Hulme, R (on the application of) v Secretary of State for Communities & Local Government

THE DEPUTY JUDGE: This is an application under section 288 of the Town and Country Planning Act 1990 for an order that the first defendant's decision to grant planning permission to the third defendant (RES) on a 200 hectare site for nine 3-bladed horizontal axis wind turbines, electricity transformers, access tracks, crane hardstandings, control buildings, sub-station, meteorological masts, temporary construction compound and temporary construction compound and meteorological masts, in a decision letter dated 11 December 2009, be quashed.

The planning application the subject of the decision letter was made as long ago as 10 November 2005. It was refused on 31 January 2006 by West Devon Borough Council and appealed. The appeal was successful but subject to a legal challenge. The challenge was dismissed by the High Court. Permission to appeal to the Court of Appeal was granted by Laws LJ but before the substantive hearing took place the matter was resolved by a consent order, whereby the decision was quashed and the appeal remitted for re-determination.

The claimant is the freehold landowner of Coxmoor, Spreyton, Crediton, Devon. His dwelling house is 1133 metres from the nearest proposed turbine. His land (he owns 10 acres between his dwelling and the proposed turbines) is 900 metres away at the closest boundary from the proposed wind farm site. The claimant is a key member of the Den Brook Judicial Review Group (DBJRG), a group of local residents who formed a pressure group to oppose the proposed development. The resumed public inquiry into the development proposal sat for some 13 days over a period from 23 July until 26 October 2009. DBJRG was a Rule 6 Party, called witnesses, and was represented by counsel at the public inquiry.

The inspector, in a detailed decision letter of some 55 pages, identified the main issues at paragraph 7 as:

Under the heading "character and appearance" the inspector identified Policy CO1 of the Devon Structure Plan and summarised it in paragraph 12 of the decision letter as follows:

In paragraph 15 he identified the Local Plan Policy as follows:

In paragraph 20 the inspector recorded that he was able to consider all the views expressed on behalf of both the principal parties and those who made representations. He said:

In paragraph 25 the inspector noted the evidence in the environmental statement which was supplemented by further photographs and wire framed images. The inspector then proceeded to go through the key vantage points. In relation to Itton Cross he said at paragraph 31:

He dealt with Bow at paragraph 33 where he said:

He set out his conclusions on character and appearance in paragraphs 57 and 58. Paragraph 57 reads:

The inspector moved on to deal with the issue of local ecology. A key concern was that relating to bats. Paragraph 59 reads:

Paragraph 66 is also relevant:

He concluded on ecology in paragraph 68:

There then followed a long section in the decision letter on possible noise disturbance. Paragraph 70 refers to the recognition within PPS22 that renewable technologies may generate increases in noise levels, and refers to ETSU-R-97 as relevant guidance at the end. The content of ETSU-R-97 was summarised at the end of paragraph 71 as follows:

Paragraph 72 recorded that the parties recognised that the commercial wind turbines which were proposed in the instant case were materially larger than those considered by the authors of the report. The Inspector noted also that there was agreement at the inquiry that ETSU-R-97 failed to pay adequate attention to the impact of wind sheer resulting through atmospheric changes. The paragraph then continues:

The inspector proceeded to set out the various noise limits in the guidance. He considered the purpose of the different limits and concluded in paragraph 77 that the different criteria for day time and night time limits implied different thresholds for the protection of amenity and for the need to avoid sleep disturbance, with the need to avoid sleep disturbance a significantly more demanding and compelling criteria.

In paragraph 80 the inspector recorded his sympathy with the view that a review of ETSU-R-97 was overdue, but recognised and acknowledged its significance in the context of the case before him. In paragraph 93 he set out an agreement between the parties as to the inadequacy of ETSU-R-97 in relation to wind shear. He proceeded then to set out the difficulties with wind shear calculations, observing that the subject was complex and that the circumstances emphasised the necessity of the imposition of robust and adequate noise conditions as the attempt to forecast turbine noise was fraught with difficulty and uncertainty (paragraph 96). The inspector found that the appellant's acoustic advisers had departed from the guidance included in ETSU-R-97 in the manner in which they sought to predict the noise generated and propagated by the turbines (paragraph 97). He concluded, on the appellant's methodology in paragraph 98, as follows:

The inspector went on to deal with Amplitude Modulation (AM). That is the phenomenon known as blade swish. The adverse effect of modulation of aerodynamic noise at blade passing frequency was not properly understood when ETSU-R-97 was published. Further research was commissioned by the government from the University of Salford and was referred to by the inspector, but the research was inconclusive in providing a proper understanding. The inspector recorded at paragraph 117 of the decision letter:

In paragraph 118 the inspector summarised the purpose of the guidance and expressed the view that the appellant had carried out a detailed and comprehensive assessment of the noise environment in the vicinity of the appeal site and considered that the uncertainties identified by DBJRG could never be entirely extinguished. In paragraph 121 the inspector said:

The inspector then concluded on the first issue in paragraph 137 as follows:

In dealing with noise conditions the inspector recorded at paragraph 181:

He continued in paragraph 183:

The inspector proceeded to announce his intention to re-draft the proposed condition to clarify its content and purpose, which he then did. The inspector highlighted his overall conclusions from paragraph 185 and set out the balancing exercise with which he had to engage. The final two paragraphs of the decision letter are material. They read as follows:

The decision letter was originally challenged on 10 grounds. One, ground 5, relating to day time noise criteria, was withdrawn at the hearing. The other nine were maintained. The first four grounds relate to challenges on the topic of noise, the remaining five relate to a variety of different topics that I will set out and deal with separately below. In this judgment I have retained the numbering of the grounds as originally put.

