Community Power Ltd., R (on the application of) v National Assembly for Wales & Anor

HIS HONOUR JUDGE RICH QC: This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of the National Assembly for Wales, whereby they dismissed an appeal against a decision of the Neath Port Talbot County Borough Council dated 4 October 2002. That decision refused permission for the erection of wind turbines at a location within that Borough in an area known as Margam Forest. That decision of the Borough Council had been based on the landscape impact of the proposal, which was for a total of eleven wind turbines. The landscape objections were directed separately to two strings of turbines, one of five and one of six, which were to be ranged on each side of the ridge of Mynydd Margam.

The grounds of refusal refer to the proposed wind turbines on the north-western side (although I think this should have been the north-eastern side) of Margam Mountain as being visually dominant and overpowering to the detriment of the visual amenity and character of Llynfi Valley and the setting of the conservation area of Llangynwyd. In regard to those on the south-western side of the mountain, it was said that they would adversely affect the general landscape of the area, and particularly the historic character and visual amenity of Margam Park, listed as Grade 1 on the Register of Landscape, Parks and Gardens of Special Historic Interest in Wales.

The National Assembly for Wales, by its relevant Committee, accepted the recommendation of the Inspector who had been appointed to conduct an inquiry, and accepted the conclusions which he had reached in his report, which was dated 5 September 2003. In so doing they accepted his conclusions firstly as to the desirability in policy terms of permitting wind turbines; and secondly as to the necessity of reading development plan policies, which had been adopted before a change of national policy in support of such turbines, in the light of the evolving national policy for their encouragement. Nevertheless, the Inspector in his conclusion, accepted by the Assembly, said at paragraph 11.11.5:

In reaching his conclusions in those terms, the Inspector, unlike the local planning authority, did not distinguish the impact between the two sides of the ridge, although he had done so in detail in the assessment of the separate strings of proposed turbines, and indeed in regard to the particular turbines and their impact on ancient monuments. He concluded that the Mynydd Margam landscape of special historic interest was affected by both strings. That was a detriment to which the local planning authority had not made reference.

So far as the northern string was concerned, the Inspector did not rely upon the effect on the Llynfi Valley, to which the local planning authority had referred, but he did rely also on the effect on the conservation area as being a significant adverse impact which should lead to the refusal of planning permission.

So far as the southern string of turbines is concerned, he accepted the reason for refusal based on Margam Park itself, and added to it the impact upon the Mynydd Margam landscape.

The primary ground upon which this decision is challenged is that the Inspector erred in law in that he failed to deal with the principal important controversial issue: namely, whether a "split decision" should be given, by which is meant whether the Inspector should not have considered separately the two strings on each side of the mountain ridge, or some parts of them, with a view to considering whether planning permission could properly be granted for part of the proposed development only. It is right to say that, in the closing speech of the advocate on behalf of the appellant, it had been suggested that some consideration might be given to such a decision. I put it in slightly hesitant terms because the context in which the proposal was made was with regard to the number of turbines that would be necessary in order to support the provision of a viewing platform, which was proposed as an environmental benefit, a piece of planning gain, to be given if permission was granted for the turbines. The Inspector was not, in fact, much interested in that alleged planning gain, doubting its benefit or its likely maintenance. Nevertheless, the advocate on behalf of the appellant did, in the course of his submissions, say: our case is that all eleven turbines should be granted, but we recognise that the Assembly has the power to grant fewer by way of a split decision.

The fewest number of turbines to enable the scheme to proceed is five, made up of multiples of at least three in each string approved. As the case has been presented before me, descrying realism behind the submissions of a more general kind, I think it is fair to say that it is now suggested by Mr Edwards, on behalf of the appellant, that the decision really ought to have been that permission should be granted for five out of the six turbines proposed on the northern string.

