RWE Npower Renewables Ltd. v The Welsh Ministers

This is the hearing of two closely related challenges brought by the claimant, RWE Npower Renewables Ltd, against the Welsh Ministers concerning a site at Mynydd y Gwair, on which the claimant wishes to install a wind farm. The application is for 19 wind turbines with a maximum height of 127 metres to the blade tip and associated infrastructure. The infrastructure includes 13.9 kilometres of new access track. The site is part of a generally open upland area between Ammanford and the northern outskirts of Swansea, mainly consisting of grazed moorland containing peat deposits. It is registered as common land and is owned by the Somerset Trust.

The first application is made pursuant to section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to the decision of the Welsh Ministers on 21 February 2011 dismissing the claimant’s appeal under section 78 of the 1990 Act against the deemed refusal of planning permission for the wind farm by the City and Council of Swansea. The second is for permission to apply for judicial review of the decision of the Welsh Ministers on the same date to dismiss three applications by the claimant for orders under section 147 of the Inclosure Act 1845 for the exchange of common land at the site with nearby lands. The Welsh Minister’s decisions accepted the recommendations of Mr Wild, an Inspector appointed by the Minister, who conducted an inquiry between 20 July and 6 August 2010.

Both sets of proceedings were launched on 28 February 2011. On 14 April Kenneth Parker J ordered the judicial review proceedings to be heard on a “rolled-up” basis. Accordingly, in respect of the judicial review, I have to consider whether to grant permission, and if I do, to determine the substantive claim.

Formally, the judicial review proceedings also challenge the refusal of two consents under section 194 of the Law of Property Act 1925 for the temporary fencing-off of enclosed areas of common. This, however, did not form part of the submissions at the hearing. Consent for the fencing-off was refused only because planning permission for the wind farm was refused and it appears to be common ground that if planning permission is to be granted, the erection of the temporary fencing will be necessary.

The refusal of planning permission is challenged on two grounds. The first is procedural unfairness by the Inspector in failing to challenge the evidence of the claimant’s expert witnesses that any impact on the peat bog habitat after the application of mitigation would be minor in character but then concluding that the mitigated impact was not merely “significant” but serious enough to justify refusal of permission on this ground alone. The second, and more emphasised, ground is that the Inspector failed to give adequate reasons for his conclusion that the harm or risk of harm to peat bog habitat from the proposed scheme layout was serious enough to justify refusal of permission.

The ground upon which permission is sought to challenge the decision to refuse the applications for orders under section 147 of the Inclosure Act is that the Inspector and the Welsh Ministers misunderstood the claimant’s case and the evidence as to the proposed replacement arrangements for the land removed from common. The Inspector decided that because the exchange land inter alia was not contiguous to the area of common land affected by the wind farm, its location was not suitable to replace that which would be lost from the commons. The claimant’s case was that the main benefit to graziers would be delivered not from the exchange land itself but by the agreement of the Somerset Trust to surrender its grazing rights over the remaining common land, land that was contiguous with the parcels to be taken out of common. It is submitted on behalf of the claimant that the Inspector fell into error in disregarding the Trust’s surrender of its grazing rights over the remaining common land.

The National Environment and Rural Communities Act 2006, section 40, imposes a duty on every public authority in exercising its functions to have regard so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity. The Welsh Ministers are, as a public authority, subject to this duty. By section 40(2) of the Act they are required in particular to have regard to the United Nations Environmental Programme Convention on Biological Diversity of 1992. They are also, by section 42, required to publish a list of living organisms and type of habitat, which in their opinion, are of principal importance for the purpose of conserving biodiversity. Blanket bog is a priority habitat type within the UK Biodiversity Action Plan, and is also included on the Welsh Ministers’ list of habitats with principal importance.

The powers under the Inclosure Act 1845 were originally vested in the Inclosure Commissioners. The Commissioners’ functions in relation to Wales were transferred to the National Assembly for Wales by the National Assembly for Wales (Transfer of Functions) Order 1999 SI 1999 No 672 Article 2, Schedule 1 ) and then to the Welsh Ministers by section 161 and paragraph 30 of Schedule 11 to the Government of Wales Act 2006. By Section 147 of the 1845 Act, the Welsh Ministers may order that land be exchanged for land forming part of common land if they are of the opinion “that such exchange would be beneficial, and that the terms of the proposed exchange are just and reasonable”.