Before dealing with the points of challenge, I set out the legal framework.

There are certain well established principles to be born in mind when considering a challenge under section 288, as follows:

1) An inspector is not writing an examination paper. The decision letter must be read in good faith and references to policies must be taken in the context of the general thrust of the inspector's reasoning (see South Somerset District Council v Secretary of State for the Environment [1993] 1 PLR 80 at 83E to G);

2) As Sir Thomas Bingham MR observed in Clarke Homes v Secretary of State for the Environment [1993] 66 PMCR 263:

3) On a reasons challenge the law is set out in South Bucks District Council v Porter No 2 [2004] 1 WLR 1953 at paragraph 36:

4) The weight to be attached to material considerations and matters of planning judgment are within the exclusive province of the Secretary of State or local planning authority (see Tesco Stores v the Environment Secretary [1995] 1 WLR 759 at page 780);

5) On challenges brought under section 288 on the basis of lack of rationality, the threshold is high and the position is set out in R (Newsmith Stainless Steel Limited) v SSETR [2001] EWHC Admin 74, at paragraphs 6 to 8 inclusive.

I turn now to deal with the ground of challenge.

The complaint is that, having recognised a condition was necessary to control AM, the inspector in fact imposed defective conditions, namely conditions 20 and 21, because they were unenforceable, imprecise, and did not achieve the inspector's objectives. Mr Taylor, for the claimant, stressed paragraph 183 of the decision letter, when the inspector found that the imposition of conditions for the preservation of sleep, and because of the uncertainties of forecasting noise, was both necessary and reasonable. It was clear from the paragraph that the inspector intended the condition or conditions to be enforceable. DBJRG had submitted a draft condition on AM to the public inquiry which the inspector amended.

The final conditions, 20 and 21, attached to the planning permission read:

The claimant contends that condition 21 creates a requirement for a scheme to be submitted by the wind farm operator which will provide for the measurement of greater than expected AM emissions by the wind turbines. Once that evaluation process has been approved in writing by the local planning authority, and compliance demonstrated with condition 20, the submission is that the condition falls away. Beyond that, Mr Taylor submits that condition 21 is of no further use. It is not permissible, the claimant contends, to read into conditions 20 and 21 words that ensure that an excess of AM is prohibited. Mr Taylor relied on Sevenoaks District Council v the First Secretary of State [2004] EWHC 771 where Sullivan J said:

In reaching that view, Sullivan J relied upon the judgment of Widgery LJ in Trustees of Walton on Thames Charities v Walton and Weighbridge District Council [1970] 21 PMCR 411 at 497, which says:

Sullivan J concluded at paragraph 45:

The problem that the wording of conditions 21 and 20 causes, according to the claimant, is that condition 20 is not enforceable as a condition as there is no sanction contained within it to meet the objective intended by the inspector and condition 21 falls away. Mr Taylor accepted that there would be a degree of benevolence attached to the interpretation of the conditions and that they would be interpreted in the context of the decision letter as a whole. Neither of those factors, Mr Taylor submitted, overcame the fundamental problem that the claimant identified. Further, as these were conditions that went to the root of the planning permission, they could not be severed and the planning permission must fall.

The first defendant submitted that the conditions had to be read in the context of the decision letter as a whole and in the light of the intentions of the inspector. If the conditions were capable of having a workable meaning they should be upheld. Condition 21 in particular, it was said, was critical as that allowed for a scheme which had to be submitted to and approved by the local planning authority to provide on-going assessment so that there was no basis for quashing the planning permission. In particular, reliance was placed on the case of Roger Michael Greene v SSCLG and others [2010] EWCA Civ 64, where Pill LJ did not conceal his discomfort in having to construe the conditions before him creatively, particularly in the absence of any detailed reasoning by the decision maker (see paragraph 36). He added at paragraph 40:

The first defendant referred also to paragraph 179 of the decision letter that reads:

The first defendant then submitted that it would be open to the second defendant to taken enforcement action in respect of any breach of condition and that it was unnecessary for the inspector to spell out any steps that should be taken in the event of a breach of condition notice relating to noise.

The third defendant supports the arguments of the first defendant. Mr Nardell QC submitted that it was clear what the developer had to do, which was that he could not operate until they had a scheme which was approved by the local authority and which was binding upon them. If there was a breach then it would be possible for the local authority to draft an enforcement notice if there was an excedence of the noise rating limits as set down in condition 16, plus the tonal correction required, or if there was a breach of the scheme approved under condition 21. He accepted that conditions 20 and 21 were fundamental to the grant of planning permission in the mind of the inspector.

Conditions 20 and 21 have to be read in the context of the decision letter of which they are a part. From that it is evident that the inspector regarded a condition or conditions to regulate excessive AM as fundamental to the grant of planning permission. Without such a condition or conditions he retained real concerns about the preservation of sleep on the part of the local residents when the turbines were operational, and he retained reservations about the uncertainties inherent in the forecast of AM. He rejected the appellant's argument that it was not necessary to impose such a condition as being overstated or misleading. The inspector found that the condition to deal with AM would be of a precautionary nature and was necessary and reasonable. It is clear also, in my judgment, that the inspector intended through his re-drafting to clarify the content and purpose of both conditions. He clearly envisaged that his re-draft would assist the local planning authority with enforcement, should that become necessary.

