ltd v Secretary of State for Communities & Local Government

This is an appeal against the order dated 27 June 2014 of Mitting J dismissing the appellant’s application under section 288 of the Town and Country Planning Act 1990 (“the Act”) to quash the decision dated 25 February 2014 of the Secretary of State to dismiss the appellant’s appeal under section 78 of the Act against the refusal of the Sedgemoor District Council to grant planning permission for a wind energy development comprising four wind turbines with a maximum overall height of 120 metres together with certain ancillary facilities on land to the south of Poplar Farm, Puriton Road, West Huntspill, Highbridge in Somerset.

The Inspector held an enquiry into the appellant’s appeal in February and May 2013. The Secretary of State recovered jurisdiction in October 2013 so the Inspector reported to the Secretary of State in a report dated 5 November 2013. In that report the Inspector recommended that the appellant’s appeal should be allowed and planning permission should be granted subject to conditions. The Secretary of State disagreed with that recommendation, dismissed the appeal and refused planning permission. Mitting J’s judgment dismissing the appellant’s challenge to the Secretary of State’s decision can be found at [2014] EWHC 2699 (Admin).

The notice of appeal contains two grounds of appeal as follows:

“1.

The learned judge was wrong to hold that it is not necessary for the Secretary of State to have had regard to the supporting text to Sedgemoor District Council Core Strategy Policy D4 and in particular paragraph 5.39 of that supporting text where the Secretary of State disagreed with his appointed Inspector and concluded the proposed development was in conflict with Policy D4. Alternatively, the learned judge was wrong to find that the Secretary of State was not required to give reasons in his decision letter in relation to that matter.

2.

The learned judge was wrong to hold that the Secretary of State was not required to undertake some form of site visit before disagreeing with the recommendation of his Inspector and refusing planning permission. Alternatively, the learned judge was wrong to hold that the Secretary of State did not have to take into account relevant guidance which advised that such a site visit was necessary and that the Secretary of State was not required to give reasons in his decision letter in relation to that matter.”

When dealing with “preliminary matters” the Inspector noted that the local planning authority had refused planning permission for three reasons, the first of which was landscape and visual impact. The second reason, cumulative impact, was no longer relevant because the other application for a wind farm at Withy Farm had been refused planning permission and there had been no appeal. It was accepted that the third reason, impact on protected species, could be mitigated by planning conditions. It followed therefore that the principal issue was landscape and visual impact.

The Inspector said that he had had regard to the environmental statement which was submitted with the application:

“The ES contains 20 photomontages (PM) based on photographs taken from agreed viewpoints (VP) within the wider area. I am satisfied that these PMs are adequate in terms of their accuracy and quality and that they form a reasonable basis for judging the visual impacts of the proposed turbines.”

In paragraph 4 the Inspector identified the main issues as “(1) landscape character and public visual impact and (2) wildlife interests of local national and international importance”. The Inspector resolved the second issue in the appellant’s favour. The Secretary of State agreed with the Inspector’s conclusions in that respect. In this appeal we are simply concerned with issue (1).

The Inspector summarised the relevant development plan policies in paragraphs 6-8 of the report. The relevant development plan policies were those contained in the Sedgemoor District Core Strategy (CS). In paragraph 6 of the report the Inspector said:

“[…] CS Policy D4 says that a renewable energy generation proposal will be supported provided it would not have a significant adverse impact on, amongst other things, landscape character, visual amenity, biodiversity, local residents and other users of the area. […]”

The Inspector continued in paragraph 7:

“The supporting text to Policy D4 refers to a study, PPS1 Supplement Study: Planning and Climate Change October 2010 (the Study), produced by Arup to provide an evidence base on renewables to inform energy policies, plan preparation and development control across the district. With the qualification that a landscape and visual assessment of sites had not been carried out, the Study identified 5 potential areas for wind energy schemes. These 5 areas included land near Huntspill and referred to the appellant’s scheme. The CS states that: ‘…this potential is largely for stand-alone wind projects, which, although not extensive, may be of significance regionally. It will be important to utilise this capacity, estimated to be approximately 28MW, in order to contribute to regional and national renewable energy targets.’”