I am not satisfied that this was raised as a principal issue because I think that, at the inquiry stage, the matter, although canvassed, was canvassed always in the context that the application was for all eleven turbines, and argument was not directed to a justification of a lesser number on the provisional acceptance, or alternative acceptance, that there might be greater objection to some of the proposed turbines than to others. Nevertheless, it is fair to say that the Inspector, in his report, did not deal specifically with this question, and the appellants would suffer prejudice by reason of his failure to do so if his full analysis of the distinctions in environmental impact as between different groups of turbines, ought to have led him to a different conclusion in respect of, say, five of them; or even to a conclusion which might open the way for a further application for a limited number. But I do not think that that can sensibly be said to be the implication of what the Inspector was deciding in respect of these two strings of turbines.

The conclusion which I have already read identified an unacceptable environmental impact in respect of all the turbines, albeit that some were even worse than others. Paragraph 11 identifies specifically those which had adverse impact upon scheduled monuments (see 11.6); he identified those whose impact on the conservation area was unacceptable (11.8) and those which had an adverse impact upon the Margam Park (11.5). The Inspector's conclusion was that the Mynydd Margam landscape was adversely affected by all eleven.

He therefore went on in his conclusions to say that these are compelling objections to the scheme; they have unacceptable environmental effects which far outweigh the factors in favour of the scheme and render the development contrary to the provisions of the development plan, particularly policies EQ2 and EQ7.

That comprehensive conclusion in respect of all makes it, in my judgment, quite unnecessary that he should have considered separately the acceptability of groups of the proposed turbines in order to arrive separately at the same conclusion in respect of each group.

His conclusion that he should rely upon Policy EQ7 albeit, as he had already suggested, bearing in mind the need to apply it in the light of more recent national policy guidance in respect of wind turbines and similar developments which might assist government policy with regard to climate change, raises another question which was addressed in the grounds of appeal as ground 4. In that ground it was alleged that the Inspector (and thereby the Welsh Assembly) erred in law in that it misconstrued both the status of historic landscape as set out in Part 2.2 of the Register, and its importance in terms of national guidance. This complaint arises because the West Glamorgan Structure Plan adopted on 15 February 1996, which contains the Policy EQ7, provides that:

The designation upon which the Inspector relied was contained in a Register of Landscapes of Historic Interest in Wales, prepared in February 2003, which was not a statutory designation such as is referred to in Policy EQ7. However, the Inspector had, in his consideration of these matters, identified at paragraph 11.7.5 of his report that:

If that was justified, that clearly (and Mr Edwards accepted this in the course of his argument) justified the Inspector treating EQ7 as having application. What however is in fact said in the Register at paragraph 1.6, is that all landscape areas identified on the Register are of "national importance in the Welsh context". At the date when the structure plan was adopted, there was no National Assembly for Wales, and therefore no separate devolved national Welsh context such as emerged from the establishment of that Assembly. Nevertheless, I am satisfied that already long before the adoption of the West Glamorgan Structure Plan, the bodies charged with preservation of heritage within Wales were already established separately within the principality as compared with England. Heritage was already seen before formal devolution as a matter of national concern within Wales. I think that it was therefore entirely within the scope of construction of the Structure Plan Policy, open to the Inspector for him to conclude that national importance in respect of a heritage matter was satisfied by an identification of a feature as being of "national importance in the Welsh context".

It is fair, of course, to say that the Inspector has not, in the course of the reasoning to which have I have referred, leading him to the conclusion that EQ7 should properly be applied, gone through this process of reasoning. The matter was never argued before him; indeed, I do not think that it occurred to anyone upon the appellant's behalf until very shortly before the midday adjournment today, that the distinction now made was of any significance. That, I think, justifies the Inspector's failure to engage in the piece of the reasoning which I have just undertaken. It does not, in my judgment, justify the impugning of his decision that the effect of the Development Plan was such that the adverse impact upon Mynydd Margam was contrary to the Development Plan Policy.