Condition 21 is the first condition in time to be discharged. Until the wind farm operator has a scheme submitted under condition 21 and approved in writing by the local planning authority, he is unable to operate his wind turbines so that they generate electricity. What is an acceptable content of such a scheme is for the judgment of the local planning authority, guided by the wording of conditions 21 and 20 in the context of the preceding decision letter. Condition 21 sets out in express terms that the objective of the scheme is to evaluate compliance with condition 20 in a range of wind speeds and directions. That much is uncontentious. There remain two issues however. First, is the submitted scheme to be confined solely with the objective of compliance with acceptable levels of AM; and second, does condition 21 "fall away" as described by Mr Taylor upon the approval in writing of such a scheme? In my judgment, the objective of the scheme is to provide a method of assessment and/or evaluation of AM so as to ensure that AM is contained within acceptable levels. However, when read in the context of the preceding decision letter it is also clear that the inspector intended the scheme to provide a basis for enforcement if required so that the levels of AM measured under condition 20 did not attain the characteristics set out in that condition at A to C inclusive. It follows that, if such characteristics were identified as a result of the measurement carried out, there is nothing in condition 21 that would prevent a scheme from identifying what should be done in that eventuality. Indeed, in the context of the decision letter any scheme should do so. The fact that the condition is worded that "it shall terminate when compliance with condition 20 is demonstrated" envisages that there may be steps within the scheme to provide for that compliance. Whether that compliance is tying the noise emission levels back to condition 16 or by some other means is a matter for the local planning authority to determine in approving any scheme. With such a scheme approved the local planning authority would then have a clear and precise basis for enforcement against a wind farm operator should that be required.

Second, although condition 21 refers to the objective of the scheme and says that "it shall terminate" when compliance with condition 20 has been demonstrated, the words are capable of applying to either the condition, or the scheme itself, or part of the scheme. In context it is clear that the scheme is not envisaged to provide for a single complaint but to endure for the life of the planning permission. The assessment methodology may change over time so that a complaint, for example made 5 years after the operation of the wind farm has commenced, may need to be evaluated in relation to the then current but possibly not now anticipated scientific knowledge. Given what the inspector recorded about uncertainties at present and possible future research, it cannot be the case that the condition falls away. The approved scheme is, in those circumstances, envisaged not just to deal with an initial complaint but also with others that may occur in the future during the life of the permitted development. Any approved scheme would have to provide for further submission of appropriate evaluation measures in relation to future complaints.

I do agree with Mr Taylor that the wording of conditions 20 and 21 is not an exemplar of clear English, or indeed of model conditions. That, however, is not enough to succeed on ground 1. Read in context there is sufficient in the words used within both conditions to enable them to pass the test set out in Circular 11/95 and to come within the words of Lord Denning in Fawcett Properties v Buckingham County Council [1961] AC 636 at 678 when he emphasised that a planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning. In my judgment, the conditions imposed on the planning permission here can be given a sensible and ascertainable meaning in view of the objectives of the scheme to be submitted and approved by the planning authority.

Ground 1 therefore fails.

PPS22 was issued in 2004. It sets out government guidance on renewable energy. Paragraph 22 provides guidance on noise. It includes the following sentence:

That the government stance has remained one of reliance on ETSU to assess and rate noise for wind farms was evidenced in two documents placed before the inquiry. Firstly, a letter dated 1 October 2009 from Lord Hunt at the Department of Energy and Climate Change; and secondly, the government response to a petition seeking a buffer of 2km around wind turbines. It was the claimant's case at the public inquiry that the developer had assessed and rated the noise from the proposed wind turbines in a non-ETSU compliant way, in that it had correlated wind speed measured at hub height on the wind farm site to background noise levels at the relevant receptors. The inspector found that the developer had departed from ETSU-R-97 guidance by omitting the correlation with the 10 metre reference height (paragraph 98 decision letter).

The claimant recognises that it is open to the decision maker to depart from his own policy and PPS22 but says that, in those circumstances, the inspector has to provide reasons to explain why he is doing so and the inspector did not discharge that duty. Further, the claimant says that the DBJRG provided noise evidence through their expert Mr Stigwood that was PPS22 compliant, which should have been preferred as it was done in accordance with ETSU guidance. The claimant submits that the inspector failed to grapple with the fact that there was methodology available which did comply with policy and failed also to grapple with arguments that the developer's approach to wind shear was not adequate or robust. In the absence of reasons from the inspector it is contended that the claimant is unable to understand why the inspector departed from national policy. Because the decision letter is silent on the point, it is submitted that the inspector omitted a material consideration.

The defendants submit that, on a fair reading of the decision letter, there is no basis for a reasons challenge, nor is there any omission of a material consideration. All parties at the inquiry were critical of ETSU in many respects. The inspector recorded (paragraph 72) that commercial wind turbines were materially larger than those considered in the ETSU report and that there was agreement that ETSU failed to pay adequate attention to the impact of wind shear resulting from atmospheric changes. In relation to wind shear, the inspector recorded that the parties agreed that ETSU did not adequately confront the issue (paragraph 93). He went on to set out the revised methodology used by the appellants' noise consultants to predict noise generated and propagated by turbines, and expressed himself satisfied with the use of "a more robust process" to relate the background noise measurement to wind speed, and hence the noise generated by the turbines (paragraph 98).