In August 2008 the claimant applied to the City and County of Swansea for planning permission for the wind farm on the site at Myndydd y Gwair. The application was accompanied by an Environmental Statement (“ES”), which assessed the likely impact on peat deposits on the site, which were thought to be of a depth of less than 300mm, as “minor”. The ES stated that wind farm infrastructure would be situated away from significant peat cover. The Council did not determine the application and, in October 2009, the claimant lodged an appeal under section 78 of the 1990 Act against the non-determination of its application. The Council, although an Interested Party to these proceedings, did not take an active part in them.

The Council was to state at the inquiry (see Inspector’s Report, paragraph 33):

“Had the appeal not been lodged, the Council would have refused permission for three reasons…the main elements of the reasons are firstly, that the EIA [Environmental Impact Assessment] failed to consider properly the recommendation that the maximum height for the turbines in this part of SSA E [Strategic Search Area E] should not exceed 100m, because of the scale and type of land form of the area, and to avoid the worst individual and cumulative landscape and visual effects. This does not allow for the proper balancing of adverse impacts against the strategic objective of achieving renewable energy targets. Secondly, the Council considers the landscape and visual impacts to be unacceptably adverse and to outweigh the strategic energy objectives. Thirdly, the EIA fails to adequately justify the selection of the proposed route for construction traffic or to explain what alternatives have been considered. All three reasons state that the proposal is contrary to [the City and County of Swansea’s Unitary Development Plan’s] policies R11, EV22 and EV29.”

The next material development was in January 2010 when the Countryside Council for Wales (“CCW”) published draft proposals on peat habitats. The CCW at that stage did not object to the claimant’s application for planning permission. Although the CCW’s draft proposal had not been adopted by the Welsh Ministers, the claimant decided that in the light of it, further work should be undertaken on the question of the impact of the wind farm on peat deposits. It commissioned further peat survey work by its consultants, Bioscan (UK) Ltd., Halcrow Group Ltd., and Wallingford Hydrosolutions Ltd. Bioscan’s report, Mynydd y Gwair Wind Farm Peat Study, is dated March 2010. Halcrow’s Peat Stability Study and Wallingford Hydrosolutions’s Peat Study Hydrology Report are dated May 2010. These reports dealt inter alia with peat depth, peat stability, peat hydrology and peat ecology. They and one other report were submitted as supplementary environmental information (“SEI”) for the purposes of the appeal.

In March 2010, the Inspector, at that stage only concerned with the section 78 appeal, convened a pre-inquiry meeting. At that meeting, he identified the main issues as likely to be landscape/visual matters, access to the site, “the usual range of wind farm issues including effect on recreational use”, residential amenity, ecology/habitat and highway safety. The claimant informed those present that it would be making a number of applications affecting the commons under section 145 of the Inclosure Act 1845 and section 194 of the Law of Property Act (“the commons legislation”), and CCW stated that it would be giving oral evidence at the inquiry.

The claimant’s applications under the commons legislation were made in April 2010. An Inspector has no jurisdiction to determine such applications. The Welsh Ministers considered that they should be heard in conjunction with and at the same inquiry as the section 78 appeal, and determined together. Accordingly, on 4 May 2010 they recovered the determination of the appeal so that Mr Wild, the designated Inspector, would deal with and make recommendations on both but the decisions would be made by the relevant Welsh Minister.

In view of the nature of the submissions on behalf of the Welsh Ministers, it is necessary to set out more of the evidence before the inquiry than it is usual to consider in statutory applications to quash under section 288.

The introduction to Bioscan’s report states that its more detailed study of peat depth is to inform decisions on the scope and nature of any mitigation that may need to be undertaken. Paragraph 3.2.3 stated that the more detailed survey undertaken delineated some “limited areas of peat thicker than 30cm (300mm)”, “two patches of peat 300 – 600mm thick”, and a greater extent of thick peat at the watershed with the adjoining catchment of the Afon Cathan with “an extensive area of peat 300 – 600mm” containing “a core of 600 – 1000mm and two small patches of peat thicker than 1000mm”. The report also stated (paragraph 4.1) that the location proposed for turbine 4 was on an area with a peat deposit with a depth of more than 1000mm, that turbine 5 was located on a peat deposit with a depth of 300 – 600mm, and that micro-siting within a 30 metre allowance would not take these turbines outside these deeper peat deposits.