He applied that Policy under the caution that it was to be read in the light of changing National Policy, and I do not think that the Inspector's recommendation in this respect is properly said to contain any error of law.

The appellant has argued, under the second ground relied on in the particulars of claim, that the Inspector fell into error in that he "concluded at paragraph 11.8.11 without evidence, or in the alternative, against the weight of evidence, that Bridgend had not evaluated in any detail the issue of potential effect on the conservation area or its setting". I interpolate there that the allegation of "in the alternative against the weight of evidence" would not justify a challenge on the basis of error of law. What is in fact said is that the Inspector was mistaken in that paragraph of his report to record that:

It being said that he got that wrong, it is suggested that he took into account an irrelevant consideration and therefore fell into error in his evaluation of the impact of the northern string of turbines upon the conservation area and its setting.

Bridgend is the local planning authority for the adjoining area and the Llangynwyd Conservation Area is over the border from the Port Talbot County Borough, who were deciding the application now the subject of these proceedings. What the Inspector says of their report is that it gives no indication that the issue of potential effect was evaluated in any detail. Reference to the report does however indeed support the Inspector's characterisation. Mr Edwards had to accept that there is nowhere in the report any specific consideration of the particular conservation area, or any detailed evaluation of the impact of the development upon it. Certainly a conclusion was reached in general terms referring to the character of the area, but not to its setting, but that is as far as it goes, and again I do not think that this ground of appeal identifies an error of law.

The third ground that is advanced on behalf of the appellant is that the Inspector (thereby the Welsh Assembly) erred in law in that it acted unreasonably in considering that the development would have a significant effect on the character and setting of the conservation area. As Mr Edwards has developed that ground before this court, he has characterised it as being, in effect, a complaint as to the reasons, and the clarity of the reasons, that the Inspector gave in section 11.8 of his report, which is his conclusions as to the effect on the conservation area and setting.

The point that Mr Edwards developed is that there is to be made a distinction between the character of the area itself and an adverse impact upon its setting. This, he suggested, is the more important in circumstances where, as a matter of fact, the conservation area itself includes a significant area of open ground immediately around the group of buildings of historic interest, which provide the conservation area itself. The word "setting", he suggests, does not appear in the statutory provisions in regard to the designation of conservation areas, and is to be found only in paragraph 6.5.15 of the Planning Policy for Wales, which suggests that:

What, Mr Edwards asked rhetorically, did the Inspector identify as the setting? What was the impact which he identified upon the conservation area or its setting, considering them distinctly? I am afraid that I came to the conclusion that this particular ground of appeal was almost as unmeritorious a semantic point as that which was apparently taken by the appellant's planning witness, a Mr Stewart, before the Inspector himself. The Inspector reported upon that point at paragraph 11.8.7 of his report. He recorded:

In that comment upon the evidence of Mr Stewart, it seems to me that the Inspector was clearly identifying what was the impact of these turbines, or would be the impact of these turbines, albeit remote from the conservation area, upon the conservation area itself. He was also identifying that the setting could extend well beyond the open area around the buildings which constituted the historic or architectural interest justifying the conservation area, and explaining, as it seems to me clearly, why what appears to have been suggested by Mr Stewart, that one should ignore an impact upon the conservation area deriving from a distant source, was necessarily not only absurd by its own terms, but inconsistent with the language of the planning policies.

He had already, in my judgment, made these distinctions extremely clear. It would be tedious to repeat in the course of this judgment in extenso all that he said which, in my judgment, the informed reader should well have understood as providing satisfactory reasons. But I will draw attention specifically to what he said at paragraph 11.8.2 after explaining the nature of the village, which was an exposed hill village, around which the conservation area had been designated. He said:

The Inspector (and the judgment was for the decision-maker) identified the setting of the conservation area as, in this particular context, extending over the distance of 2-2.5km away. On that basis, he then went on to explain what was proposed in terms of the northern string of turbines. At paragraph 11.8.4, he said:

That being what would be the effect of the proposal being implemented, he says at 11.8.5:

That seems to me to explain clearly why the character of the conservation area and its setting would be adversely affected by the proposal, and I see no fault with the clear reasoning for saying that that impact, both on the area and its setting, was unacceptable.