In the circumstances of the case before him, the inspector sanctioned a departure from ETSU methodology on the basis that the approach of the appellant's acoustician in using the turbine hub height was more robust and reliable than the process set out in ETSU. His reasons for departure as set out in paragraph 98 are clear. He elaborated further by considering the objective behind the advice to use a reference height of 10 metres, and found that that objective was not undermined by the appellant's methodology. The inspector did, therefore, provide clear and adequate reasons for departing from the letter of the advice set out in ETSU and for preferring the evidence led by the appellant.

It follows from what he said that the evidence led by DBJRG was rejected by the inspector because it was less robust and less reliable than that led by the appellants. In my judgment, the inspector did precisely what the claimant wanted him to do and provided clear and adequate reasons and considered all relevant material considerations.

I dismiss the challenge on grounds 2 and 3.

It was the claimant's case at the public inquiry that DBJRG submitted that there were considerable uncertainties associated with the noise impact assessment that had been carried out by the developer and that a precautionary approach should be adopted to the assessment of noise so that the noise impact assessment had to be conducted on a basis of assumptions that would most protect the environment, ie on a basis that assumed at least a 7db addition to the forecast predicted by the developer. In failing to adopt such an approach, the claimant submits that the inspector made various errors of law, in that he failed to provide any adequate reasons why a precautionary approach should not be adopted, and did not provide adequate reasons for his conclusion that it was likely that the impact and development would fall within the relevant noise criteria given the inspector's earlier conclusions regarding uncertainty and the use of the noise prediction model outside its parameters. It was also submitted that the inspector failed to grapple with the extent of uncertainty that existed on noise forecasts and that he failed to compare that uncertainty with the margin between the noise forecasts and noise criteria levels. Complaint was made also that the inspector did not deal with the points made by DBJRG dealing with (i) the spread of background noise measurement data and the use of a line of best fit; (ii) ground factor assumptions; and (iii) assumptions about sound pressure levels from the proposed turbines. As a result, it was submitted that the inspector was irrational and in clear breach of his duty to give adequate reasons.

In dealing with the litany of complaints under this ground, I bear in mind in particular that the inspector is not writing an examination paper and does not need to deal with all the points raised but only the main controversial issues. The issue of noise was clearly a main controversial issue at the inquiry. Even so, the inspector was not obliged to deal with each of the criticisms made by DBJRG of the appellant's evidence on an individual basis. Provided that he set out his reasons for preferring the evidence of the appellant on the issue of noise, that was sufficient. In my judgment, that is what the inspector did. On examination of the decision letter on the issue of noise, the inspector began his consideration by referring to the development plan policies. He set out Policies CO12 and 16 of the Structure Plan and Policies PS10 and BE18 in the Local Plan. The policy framework provided support to renewable energy development provided that there was no significant adverse effect on the conditions of those living and working nearby. The fundamental question for the inspector was then whether the proposed development would have that significant adverse effect. The inspector concluded that he was generally confidant about the adequacy of the background noise survey (paragraph 93) but agreed with DBJRG that there are some notable uncertainties in the assessment process (paragraph 118). Notwithstanding the inherent uncertainties, the inspector concluded that the living conditions of residents would not be unreasonably affected provided necessary and appropriately worded conditions were used (paragraph 121). In other words, through the imposition of conditions to protect, in particular, the living conditions of nearby residents, the inspector was in fact taking a precautionary approach. He underlined that that was his stance in paragraph 183 of the decision letter when setting out the reason for imposing a condition dealing with AM and in his concluding paragraph (187) when he set out the balance to be struck and matters he took into account as part of his planning judgment. As set out earlier, the inspector explained in his decision letter his preference for the noise evidence adduced by the appellant, due to it being robust and more reliable in the context of large commercial wind turbines. He held that the approach advocated by ETSU-R-97 could be refined when that refinement improved the quality of the noise assessment exercise and the consequent results.

It follows that I find no deficiency of reasoning in the decision letter on the issue of uncertainty or the precautionary approach. Nor do I find the approach adopted by the inspector to be irrational.

Ground 4 fails.

The claimant submits that the inspector was required to consider alternatives, by which he means both alternative sites and alternative modes of renewable energy. He relies upon the decision in Trusthouse Forte Hotels Limited v Secretary of State for Environment and Another [1987] PNCR 293 and the Operation of Development Plan Policy. The DBJRG had argued at the public inquiry that, if the development caused harm, the weight that could be given to its alleged benefits on the basis of a claimed need for the development fell to be assessed by reference to whether that need could be met on alternative sites which gave rise to less harm or less policy conflict. They relied upon the judgment of Simon Brown J, as he then was, in Trusthouse Forte at page 229 when he said:

The claimant contends that the inspector should have asked himself whether alternatives were available, and he should have considered them. It was particularly important to consider that issue in the context of the weight to be given to the benefits said to be supportive of the scheme. Further, where there was conflict with development plan policy, as here, and where conflict with landscape protection policies was found, as in paragraph 57 of the decision letter, it was incumbent on the decision maker to expressly consider alternatives, which the inspector had not done. Although the inspector had considered Local Plan Policy NE10, he had not expressly considered the first part of the proviso to that policy, namely that the development could not be reasonably located within an existing settlement, and thus the inspector had failed to have regard to a material aspect of the development plan as he was required to do or, if he had considered it, he had failed to set out his reasons for finding no conflict with that part of the policy.