CCW’s written submission to the inquiry stated that it was apparent following the submission of the SEI that “the peat resource is more substantial than the original ES determined and that peat…will be directly affected by turbines and access tracks”: see paragraph 4.3.2. At paragraphs 4.3.3 – 4.3.10 CCW made a number of general comments about the importance and sensitivity of peat land habitats and stated wind farm developments should avoid impacts to peat as far as possible. At paragraph 4.3.4 it stated that “operational decisions about whether particular impacts are tolerable will depend on many factors, including site status, the importance of the peatland features, likely significance of impact, potential benefits offered by Habitat Management Plans and the adequacy of mitigation”. CCW also considered (see paragraph 4.3.5) it critical to develop a site layout which substantially avoided the peat resource in the first place.

Paragraph 4.3.7 of CCW’s submission states that the peat land resource at the site has additional significance “given its location close to the bio-geographical limit of the resource in Wales, and the importance of conserving edge of range examples” and (at paragraph 4.3.8) any additional pressure on the relatively small and often fragmented blocks of peat in the South Wales coalfield is likely to increase its vulnerability.

At paragraph 4.3.11, CCW stated that, if permission is granted, the allowable distance for micro-siting should be 100 metres, rather than the 30 metres proposed. It stated that it was particularly concerned with turbine 4 and the associated track, and turbines 9 and 13 and their associated tracks. The former is on deep peat of over 1000mm.

The inquiry opened on 20 July and closed on 6 August. There were two site visits. The first, on 23 July, was to the southern part of the access road. The second, on 5 August, was to the main site and to the land which it was proposed to exchange for common land in the section 145 applications. The Inspector also made two unaccompanied inspections of the site and surroundings and viewpoints on 19 July and 10 and 11 August.

CCW did not give oral evidence at the inquiry. Mr Dominic Woodfield, a director of Bioscan, and Dr Andy Young, a director of Wallingford Hydrosolutions Ltd, gave evidence on respectively ecology and hydrology. Mr Woodfield’s proof of evidence accepted (paragraphs 3.2.2 and 3.3.7) that the entirety of the wind farm site and the majority of the access tracks encompassed habitats that qualified as priority habitats under the UK Biodiversity Action Plan and were listed as “Habitats of Principal Importance” by the Welsh Ministers.

Mr Woodfield stated (paragraph 3.4.2) that, at the time the ES was assembled, the common approach taken by the Environmental Impact Assessment Team was that the deposits on the site were not “deep peat” resources. It was (see paragraph 3.43) CCW’s position statement on the impact of wind farm developments on peat lands in July 2009 in which CCW defined significant peat as 300mm and above that led to the further and more detailed field investigations. Those investigations (see paragraph 3.4.6) revealed that depths of peat encountered in certain parts of the site would now be considered “significant” in the sense of CCW’s stated position. He also stated (paragraph 3.4.7) that, taking the site as a whole, these deposits are comparatively restricted in both extent and depth, but that four of the nineteen turbines and about 1.9 kilometres of the internal access track affects them.

As to the implications of these deposits for the project’s overall impact, Mr Woodfield stated (paragraph 3.4.8) the further investigations showed that the effect on the deposits made relatively little additional contribution to the carbon resources, that the scope for pollution remained largely unchanged, and that anticipated effects remained within the broad scale of “minor” significance identified in the ES. However, he also stated (paragraph 3.4.9) that “additional mitigation measures are intended to minimise impacts on the site’s peat resource”.

The additional mitigation measures to minimise the impact on the peat resource dealt with in Mr Woodfield’s evidence that are relevant to these proceedings are the use of floating tracks and the appointment of a project ecologist and a project hydrologist: see paragraph 4.1.2. Mr Woodfield stated (paragraph 4.2.2) that in the light of the additional mitigation, over the longer term “less than 1.5% of the cSNIC” will be affected, that, without further mitigation the effect on habitat resources could be said to be “a net denudation, albeit of very small magnitude”, and (paragraph 7.4) that “the overall effect on habitat resources after mitigation is assessed not to differ materially from that presented in the ES … and as minimal”. This, he stated, was “largely because the site has a very restricted peat resource, a limited proportion of which is affected, and because the associated habitats are highly degraded as a consequence of … overgrazing and atmospheric pollution”. The CCW was of the view that the degradation of the associated habitats was reversible.