Pausing there, Policy D4 deals with renewable/low carbon energy generation and materially provides as follows:

“The Council will support proposals that maximise the generation of energy from renewable or low carbon sources, provided that the installation would not have significant adverse impact taking into account the following factors:

• The impact of the scheme, together with any cumulative impact (including associated transmission lines, buildings and access roads), on landscape character, visual amenity, historic features and biodiversity;”

Paragraphs 5.38-5.45 of the CS explain the context for this policy. The study is referred to in paragraph 5.39 as follows:

“The Council has undertaken a study to assess the potential for renewable and low carbon energy in the District (the PPS1 Supplement Study).

• Findings suggest that while potential for renewable or low carbon heat production is limited, there is some capacity in Sedgemoor for renewable electricity production. This potential is largely for stand-alone wind projects, which, although not extensive, may be of significance regionally. It will be important to utilise this capacity, estimated to be approximately 28MW, in order to contribute to regional and national renewable energy targets.”

Although the study considered constraints including landscape constraints on wind farm development at a strategic level, it was, as the Inspector said in paragraph 7 of the report, subject to a qualification as follows:

“It has not been possible to conduct a landscape and visual assessment of the sites identified through this study, but such assessments would be required for any planning application for large wind turbines. Such detailed studies on a site by site basis might further erode or expand the potential sites suitable for wind turbines.”

The study continued in the following paragraph:

“Of the sites identified as part of the constraints mapping exercise, only Site 4 [which includes the appeal site] has been taken forward at this stage in respect of onshore resource availability. This does not in any way mean that SDC would endorse this site and suitable environmental assessments and a planning application would be required before the development of any wind turbines. However the constraints analysis does provide a good indication of the scale of development that could be undertaken and the consequential CO2 reduction opportunities.”

Returning to the Inspector’s report, the Inspector mentioned in paragraph 10 the Government’s “Planning Practice Guidance for Renewable and Low Carbon Energy”. That document amongst other matters made the point that local topography is an important factor, recognising that the impact of wind turbines can be as great in predominantly flat landscapes as in hilly areas.

Having summarised the relevant policy framework, the Inspector considered the first issue, landscape and visual impact. He said that the appellant’s assessment of the landscape and visual impact of the proposed development was based upon applying amongst other things the Landscape Institute’s Guidelines for Landscape and Visual Impact Assessment (GLVIA). He disagreed with the appellant’s identification of a “hybrid character zone” covering an area of approximately two kilometres around the turbines with a local landscape sensitivity of “medium to low” resulting in a “medium to high” capacity to accept a medium scale wind farm development.

The Inspector said in paragraphs 20 and 21 of the report:

“In light of the above, I agree with the lpa that, from a number of the PM vantage points, the significance of the landscape and visual effects of the Report ... are understated. The particular viewpoints affected are VPs 1 to 6, which are within a 2km zone of the proposed site. In this area, I consider the development would result in the creation of a wind farm landscape and the impact of the development would be significant in ES terms. The key impacts on the immediate landscape would be felt most in views obtained by drivers/pedestrians on the A38 and walkers on the permissive path along the raised banks of the Huntspill River. Thus, given their height, the turbines and the rotating blades would have a significant impact on the immediate landscape, where they would become a major component of that landscape and have a significant public visual impact.

Notwithstanding the above conclusion, I consider the VPs referred to, particular the views from the A38 (VP4) and from the Huntspill River show a worst case scenario. Indeed, within this 2km zone, there are many areas where, given the presence of buildings and/or mature planting, there would be no views or only very limited views of some of the turbines. This reinforces the point made in the lpa’s own assessment of The Levels sub-area in the Sedgemoor Landscape Assessment and Countryside Design Summary. Beyond this 2km zone, the landscape and visual impact of the turbines would decrease with distance. National guidance/policy acknowledges that there will always be significant landscape and visual impacts for several kilometres around a site. Thus, the fact that the visual effects would be significant does not necessarily equate to unacceptable harm.”