The first defendant submitted that, in fact, there was no need for the inspector to embark upon the exercise. The claimant's premise was that there was significant adverse effect, whereas the inspector had found there to be a limited adverse effect. The first defendant relied upon Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2009] EWHC 1729 and drew my attention to paragraph 37 where Carnwath LJ considered PPS22 and said:

The first defendant did not accept that Local Plan Policy required alternative sites to be considered or alternative modes of renewable energy. In fact though, the first defendant pointed out that, in paragraph 151 of the decision letter, the inspector did consider alternative sites, 47 of which were examined in the environmental statement and subjected to a series of sifts to reduce their number to 6; of which the appeal site was the largest. The third defendant adopted, in essence, the arguments of the first defendant.

In the context of a finding that the harm identified by the inspector was "fairly limited" (paragraph 187), there was no legal obligation on the inspector, in my judgment, to consider alternative sites or alternative modes. Both the judgments in Trusthouse Forte and Derbyshire Dales make it clear that that legal obligation arises when there are clear planning objections. For the inspector to treat the issue as one of planning judgment on the facts of the case was here entirely appropriate. The inspector did in fact consider alternative sites, in paragraph 151, in a manner which was proportionate to the issues raised before him and the conclusions that he reached on them, in particular in relation to landscape harm and conflict with Development Plan Policy.

As to whether Local Plan Policy NE10 required the consideration of alternative forms of renewable energy, I find it does not. On a fair reading of Policy NE10, the words used within it are directed to the development which is the subject of the planning application and are not directed towards a consideration as to how the benefits that it delivers may be delivered by an alternative form of renewable energy. Even if that is wrong, the correct approach to an interpretation of planning policy is whether the words used within the policy are capable of bearing that meaning: R v Derbyshire County Council ex part Woods [1997] JPL 958 at page 967. The words of Policy NE10 are clearly capable of bearing the meaning that the inspector attached to them. The inspector therefore made no error of law in his approach to alternatives and, in my judgment, understood and applied Policy NE10 correctly. He set out reasons in so doing that were entirely adequate.

Policy CO1 of the Devon Structure Plan provides:

The claimant argues that there is a distinction between a policy that says "sustain and enhance" and a policy which says "sustain or enhance". To accord with Policy CO1 the requirement is to meet both policy objectives. The claimant submits that the inspector erred in law because he failed to have regard to a material aspect of the development plan, in that the inspector applied a test of whether harm would be caused and did not ask himself whether the development would enhance the landscape character area. Alternatively, his reasoning in relation to Policy CO1 was defective.

As the first defendant pointed out, the question of enhancement did not fall for consideration by the inspector, who found that there was some harm from the development in terms of its visual effect on the landscape and a significant change to the landscape character of a surrounding area. As a consequence, the inspector found there to be conflict with Structure Plan Policy CO1.

In those circumstances, the question of enhancement did not arise. There is no error on the part of the inspector as to how he approached Structure Plan Policy CO1 or in the reasoning as to how he dealt with it.

The claimant complains that the inspector made no express finding in relation to his appraisal of the visual effects of the development on the settlements of Itton Cross or Bow. The consequence is, therefore, that it is impossible to ascertain whether there is an adverse effect at either location. Alternatively, it is said that the reasoning is defective because of the absence of any conclusion.

The first defendant pointed out that in DBJRG's closing submissions it was said that whether or not the proposed development would have significant visual impact was for the inspector. The inspector made an overall finding and that is all that was required. The decision letter, at paragraphs 31 and 33, makes it clear that the inspector had in mind the locations of Itton Cross and Bow. From paragraph 187, the inspector makes it clear that the harm that he identified was fairly limited. As none was identified at Itton Cross or Bow, it would be a fair reading of the decision letter as a whole to conclude that the inspector did not find the visual impact at either location unacceptable. Had he found otherwise, he would have identified harm as he did for certain other vantage points. The inspector made an overall finding and considered the most important receptors, including views to and from Dartmoor. That is all that was required in the circumstances of the case. He made those findings based on his own site visits and the evidence before him. Those were matters of planning judgment. There is no error of law in his approach.

The claimant challenges the decision letter on two bases in relation to bats. First, it is said that the inspector erred in his approach to the evidence; and secondly, it is said that he erred in omitting to consider the Habitats Regulations. I deal with each of those points separately.

Error in approach:

At the inquiry DBJRG had submitted that the proposed development would cause harm to bats and would be contrary to PPS9 and Policy CO10 of the Devon Structure Plan and Policies NE4 and NE5 of the Local Plan. In particular, Policy CO10 provided that development likely to have an adverse effect on a specially protected species should only be permitted where appropriate measures were taken to secure its protection. DBJRG relied upon the evidence of Dr Holloway, the expert ecologist called to give evidence on the part of the developer. His evidence as to the result of the impact of the development on bats was:

DBJRG argued further that the impact had to be judged without the benefit of mitigation measures, as they would not be effective. They argued that there was no evidence upon which the inspector could conclude that there was no significant effect on bats. Thus, the claimant submitted that the inspector failed to provide reasons for his conclusion and did not deal with the issue of mitigation and its adequacy.

The inspector dealt with the bat issues in his decision letter in paragraphs 59 to 68 inclusive. In that section he considered the possible effect on bats and the bat populations in the light of advice in PPS9. The application of that meant that, in dealing with protected species, planning permission should be refused where harm to the species or their habitat would result, unless the need for and benefits of the development clearly outweighed the harm. The inspector concluded in paragraph 66:

The inspector was alert to mitigation measures as evidenced by his reference to them in paragraph 63. He considered the development before him, including mitigation measures. I conclude on this aspect that the inspector approached the evidence correctly, taking into account national and local policy, and came to conclusions that were supported by the evidence. A fair reading of paragraphs 59 to 68 of the decision letter reveals no flaw in his reasoning which dealt with the main points raised.