Dr Young gave an assessment of the hydrological impacts in the light of the further work. He stated that the proposed mitigation measures would ensure that “the surface and groundwater environments are sufficiently protected from the potential impacts, and any residual impacts will be only of, at most, minor significance, reflecting that some minor environmental change may occur”: paragraphs 3.1.3 and 3.1.4. He concluded (at paragraph 5.2) that “with appropriate site procedures and mitigation measures, as described within the SEI, there will be no significant impact upon the surface water courses and reservoirs draining the site…as concluded by the ES”. He also stated “there will be no significant impacts on localised peat drainage and water table depth.” The Inspector did not raise any concerns about the views of Mr Woodfield or Dr Young on the impact of the wind farm on the peat habitat.

The Inspector’s report to the Welsh Ministers is dated 27 October 2010. The first sub-section of the conclusions section deals with planning policy. The Inspector stated (paragraph 54) that “the wide range of policy statements at UK Government and WAG level give clear support to national and international targets set for the reduction of greenhouse gases” and “there appears little doubt that this site could make a positive contribution towards meeting government targets”. He then referred to the policies in the City and County of Swansea’s Unitary Development Plan for the protection of the countryside and areas of common land and to policy R11, concerning renewable energy. He stated that while there was almost an inevitable conflict between the objectives of the policies for the protection of the countryside and common land, and a large wind farm, “the tests included within policy R11 require the consideration of what in effect are the same matters”. At paragraph 56 he stated that the criteria of policy R11 introduce a test of “no significant adverse effects” and that paragraph 8.4 of Annex D to TAN8 accepts that significant landscape should be accepted within SSAs. He concluded that in his view in this case the change in landscape would be adverse and “therefore, to that extent, this proposal is in conflict with policy R11”.

The conclusions in the sections on landscape and visual effects, access track and provision of renewable energy are: “the scale of the turbines…could be accommodated within the landscape without unacceptable harm to the landscape character of the site and its surroundings” (paragraph 62); “during the operational phase of the wind farm traffic generation would be slight and should cause no unacceptable harm” (paragraph 77); and the proposal to link directly into the National Grid means (paragraph 85) “there appears little doubt that this site could make a positive contribution towards meeting renewable energy targets at a relatively early date”.

Paragraphs 86 – 91 of the Report deal with the effect on habitat. They state:

“86.

CCW had raised concerns about the effects of the proposal on the peat bog habitat. In the initial ES surveys significant areas of peat had not been specifically identified. CCW has amended its concern about the importance of peat habitats in recent years. Consquently, the appellants commissioned more detailed surveys which were undertaken as part of the supplementary environmental information dated May 2010…This work identified several areas where turbines and access roads would be sited within areas of peat with a depth greater than 300mm.

87.

The concern is that the development could result in changes to the water table with the resulting drying out of the bog. Some effect on habitat is inevitable with a development of this type. Generally turbines, access roads etc have been sited to minimise direct effects on the most sensitive areas. The suggested planning conditions give some flexibility in the detailed citing of the features of the proposals to further reduce any effects. However, CCW suggested a micro-siting condition with a variation of up to 100m: normally the maximum applied in appeal decisions in Wales is 30m.

88.

A variation of up to 100m could result in turbines moving closer to other turbines which would then need to be re-sited. The effects could result in turbines moving significantly closer to sensitive receptors such as nearby dwellings. In my view, variations in the position of turbines or access roads to that extent would significantly change the nature of the proposal which had been subject to the ES and EIA. Thus amendments on this scale should not be done by condition. If I considered that the impact on the peat would be unacceptable then the appropriate course would be to recommend the refusal of permission.

…

90.

On the site inspection I observed that the location of turbine 4 was almost in the centre of the deepest section of peat. The main access track would pass this turbine and cross most of this central area of peat. Also, turbines 9 and 13 and associated tracks and sections of the access track near turbines 6, 7 and 8 would directly affect the peat in those areas of the site…It appears to me that the layout of turbines and tracks was established before the true extent of the peat deposits was known. Whilst some mitigation, such as ‘floating tracks’, could reduce the impact of the wind farm on the peat, there would still be a significant degree of impact on the peat deposits. The site is on the extremity of the peat habitat in South Wales and therefore it is of greater importance as a resource. It appears to me that a relatively minor redesign of the layout might remove most, if not all, of the impact on the peat deposits. However, this would result in a different proposal to that described in the ES and would go beyond an amendment that should be considered as part of the current proposal.