The Inspector then considered the views from more distant viewpoints and concluded that in long range views the turbines would appear as relatively small components in the overall view. He further concluded that the visual impact of the scheme when viewed from Brent Knoll would not be significant and that there would be no harm to the setting of the Mendips AONB.

The Inspector’s overall conclusion on issue 1 is contained in paragraph 25 of the report in which he said this:

“Bringing all these matters together, national guidance/policy acknowledges that there will always be significant landscape and visual impacts for several kilometres around a site. Thus, whilst I consider that within a zone approximately 2km around the site there would be significant landscape and visual impact, having regard to the test posed by CS Policy D4, that change would not be significantly adverse or unacceptable. Overall the substantial and broad scale of the sky and The Levels landscape would allow these defining features to remain the dominant visual and physical characteristics and enable the landscape it to absorb the substantial, but very slender, scale of these turbines.”

The Inspector then considered a number of other issues, all of which he resolved in the appellant’s favour. The Secretary of State did not disagree with the Inspector’s conclusions in respect of any of these other issues.

In paragraph 7 of the decision letter the Secretary of State said under the heading “Policy considerations” that:

“In this case, he agrees with the Inspector (IR5) that the development plan comprises the Sedgemoor District Core Strategy 2011 (CS) and the saved policies in the Sedgemoor District Local Plan 1991-2011 (LP). He considers that the policies most relevant to [this] appeal are those set out by the Inspector at IR6 to 8.”

In paragraph 9 of the decision letter the Secretary of State agreed with the Inspector’s identification of the two main issues. The Secretary of State dealt with landscape and visual impact in paragraphs 10-14 of the decision letter as follows:

“10.

The Secretary of State has given very careful consideration to the Inspector’s analysis at IR14 – 21. He has had regard to the fact that, in common with the Council, the Inspector considers that from a number of the photomontage vantage points, the significance of the landscape and visual effects of the scheme are understated. He observes that the Inspector considers that the particular viewpoints affected are VPs 1 to 6, which are within a 2km zone of the proposed site and that, in this area, the Inspector advises that the development would result in the creation of a wind farm landscape and that the impact of the development would be significant in ES terms (IR20). He notes the Inspector’s opinion that the key impacts on the immediate landscape would be felt most in views obtained by drivers/pedestrians on the A38 and walkers on the permissive path along the raised banks of the Huntspill River and that, given their height, the turbines and rotating blades would have a significant impact on the immediate landscape, where they would become a major component of that landscape and have a significant public visual impact (IR20).

11.

The Secretary of State has taken account of the Inspector’s observation that, beyond the 2km zone, the landscape and visual impact of the turbines would decrease with distance (IR21). He has had regard to the Inspector’s statement that national guidance/policy acknowledges that there will always be significant landscape and visual impacts for several kilometres around a site and that the fact that visual effects would be significant does not necessarily equate to unacceptable harm (IR21). He has also had regard to the Inspector’s comments about the landscape around the site and the wider Somerset Levels including his view that although the appeal development would alter the nature of the view from certain locations, the very significant and very broad scale of the sky and The Levels landscape would allow these features to remain the dominant visual and physical characteristics of the area and that the landscape would be able to absorb the turbines without significant harm and that in long range views the turbines would appear as relatively small components of the overall view (IR22).

12.

The Secretary of State has taken account of the Inspector’s view that the overall landscape and visual impact of the scheme when viewed from Brent Knoll would not be significant (IR23) and that the character and settings of the Quantock Hills and Mendip Hills Areas of Outstanding Natural Beauty would not be harmed (IR24).

13.