Habitats Regulations

The other point raised on bats was not, Mr Taylor accepted, raised at the inquiry. Indeed, it was not raised until the submission of the claimant's skeleton argument. Mr Taylor sought permission to add paragraphs 122 to 137 of his skeleton argument to the grounds of challenge, so as to be able to submit that the inspector had not considered the Conservation (Natural Habitats) Regulations 1994 as amended. The regulations transpose into English law the EC Habitats Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and wild fauna and flora .

The purpose of the directive can be gleaned from the preamble which contains the following recital amongst others:

Article 12 provides, so far as relevant here:

Article 16 allows for derogation from strict compliance so that:

As set out, the Habitats Regulations transpose the directive into domestic law. Regulation 3(2) provides:

Regulation 3(4) provides:

Article 12 of the directive was transposed by Regulation 39. That reads, where relevant:

Regulation 44 allows for derogation, and provides:

The guidance document produced by the European Commission on the Habitats Directive explains at paragraph 33:

1) Are there EC protected species on or near the site?

2) Is article 12 engaged?

3) If article 12 is engaged, will the development involve the deliberate disturbance/killing of such species?

4) If Article 12 is engaged, is the derogation pursuant to Article 16 justified?

Before considering those arguments, if it is appropriate to do so, I consider the issue of whether to allow Mr Taylor to amend his grounds. The first and third defendant objected to the amendment proposed due to its lateness. However, neither was unable to deal with the amendment, nor claimed any prejudice would be suffered if the amendments were allowed. As the addition related to a question of law which did not require any additional evidence to be filed, I was prepared, albeit with an element of disquiet, to allow Mr Taylor to amend his grounds. As Sullivan J said in R (Newsmith Stainless Steels Limited) v SSETR [2001] EWHC Admin 74 at paragraph 16:

In dealing with the merits of the amended ground, both the first defendant and the third defendant submitted that the inspector had engaged with the directive and regulations as much as he needed to, as evidenced in paragraph 66 of the decision letter. It was not necessary to go further and volunteer a discussion of the regulations. The evidence was that the inspector had carefully considered the issue. The first defendant submitted that, if the inspector had not then, because of the lateness of the amendment and because of the inspector's findings that there was no risk to any bat species, that the decision should not be quashed.

Dr Holloway's evidence, on which DBJRG relied, summarised the data collected and said at paragraph 5.4.21:

The difficulty with the submissions of both defendants is that they do not direct themselves to the wording of Article 12(1)(a) of the directive or Regulation 39 of the regulations. In referring to all forms of deliberate killing, capture or killing of specimens of these species in the wild, the directive clearly contemplates harm to individuals as opposed to the effect on the species which is what is required under Article 12(1)(b), dealing with deliberate disturbance. The inspector directed himself to the impact on individuals and populations and concluded that there was:

It follows that the inspector did engage with the directive and regulations, despite not being asked to do so by any party to the inquiry. The fact that he did not identify either by name is not surprising in the circumstances, but he clearly had in mind the importance of the presence of a European protected species on the development site in reaching his planning decision.

Further, from his conclusion there was the prospect of contravention of Regulation 39(1)(a) of the Habitats Regulations. What then was his relevant duty? In the case of Woolley (Supra), HHJ Waxman QC, sitting as a Judge of the High Court, considered that question. At paragraph 29 on page 63, he said:

The inspector did not expressly address the steps allowing for derogation under Regulation 44(3). He did not have to deal with them in the same degree of detail as if he was the appropriate authority considering whether to grant a licence under the regulation, but the issue is whether he dealt with the substance of the requirement sufficiently to comply with his obligations under the regulations. In my judgment, he did. At paragraph 64 of the decision letter the inspector expressly referred to the advice in PPS9 which, at footnote 7, notes the protection of European animal species under the Habitats Regulations 1994 and said that his consideration took it into account. He had already considered the issue of alternative sites at paragraph 151. There was no evidence of alternative modes of renewable energy at the inquiry.

So far as the proposed development not being detrimental to the maintenance of the population of the species is concerned, at a favourable conservation status in their natural range, the evidence was entirely one way. All parties relied upon the evidence of Dr Holloway who concluded that there would be 1) no significant impact on the conservation status of local populations of this species; and 2) in relation to Noctule bats, that the number of registrations recorded was very low which reduced the overall risk considerably. As a result, the inspector concluded that there would not be any threat to bat roosts, and there was no suggestion that the turbines would constitute a threat to local bat populations.

The inspector had then substantially complied with the requirements of the regulations, albeit he did not attribute his conclusions to the letter of the regulations for the reasons I have set out earlier. The circumstances here are very different from an EIA case where the provision of an environmental statement is the cornerstone of that regime. There, the ES, including mitigation measures, is the basis of public consultation prior to a decision being made. Here there is a different statutory regime. The decision maker is not under a comparable consultation requirement based upon a single accessible compilation of the relevant information provided by the applicant at the start of the application process. He has to satisfy himself on the considerations set down in the regulations. Reading the decision letter as a whole, the inspector here did so.