91.

I note that CCW did not attend the inquiry and their evidence could not be subject to cross-examination. However, I have come to my conclusions on this matter having regard to the appellant’s evidence…and from my own observations on site. In my view the risk of an unacceptable degree of harm to the peat habitat is sufficient to justify refusal of this proposal.” (emphasis in paragraph 90 added).

In the section headed “Overall Conclusions” the Inspector stated:

“116.

Setting aside for the moment the question of the effect of the proposal on the peat habitat, I am satisfied that the benefits of the production of renewable energy from this proposal would outweigh the conflict with the development plan and all the other material considerations. In general terms, a development of this number of turbines up to a maximum height of 127m is acceptable in this location. However, for the reasons given, the effect on the peat habitat cannot be overcome by the imposition of conditions designed to mitigate the harmful effects. For this reason, I conclude that permission should not be granted.”

The Inspector also concluded that the three section 147 orders should not be granted. He stated:

“123…I note that the Somerset Trust, as the present owners of the exchange land, would not exercise their grazing rights in respect of that land over the commons. Given the relatively small area of commons affected, this would result in a net gain of grazing capacity to other existing graziers.

124.

However, my understanding is that exchange land must be provided for that which is to be taken out of the common. For most of the stock grazed on the commons the flocks of sheep are hefted flocks…In simple terms, flocks of sheep have an inbred instinct to graze on a restricted area of the common closest to their home farm…Stock therefore does not graze freely over all of the open area of the commons. In addition, the grazing rights on parts of CL 74 are legally restricted to defined areas of the common which relate to the historic hefts. Most farmers do not have rights to drive their stock across other areas of the common outside their own hefts.

125.

Given that general background there are two main aspects to consider in respect of the exchange land. The suitability of the land itself, and the convenience of its location.”

After stating that the exchange land was far better than the open common areas, the Inspector stated the potential problem was uncertainty as to who would manage the enclosed exchange land (paragraph 126) and (paragraph 128), that there appeared to have been no successful negotiations between the appellants, the landowner and the commoners to resolve the problem of how to make the best use of the exchange land. He then stated (paragraph 129) that he had greater reservations about the location of the exchange land. Some of that land was remote from the relevant common, so that the only effective way for graziers to make use of it would be to move stock by road (see paragraphs 129 – 130) and that the problem was (see paragraph 132) made more difficult by the amount of land which was proposed be removed from the commons. While (paragraph 137) he did not consider that the rights of the public to enjoy the “urban common” would be significantly reduced by the wind farm, he concluded:

“138…In the absence of any firm management agreement between the parties concerning how the exchange land should be used, and having regard to the distance between the areas of common CL 68 and 74 affected by the wind farm and the locations of the respective areas of exchange land, the exchange is not suitable to replace that which would be lost from the commons.”

The Welsh Minister’s decision letter is dated 21 February 2011. The Minister dismissed the section 78 appeal and rejected the applications under sections 147 and 194. The Minister stated:

“10.

The Inspector considered the wide range of issues arising from the proposed development and, setting aside its effect on the peat bog habitat, he was satisfied that the benefits of the production of renewable energy from this proposal would outweigh the conflict with the development plan and all other material considerations. Subject to the following comments the Minister, also setting aside the effect of the proposed development on the peat bog habitat, agrees the Inspector’s conclusion on the other issues raised by the proposed development.”

In relation to the peat habitat, the decision letter (paragraphs 16 – 17) referred to CCW’s representations and its view that the presence of deep peat indicates placement with the blanket bog priority habitat type of the UK Diversity Action Plan, a habitat also included within the Local Biodiversity Action Plan, and also included on the Welsh Assembly Government’s list of types of habitat of principal importance. The letter stated that it was therefore the duty of the Welsh Ministers to conserve the peat habitat. The decision letter also stated (paragraph 18) that the Minister agreed with the Inspector that the possibility of relocating turbines would have consequences which have not been considered, would significantly change the nature of the proposal, and that such a change could not be brought about by a condition.

The Minister, however, (paragraph 19) offered “no comment on the Inspector’s view that a relatively minor redesign of the layout might remove most, if not all, of the impact on the peat deposits”. This was because “the consideration of such issues, and any application for planning permission that would need to be made should significant changes be proposed, must be for the local planning authority in the first instance”. Subject to those comments, the decision letter stated (paragraph 20) that the Minister agreed with the Inspector’s conclusions. She accepted that “the development as proposed raises the risk of an unacceptable degree of harm to the peat habitat which is sufficient to justify refusal of this proposal”.