The Secretary of State has considered the Inspector’s overall findings on the scheme’s landscape and visual impact, including his view that, having regard to the test posed by CS Policy D4, the change which the scheme would bring about would not be significantly adverse or unacceptable. The Secretary of State does not share this view. The Secretary of State has had regard to paragraph 15 of the Planning Practice Guidance for Renewable and Low Carbon Energy which states that local topography is an important factor in assessing whether wind turbines could have a damaging effect on landscape and which makes clear that the impact of wind turbines can be as great in predominantly flat landscapes as in hilly or mountainous areas. He has given careful consideration to photomontage VPs 1-6, the Inspector’s comments on these at IR20-21 and paragraphs 6.43 – 6.50 of the Council’s Landscape Proof of Evidence. In the view of the Secretary of State the evidence shows that the scheme would have a significantly adverse impact from those viewpoints, especially where the view is not screened, for example by trees. In view of this finding, he disagrees with the Inspector that no conflict would arise with CS Policy D4. He also concludes that conflict arises with CS Policy D14 as he considers that the scheme would have a significant adverse impact on local landscape character, scenic quality and distinctive landscape features, albeit this impact is limited to the area within about 2km of the appeal site.

14.

In conclusion, the Secretary of State is satisfied that the appeal development would not have a harmful impact on the landscape when viewed from Brent Knoll and it would not harm the character and settings of the Quantock Hills and Mendip Hills Areas of Outstanding Natural Beauty. For the reasons given by the Inspector at IR22, he sees no reason to disagree with him that from the locations of VPs 10, 11, 12, 13 and 15 the scheme would be dwarfed by the landscape and that in long range views the turbines would appear as relatively small components of the overall view. However, he considers that the scheme would have a significantly adverse impact within a zone of about 2km around the appeal site and he considers that conflict would therefore arise with CS Policies D4 and D14.”

This was the only matter on which the Secretary of State disagreed with the Inspector and it was the reason why the Secretary of State dismissed the appeal and refused planning permission.

The premise underlying this ground of appeal as originally formulated in the notice of appeal and the supporting skeleton argument was that the Secretary of State had failed to have regard to the supporting text of Policy D4 because he had failed expressly to mention paragraph 5.39 of the supporting text in the decision letter. That underlying premise was not well founded. In paragraph 7 of the decision letter the Secretary of State expressly stated that he considered that the policies most relevant to the appeal were those set out by the Inspector in paragraphs 6-8 of the report. I have set out paragraph 7 of the report above. It refers to the supporting text of Policy D4 and, although it does not refer to paragraph 5.39 by number, it says that the supporting text refers to the study, and paragraph 5.39 is the paragraph in the supporting text which refers to the study.

The alternative submission in ground 1 as originally formulated in the notice of appeal (that the Secretary of State was required to give reasons in respect of paragraph 5.39 of the supporting text) has no substance. Although the Inspector identified the supporting text to Policy D4 and the study as part of the relevant policy background, they do not appear to have played any further part in the Inspector’s analysis of the first issue, landscape and visual impact. That is not in the least surprising. The study had recognised that although strategic landscape constraints had been identified it would be necessary to conduct a landscape and visual assessment of the sites identified in the study and that “Such detailed studies on a site by site basis might further erode or expand the potential sites suitable for wind turbines”. The necessary landscape and visual assessment had been carried out as part of the environmental statement, so understandably both the Inspector and the Secretary of State focused upon that assessment and upon the photomontages in particular.

As reformulated in the appellant’s replacement skeleton argument, it was submitted that the Secretary of State had either (a) misapplied Policy D4 or (b) failed to provide any reasoned basis for his conclusion that the proposed development offended that policy. In his oral submissions on behalf of the appellant Mr Bird QC submitted that Policy D4 was a permissive policy to support proposals such as the proposed wind farm. The policy was subject to a proviso that such proposals must not have significant adverse impact upon landscape character and visual amenity, but that proviso had to be interpreted in such a manner that it did not conflict with the underlying policy objective. Since it was recognised in national policy statements that major wind farm developments would always have significant landscape and visual impacts for several kilometres around them, the threshold of “significant adverse impact” in Policy D4 should not be set so low that it would be breached by any major wind farm proposal. So interpreted, Policy D4 would be internally inconsistent and self-defeating. In summary, Policy D4 had to be interpreted in a context in which there would be an irreducible minimum of landscape and visual impact as the result of any major wind farm proposal, and only if there were particular circumstances which exacerbated that impact would there be a breach of the proviso in Policy D4.