The final point which Mr Edwards argued before me -- and I should just interpolate that he did have a ground which was a pure reasons ground, but he accepts that that was a mere adjunct to the other grounds with which I have dealt -- was ground 5, that the Inspector (and thereby the Welsh Assembly) failed to take into account a material consideration, and that he misconstrued the role of, and evidence adduced by, Cadw (an acronym which refers to the ancient monuments quango for Wales to the inquiry). I think that it is right that, in paragraph 11.7.17, the Inspector did not describe the role of that organisation absolutely accurately. What he said was that:

We come now to the error upon which Mr Edwards relies. The Inspector says:

I suppose that falling into silence after one has expressed a judgment might just properly be described as silence, but it is not of course completely accurate to portray the representations of Cadw when consulted by the local planning authority as being silent on matters relating to the impact upon the historic landscape. They had set out their particular interests in the introduction to the response to formal consultation, which they sent to the local planning authority on 19 July 2002. They identified that they were concerned with particular scheduled ancient monuments, and identified also that they were concerned with the effect upon Margam Park, which is included on the Register of Landscapes, Parks and Gardens of Special Historic Interest in Wales. They also identified that the whole development is sited within an area known as Margam Mountain, which is included on the Register of Landscapes of Special Historic Interest in Wales. I have already identified that it is the impact upon that landscape which the Inspector had identified as being of importance, albeit it was not so identified in the reasons of refusal given by the local planning authority.

Cadw, in response to consultation by the local planning authority, did indeed comment upon the historic landscape as opposed to merely the impact upon the park and garden, and they said at paragraph 4.2:

Their silence, as referred to by the Inspector, was a decision not to object, and a statement that they did not wish to object is, I suppose, a more positive observation by way of consultation than pure silence in the sense of ignoring the question altogether. But I do not think for one moment that the Inspector, by this perhaps less than precisely accurate description of the position of Cadw, misled himself.

Cadw's final submissions after its appearance at the inquiry made clear at paragraph 1.4 that:

By contrast, CCW in their final submissions made clear that they merely supported Cadw and the local planning authority in their objections in relation to impacts upon scheduled ancient monuments and the historic park and garden at Margam Park (those were the concerns of Cadw), and general landscape aspects (those were the concerns of the local planning authority), and said:

The effect, therefore, of what the Inspector was saying and directing himself and the National Assembly, was, in my judgment, entirely right. As between these two bodies charged with different areas of responsibility for landscape of special historic interest, Cadw was directed to the park and to the monuments and CCW to the historic landscape aspect. On that aspect, the Inspector said that CCW's evidence represents a sound and convincing case in terms of this issue. The decision-maker was entitled so to conclude on the evidence which the Inspector reported, and on that later matter they therefore concluded, accepting the Inspector's report at 11.7.19, that:

That is a conclusion which the decision-maker was entitled to arrive at on the evidence, and I do not think arrived at by relying upon any immaterial consideration or any mistake as to what was the true attitude taken by either of the relevant statutory bodies.

In those circumstances, I have concluded that there is nothing in any of the grounds of appeal which have been brought before the court, and this application must be dismissed.

MR JARMAN QC: I am grateful, my Lord. Schedules of costs have been exchanged, and I am glad to be able to tell my Lord that the appellant has agreed the first defendant's costs, for which I apply, in the sum of £11,340.

MR EDWARDS: That is agreed, my Lord.

HIS HONOUR JUDGE RICH QC: So the appeal is dismissed. The respondent to have costs, assessed at £11,340. Is there anything else with which I should deal?

MR EDWARDS: No, my Lord.

HIS HONOUR JUDGE RICH QC: I am most grateful to you for your assistance.