As to the applications made under section 147, after making comments on matters that are not the subject of these proceedings, the Minister stated (paragraph 24) that subject to those comments she “agrees the Inspector’s conclusions on the merits of the three applications made under section 147… and accepts his recommendation that the orders applied for…be not granted”. The decision letter stated that, from the evidence before her, the Minister “is satisfied that, in the light of the hefting system on CL 77 and distance of the exchange from that affected by the proposed development, the location of land is not suitable as exchange land for that lost in CL 77”.

The first of the challenges in the section 288 application is that the procedure at the inquiry was unfair. It is submitted that the unfairness arose because the Inspector did not put to Mr Woodfield and Dr Young, who were tendered for cross-examination, his doubts about their conclusion that the anticipated effects of the project on the peat deposits would, with the additional mitigation measures proposed, remain within the broad scale of “minor” significance identified in the Environmental Statement. The second is that the reasons in the Inspector’s report and recommendations are deficient because they do not explain why he disagreed with Mr Woodford and Dr Young’s conclusions.

On any application under section 288 this court may quash a decision if (see section 288(5)(b)) it is satisfied that the interests of the applicant “have been substantially prejudiced by a failure to comply with any of the relevant requirements”. There is no real difference between the parties as to the relevant principles of law as to the approach to be taken by the court when considering an application under section 288 of the 1990 Act. But, as Mr Nardell QC observed, there was a difference in the emphasis placed on various factors.

In the context of the present case the material principles can be summarised as follows:

Mr Lewis submitted that it was clear from the reasons given by the Inspector, which, with one exception (see [33]), were accepted by the Welsh Minister, that the problem with the application was the location of certain turbines and part of the access track. The claimant knew that to succeed in an application it would have to redesign the wind farm to take the turbines and the track off the deep peat areas. Mr Lewis pointed to the fact that the evidence before the Inspector in the form of the claimant’s supplementary environmental information and the proofs of Mr Woodfield and Dr Young showed that three turbines and some of the access track were located at the centre of deep sections of peat and would directly affect the peat. He submitted that it was clear that the Inspector and the Welsh Minister considered that this would give rise to the risk of unacceptable harm to the peat habitat and that, although the proposed mitigation measures could reduce that risk of harm, it would still be significant.

The relevant statutory duties and regulatory considerations in the 2006 Act, the UK Biodiversity Action Plan, and the Welsh Ministers’ list require the Welsh Ministers to take such steps as are reasonably practicable for the conversation of the blanket peat bog habitat of the site. The Inspector considered that redesigning the farm might remove most of the adverse impact, but that that would be a different proposal and could not be dealt with by a condition. It was on this point that the Welsh Minister reserved her position. Mr Lewis submitted that the assessment of the question of “significance of harm” is a matter of planning judgment and therefore for the Inspector and the Welsh Ministers. In the light of this and the claimant’s knowledge that it would have to redesign the wind farm to avoid the areas of deep peat, he submitted that the requirements set out in the case law on reasons, in particular in Lord Brown’s speech in the South Bucks case, were met.

The case law on reasons shows, on the one hand a clear rejection of the over-analysis of reports and forensic points, in particular those which are disguised attempts to revisit the planning merits, and a clear acceptance of an approach emphasising substance and the nature of the issue.

The recent decision of the Court of Appeal in Tegni Cymru v The Welsh Ministers [2010] EWCA Civ 1635 is instructive. That case was a challenge to the decision of an Inspector dismissing an appeal against the refusal of planning permission for a wind farm by Denbighshire County Council. The turbines met the standards and indicative levels suggested in the relevant policy, but local residents had given accounts of the noise from existing turbines in the area, and the Inspector, in a visit to existing turbines in the area, experienced their noise. He concluded that the proposed wind farm created a level of nuisance to residents and a level of harm which would conflict with the relevant Unitary Development Plan. Wyn Williams J ([2010 EWHC 1106 (Admin)) criticised the Inspector’s reasons, broadly speaking on the ground that, given the compliance with the relevant standards on noise and the fact that the existing wind farm operated within its noise provision, there was no or insufficient explanation of how the evidence from local residents might be sufficiently compelling to displace the case presented by the developer. Pitchford LJ considered (at [25]) that at the heart of Wyn Williams J’s criticism lay the lack of detail in the Inspector’s reasons for reaching the conclusion he did. However, Pitchford LJ concluded that the lack of detail did not affect the cogency or lawfulness of the decision and stated (at [27]) that “read as a whole the relevant paragraphs reveal an acceptable line of reasoning towards the Inspector’s conclusion” and that “none of the parties could really be in any doubt what was the basis for his planning judgment”. He considered that Wyn Williams J had been tempted into a textual analysis of the decision letter when none was appropriate.