At the core of Mr Bird’s reformulated submission under ground 1 was the proposition that the Inspector had correctly interpreted Policy D4, and in particular the proviso in that manner, and the Secretary of State had not so interpreted the policy and had erroneously set the bar contained in the proviso (significant adverse impact) too low. I do not accept that submission. I readily accept the proposition that Policy D4 had to be interpreted in context and that the context in this case included the fact that national guidance acknowledges that there will always be significant landscape and visual impacts for several kilometres around a major wind farm proposal. It follows, as the Inspector said in paragraph 21 of the report, that the fact that the visual effects of the proposal would be significant does not necessarily equate to significant adverse or unacceptable harm for the purposes of Policy D4 (my emphasis).

However, Mr Bird fairly accepted that the converse proposition is also true. It does not necessarily follow that the significant landscape and visual impact of a particular wind farm proposal will not be significantly adverse or unacceptable for the purposes of Policy D4 merely because as a generality such proposals are bound to have some significant landscape and visual impact. In each case a planning judgement has to be formed as to the significance of the particular landscape and visual impact and the extent to which that significant impact is an adverse impact. Some “significant” impacts are more significant than others. It does not follow from the fact that the Secretary of State disagreed with his Inspector that the Secretary of State adopted a different interpretation of Policy D4, or that he interpreted the policy out of context, or that he set the bar in the proviso too low.

I have already mentioned the fact that the Secretary of State expressly agreed with the Inspector’s view that Policy D4 and its supporting text (including the reference to the PPS1 study) were the policies most relevant to this appeal. There is no further discussion of Policy D4 in either the Inspector’s report or the decision letter. In both the Inspector’s report and the decision letter there is an express recognition that national guidance acknowledges that there will always be significant landscape and visual impacts for several kilometres around a wind farm proposal of this kind, so the fact that those effects will be significant does not necessarily equate to unacceptable harm.

On the face of the decision letter the Secretary of State applied the same Policy D4 to the proposed development in precisely the same way as the Inspector had done but he reached a different conclusion as to whether the “significant landscape and visual impact” found by the Inspector within the two kilometre zone was “significantly adverse/unacceptable” in breach of the proviso to the policy. Whether a landscape and visual impact which is acknowledged to be significant is “significantly adverse/unacceptable” in terms of a policy such as Policy D4 is pre-eminently a matter of planning judgement for the Secretary of State.

Mr Bird criticised the adequacy of the Secretary of State’s reasons for disagreeing with the Inspector. He submitted that it was not enough for the Secretary of State to simply say “I disagree” with the Inspector’s conclusion on this issue. In the appellant’s skeleton argument it was submitted that the Secretary of State’s reasoning in this respect was “a bald assertion of a difference of opinion” and that it provided “no reasoned basis for the stark difference of conclusion”. If that is a fair description of the Secretary of State’s reasoning, then the Secretary of State’s approach in this respect did not differ materially from that of the Inspector.

The Inspector’s overall conclusion in paragraph 25 of the report that the significant landscape and visual impact which he had found in the two kilometre zone would not be significantly adverse/unacceptable having regard to the test posed by Policy D4 is an equally bald assertion of the Inspector’s own planning judgement. It is none the worse for that because, having analysed the landscape and visual impacts of the proposed development and found them to be significant in one respect, the question whether that was a significantly adverse impact or unacceptable for the purposes of Policy D4 was a question which was susceptible of a simple yes or no answer. Just as further elaboration was not required on the part of the Inspector, so it was not required on the part of the Secretary of State.