In those circumstances, I do not have to go on to consider the issue of discretion but, for the sake of completeness, I deal with that matter and make it clear that, if I had had to consider it, I would have exercised it in favour of the defendants and upheld the planning permission.

In Berkely v Secretary of State for the Environment [2001] 2 AC 63, Lord Bingham emphasised that the discretion of the court to quash a decision, even in the domestic context, was very narrow. In Bown v Secretary of State for Transport [2003] EWCA Civ 1170 Carnwath LJ emphasised that the speeches in Berkeley needed to be read in context. In Edwards v Environment Agency [2008] EKHL 22 Lord Hoffman agreed with that observation and considered that both the nature of the flaw in the decision and the ground for the exercise of discretion had to be considered. In the circumstances of Edwards when he carried out that exercise, Lord Hoffman agreed with the Court of Appeal and the judge below that it would be pointless to quash the pollution permit granted under the Pollution Prevention and Control Regulations 2000. Applying those principles here, the flaw in the decision would be one of form but not of substance. It would thus be another occasion where it would be pointless to quash the planning permission granted.

PPS22 is the government's planning policy statement on renewable energy. The key principles are set out in paragraph 1. Amongst those is:

At the inquiry the claimant argued that the the developer had not established that the impacts of the development had been minimised, and there was conflict with PPS22 as a consequence. In this challenge, Mr Taylor argued that the inspector had failed to have regard to a material consideration, namely the key principle in PPS22 set out above, or alternatively that the inspector had failed to provide adequate reasons that the impacts had been minimised and could not be reduced further. Both defendants argued that this ground was misconceived, as the inspector had found as part of his planning judgment that the development would cause some limited harm but that that harm was outweighed by the benefits which the development would bring by its contribution to the provision of renewable energy.

I prefer the submissions of the defendants. The mere absence of an express reference to paragraph 1(viii) of PPS22 does not mean that the inspector failed to take it into account. The analysis carried out by the inspector was one of classic planning judgment, balancing the pros and cons of a proposed development. As Keene LJ said in First Secretary of State and Westend Green Properties v Sainsbury Supermarkets Limited [2007] EWCA Civ 1083 at paragraph 38:

What the inspector carried out here was an analysis of the development proposed against the Development Plan Policy and concluded that the limited harm which he identified, and the conflict with Landscape Policies, was sufficiently outweighed by the purposes of Structure Plan Policy CO12, LPPS10 and RPG10 Policy RE6, which supported renewable energy proposals subject to no significant adverse impact (see paragraph 187). In coming to that judgment, the inspector was satisfied, as evidenced in the decision letter, that the impacts of the development were minimised to an acceptable level, taking into account location, scale, design and other measures of the development before him. He took into account the key principles set out in PPS22 and there was no obligation on him to go further, either in considering the PPS or in his reasoning.

Ground 10 fails also.

It follows that I dismiss this challenge.

MISS BUSCH: Thank you very much indeed, my Lady. The question of costs. I appreciate that obviously this case went in excess of 1 day but there is in existence a capping of the claimants costs liability to £5,000. Our total costs in actuality are slightly in excess of £16,000, although that does not include the costs of today. So, in those circumstances, I respectfully submit that there is no good reason why the costs should not be assessed summarily now in the amount of £5,000.

THE DEPUTY JUDGE: Mr Taylor, do you want to say anything?

MR TAYLOR: May I just take instructions?

THE DEPUTY JUDGE: Of course, yes.

MR TAYLOR: My Lady, I am afraid we have not been served with a copy of the costs schedule from the Treasury Solicitors and so, in those circumstances, to accept costs in the amount of £5,000 is a little difficult for us.

THE DEPUTY JUDGE: Yes.

MR TAYLOR: Can I suggest that, in the circumstances, it may be better to make a costs order limited in the following way, that costs should be assessed if not agreed, limited to a maximum of £5,000 in accordance with the protected costs order that was made. I do not resist the principle of costs.

THE DEPUTY JUDGE: No.

MISS BUSCH: My Lady, I am told they were in fact served with a copy of the schedule.

THE DEPUTY JUDGE: I am afraid I have not got the original bundles that were before me so I am not able to assist either way on this matter. Obviously they have got mislaid somewhere. But it would seem to be the case, would it not, that if I make the costs order as suggested by Mr Taylor that deals with all matters, and it does not preclude -- assuming the costs schedule is either found or served -- agreement between the parties as to the appropriate level. So that is what I propose to do. It will be the claimant to pay the first defendant's costs, to be assessed if not agreed, in the sum of £5,000.

MR TAYLOR: My Lady, there is two other matters that I want to address. The first is probably the most invidious thing that any counsel has to do, which is to apply for permission to appeal. I will try and keep it as short as I can, given the extensive number of grounds.

In relation to the issue on ground 1, your Ladyship found that, in effect, the issue there turned upon whether the condition 21 could be construed in relation to the words "it shall terminate", as those words not meaning that the scheme should terminate at any point that the local planning authority were satisfied. In my submission, there are reasonable prospects of success that another court may have a different view on the meaning of those words in the context of that condition, particularly given the need for precision in (inaudible) which might otherwise give rise to prosecution. I make no further submissions on ground 1 at this stage.

In relation to grounds 2 and 3, the key point there was that the decision letter itself, when read as a whole, simply does not address why it is that the DBJRG methodology which is suggested was (inaudible) was rejected in favour of the methodology that plainly was not. Whilst one can see from the decision letter that the DBJRG methodology appears to have been rejected, the reasons for its rejection are simply not set out. In my submission that gives reason to reasonable prospects of success in another court.