Mr Bird pointed to the Inspector’s analysis of the landscape and visual impacts from various viewpoints (from Brent Knoll et cetera) and to the fact that although the Inspector had said in paragraph 20 of the report that the photomontages from viewpoints 1-6 had understated the landscape and visual impact of the scheme, he had qualified that conclusion in paragraph 21 of the report in which he had said that those viewpoints showed a worst case scenario. But the Secretary of State effectively adopted the entirety of the Inspector’s assessment of the landscape and visual impact of the proposed development including the Inspector’s conclusion that there would be a significant landscape and visual impact within the two kilometre zone and differed only on the narrow but vital question: how significant was that significant impact in terms of Policy D4? It is plain that the Secretary of State was well aware of the Inspector’s conclusion in paragraph 21 that there were many areas within the two kilometre zone where, given the presence of buildings and/or mature planting, there would be no views or only very limited views, because the Secretary of State concluded in paragraph 13 of the decision letter that the scheme would have a significant adverse impact from viewpoints 1-6 “especially where the view is not screened, for example by trees”. Given the nature of the disagreement between the Secretary of State and the Inspector – how significant in policy terms was a significant landscape and visual impact – the Secretary of State’s explanation in paragraph 13 of the decision letter as to why he disagreed with the Inspector on that issue is both readily intelligible and perfectly adequate.

Visual impact is unsurprisingly an important issue in very many planning appeals. Although relatively few appeals are now recovered or called in by the Secretary of State for his own determination, the authorities show that disagreements between the Inspector (who will have visited the site) and the Secretary of State (who will not have visited the site) on matters of visual impact are not in the least uncommon. The courts have had to consider in a number of first instance decisions the complaint, variously formulated, that the Secretary of State could not rationally have differed from the Inspector’s conclusions in respect of visual impact without having visited the site and seen it for himself. That submission has been consistently rejected.

In chronological order, the relevant authorities, which all speak with one voice, are as follows: (1) R v Secretary of State for the Environment, ex parte Gosport Borough Council [1992] JPL 476; (2) The Campaign for the Protection of Rural Wales v Secretary of State for Wales (unreported, 7 April 2000); (3) De Mulder & Anor v First Secretary of State & Anor [2005] EWHC 2640 (Admin); (4) R (Novalong Ltd) v Secretary of State for Communities and Local Government [2008] EWHC 2136 (Admin); (5) Searle v Secretary of State for Communities and Local Government [2012] EWHC 2269 (Admin); (6) Wind Prospect Developments Ltd v Secretary of State for Communities and Local Government [2014] EWHC 4041 (Admin).

There is no authority to gainsay the proposition which has been consistently applied in all of those authorities that it is unreal to suggest that the Secretary of State has to personally carry out a site visit before being able to differ from one of his Inspectors on a planning judgment as to the visual impact of a proposed development (see pages 479-480 of Gosport, paragraph 13 of CPRW, paragraph 30 of De Mulder, paragraphs 25-28 of Novalong, paragraphs 43-51 of Searle and paragraph 54 of Wind Prospect). Mr Bird fairly accepted that he was unable to point to any case in which a challenge to a planning decision by the Secretary of State had been allowed on this ground. For my part, I am not aware of any such case.

The test posed in all of those cases (which I would endorse) is whether the Secretary of State had sufficient material before him on which he was reasonably able to make a judgement on the issue of visual impact. In the present case there was ample material on which the Secretary of State was able to make such a judgement. The Secretary of State referred in paragraph 13 of the decision letter to viewpoints 1-6 in the photomontages, to the Inspector’s comments upon those viewpoints and to the passages in the council’s landscape proof of evidence in which those viewpoints were discussed. It will be remembered that although the Inspector has said in paragraph 20 of the report that the photomontage viewpoints 1-6 had understated the landscape and visual effects of the scheme within the two kilometre zone, he had earlier said in paragraph 3 of the report that the photomontages were “adequate in terms of their accuracy and quality and that they form a reasonable basis for judging the visual impact of the proposed turbines”. So the Secretary of State had before him photomontages that formed a reasonable basis for judging the visual impact of the turbines, but he also had the benefit of the Inspector’s view that viewpoints 1-6 understated the landscape and visual impacts of the scheme within the two kilometre zone, and he had the council’s evidence that the visual impacts from those viewpoints had been understated in the environmental statement and were more properly described as either “major” or “moderate/major”.