In relation to ground 4 and uncertainty, your Ladyship will recall that the inspector found in his decision letter at paragraph 130 that, in certain respects, the forecasts were within 1 db of the noise limits. He recorded that the noise propagation report had a plus or minus 3db level of uncertainty. In my submission, what has not been grappled with, with the greatest respect, in your Ladyship's judgment is how the inspector can have concluded that the noise limits were likely to be met in the light of that evidence on a rational basis. In particular, whether he had to grapple with the level of uncertainty which was a key part of the submissions put forward by the DBJRG at the inquiry. Of course, in my submission, the inspector has to satisfy himself that the conditions that he imposed could actually be met in order to impose them. If the conditions cannot be met, then it cannot be reasonable to impose them. So, the conditions are the solution to this issue and (inaudible) that requires an examination of the numbers.

In relation to ground 6, that is the alternatives, I focus my submissions on policy NE10. The key point there is that NE10 has to be construed with the objectives of the policy in mind, and whilst there might be rationality scope for interpretation of that policy, it has to give effect to the objective, and the objective of that policy is to prevent development in the open countryside that is not justified if it can be accommodated within the urban area. In my submission, that gives rise to a requirement to consider alternative modes of renewable energy which simply was not grappled with by the inspector or, with respect, by your Ladyship in the judgment.

In relation to ground 7, that is the point about policy CO1, the simple point there is that, in my submission, the inspector did not apply the right test; that he applied the harm test. If you do not apply the right test, then you do not identify the area where the turbines will give rise to no harm but where they would not enhance either. That area is an area of land in respect of which there is a policy conflict in relation to Policy CO1. That additional policy conflict would have to be given weight and was not. Again, with respect, that issue is not grappled with either by the inspector or by your Ladyship in the judgment.

In relation to ground 9 and bats -- I skip over ground 8 -- I stick to the point about the Habitats Regulations. The key issue there is, your Ladyship having identified that Article 12(1) is engaged, is whether derogation was properly considered by the inspector, and that the first element of Regulation 44(3)(a) is to consider alternatives. Whether there is an alternative is not limited to simply looking for different sites for wind farms or indeed different modes, it would also conclude considering whether or not conditions should be imposed requiring the turbines to be switched off so that the bats would not be harmed. That is a matter which simply was not considered by the inspector. In that context, in my submission, the inspector cannot have been taken to have considered alternatives of the bases.

So far as the discretion issue is concerned, which of course I then have to deal with also, there is clearly an issue of law as to the extent of the court's discretion. We have heard what your Ladyship says but also contrasting that with what is said by the court in the Woolley judgment. In that context, there is a clear issue, a compelling issue in that case that is appropriate for another court to consider.

In relation to ground 10 the submission is simply this, that the inspector identified harm, that the policy required him to consider whether that harm could be further reduced, and that the Westend Green case is not relevant because that is not considering the same policy context. In those circumstances, in my submission, the judgment of your Ladyship does not grapple with the point that, where there is harm identified and the decision maker has not, in the context of a renewable energy project such as the wind farm in this case, gone on to ask themselves whether that harm could be reduced, there is an error of law through the failure to grapple with the requirements of that policy.

So, for all of those reasons, I would submit that there is a reasonable prospect of success and/or compelling reasons for permission to appeal to be granted in this case.

THE DEPUTY JUDGE: Miss Busch, do you want to say anything?

MISS BUSCH: My Lady, I will limit myself to perhaps the opposite of the invidious; complimenting my Lady's judgment. In my submission it could not possibly have been clearer or any more lucid. Perhaps more importantly, in my submission, all of the findings that your Ladyship has made are quite clearly supported by existing authority. So, in my submission, there is no real prospect of success for that reason. Moreover, in my submission, the only point that conceivably raises one of interest or importance is that concerning discretion and that has already been considered by the Court of Appeal. So, I would suggest it is not an appropriate case.

THE DEPUTY JUDGE: Right. Sorry, do you want to say anything?

MISS THORNTON: My Lady, I am in some difficulty as I was not here for the substantive hearing.

THE DEPUTY JUDGE: I appreciate that, I thought I should extend you the opportunity.

MISS THORNTON: My Lady, I think what I would say is, I am instructed that the concern, as far as we can see, most of what Mr Taylor has said relates to matters of planning judgment and, therefore, we do not feel the need to address the court on many of the issues. But if your Ladyship is minded to, or has some concerns about the ground 9 on bats, then I would welcome the opportunity to take instructions just to familiarise myself with this, which does seem to us to be an area of law. But I only feel the need to do that if your Ladyship is minded to take that point further.

THE DEPUTY JUDGE: All right, thank you. Well, I think in those circumstances, Mr Taylor, it would be even more pointless to ask you to reply because there is really not much to reply to.

MR TAYLOR: I do not have anything to say, thank you.

THE DEPUTY JUDGE: I am going to refuse your application, you will have to take it elsewhere. In my judgment, there are no realistic prospects of success, but it is for others to say.

MR TAYLOR: I am obliged. One last thing, which is can I apply for an order that the transcript of the judgment be expedited?

THE DEPUTY JUDGE: Yes, of course.

MR TAYLOR: To assist in the consideration we have to make in the next few weeks.

THE DEPUTY JUDGE: Yes, certainly. I am happy to order that be done.

Thank you all very much.