Perhaps recognising the unreality of the submission that the Secretary of State must personally visit a site if he is to reach a conclusion on visual impact contrary to that of an Inspector, Mr Bird submitted that the site view could be conducted by an appointed official on behalf of the Secretary of State. If it really is essential that the Secretary of State or the junior minister deciding a recovered or called-in appeal upon the Secretary of State’s behalf should see the site with his or her own eyes because looking at a photomontage is (it is common ground) not a substitute for a site visit then it is difficult to see what purpose would be served by having another appointed official in addition to the Inspector visiting the site and reporting to the minister responsible for determining the appeal. If it really was essential for the minister to see the site with his or her own eyes then precisely the same criticism could be made. The minister would still be relying on the advice or evidence of another person who had seen the site themselves.

Is there anything about this case which might have justified a departure from the general rule upon the assumption (and I emphasise that for my part this is simply an assumption for present purposes) that there might be circumstances which would justify a departure in a particular case? As a matter of first impression there is nothing in the least unusual about this particular appeal. The Secretary of State had the benefit if the appellant’s photomontages and he had the Inspector’s and the local planning authority’s comments upon those photomontages.

Mr Bird referred us to the Good Practice Guidance “Visual Representation of Wind Farms” published by the Scottish Natural Heritage in 2006 and to the Landscape Institute’s “Guidelines for Landscape and Visual Impact Assessment”, now in its third edition. Both of those publications say that a photomontage, however technically accurate, is not a substitute for a site visit. While that proposition is not in the least controversial it is by no means a novel proposition, and indeed, it might be said to be a glimpse of the obvious, and the proposition does not simply apply to wind farm developments. No doubt proposals for wind farms do raise particular issues in terms of landscape and visual impact because the sails will be moving, but the proposition that a photomontage is simply a tool to aid the assessment of landscape and visual impact and being two-dimensional cannot be a substitute for visiting a viewpoint in the field is not peculiar to wind farms, so the fact that the photomontages relied upon by the Secretary of State in the present case were photomontages of a proposed wind farm development does not make this case in the least exceptional. The same submission could be advanced in respect of any appeal in which photomontages were used and upon the basis of those photomontages the Secretary of State disagreed with an Inspector’s view as to the visual impact of a proposed development.

Mr Bird submitted that this case had a number of exceptional features which made it necessary for the Secretary of State to conduct a site visit. The Secretary of State had agreed with the Inspector’s assessment of the landscape impact but had disagreed with the Inspector’s conclusion that that impact did not offend the proviso to Policy D4. For the reasons that I have given above, such differences of planning judgement are not in the least exceptional.

It was then said that the photomontages were the key to the Secretary of State’s disagreement with the Inspector. That much is common ground. It was further said that the Inspector had concluded that the photomontages were not accurate so no reliance could properly be placed upon them by the Secretary of State. There is no force in that submission. Far from rejecting the utility of the photomontages, the Inspector had said that as a generality they were a reasonable basis for judging the visual impacts of the scheme. This conclusion was subject to a specific caveat that viewpoints 1-6 had understated the landscape and visual effects, but they had presented a worst case because there were places within the two kilometre zone where there would be no or limited views. For the reasons given above, the Secretary of State was well aware of these limitations upon the photomontages in respect of viewpoints 1-6 and took the Inspector’s comments on them into account. In addition the Secretary of State considered the views that had been expressed by the local planning authority in respect of those viewpoints which had in in effect been accepted by the Inspector.

Against the background of this information there was in my judgment no sensible reason why, armed with this information, the Secretary of State could not form his own view as to whether the proviso to Policy D4 was met without the need to see the site for himself.

For the reasons set out above I would dismiss this appeal.

I agree.

I agree. I add a footnote about ground 2. For the reasons given by my Lord, the prospect, even in some subcategory of exceptional case, of requiring the Secretary of State or one of the other ministers in the department to visit sites up and down the country where the issue involves a judgment about visual impact would create what might be described as a procedural nightmare. Mr Bird’s recognition that sending an official might do is, for the reasons given by my Lord, flawed as an alternative. 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 to make the primary, fact finding, decisions himself.