The jurisprudence shows that there should be particular caution where the reasons challenge relates to what is essentially an exercise of discretion. That was the position in both the Porter case and the Save Britain’s Heritage case. Porter’s case concerned whether Mrs Porter’s personal hardship constituted “very special circumstances” outweighing the harm to the green belt (see Lord Brown at [38] in South Bucks) and Save Britain’s Heritage’s case concerned an aesthetic judgment as to whether the proposed replacement building was of sufficient merit to justify a departure from policy. The decision of the Inspector in the Tegni Cymru case involved the application of settled guidelines to particular facts, and in that sense also involved an element of discretion. The Inspector’s conclusion, in the light of the evidence of the residents and his site visit and own experience of the noise from the existing turbines, was that those indicative levels were not the last word on “acceptable” noise levels. But the Tegni Cymru case did not, as this case does, involve a choice between rival expert views.

I have concluded that the Inspector’s reasons in the present case do not enable the reader to understand why, notwithstanding the evidence of Mr Woodfield and Dr Young on the peat issue, the principal important controversial issue, he concluded that the impact of the proposal was significant and sufficed to justify refusing the application. The evidence by CCW (see [16]) was that operational decisions about whether particular impacts are tolerable will depend on many factors. Although Mr Woodfield and Dr Young were available to be cross-examined, their views were not challenged at the inquiry. Their statements engaged with the objections put by CCW. The underlined section of paragraph 90 of the report set out at [27] contains a direct disagreement with their evidence. The claimant and others knew from that paragraph and from paragraph 86 of the report that the problem was the location of some of the turbines and part of the access track. But they did not know why the Inspector rejected the views of Mr Woodfield and Dr Young that the effect of the development on the peat would, with the proposed mitigation measures, not be significant.

I have referred (see [37(6)]) to the statements in Eckersley v Binney, Flannery v Halifax Estate Agencies Ltd and Dunster Properties v FSS . I accept Mr Nardell’s submission that, although concerned with a difference between two Inspectors, Dunster Properties v FSS is of assistance in the present case where the Inspector is departing from the reasoned views of two expert witnesses. Accordingly, it was incumbent for him or for the Minister to explain briefly, perhaps very briefly, why the views of the two experts were rejected.

It is not clear from the report whether the disagreement was because the claimant’s experts had focused on the effect of the development over the site as a whole, stating (see [23]) that only 1.5% would be affected, whereas the Inspector focused on the effect at those locations where turbines or track were directly or very nearly directly over deep peat, or whether he agreed with CCW’s evidence (see [16]) that it was critical to develop a site layout “which substantially avoided the peat resource”. While the Inspector’s reference at paragraph 91 of his report to the fact that CCW’s evidence could not be subject to cross-examination suggests (contrary to Mr Nardell’s suggestion) that he was alive to the relative weight of oral and written evidence and could also suggest that he did not rely on the views of CCW, the second of these points is not entirely clear. Also, although Mr Lewis pointed to CCW’s evidence that existing degradation from overgrazing and pollution was reversible, there is no reference to this in the report. It cannot be said that this was why, or partly why, the Inspector rejected the evidence of Mr Woodfield and Dr Young. In the light of the authorities to which I have referred there was no need for an explicit reference to their evidence provided that, in substance, why it was rejected is stated briefly. Here it was not and, given that, the reasons did not, in Lord Brown’s words in South Bucks DC v Porter (No. 2), enable the “disappointed developers to assess their prospects of obtaining some alternative development permission”.

I do not consider that this is a case like Clarke Homes Ltd v Secretary of State (1993) 66 P & CR 263 where the Minister’s decision letter cured any problem in the reasons in the Inspector’s report. The Minister broadly agreed with the Inspector and the fact that she distanced herself from the Inspector’s view that a relatively minor redesign might remove most of the problems, tends, if anything, to increase the claimant’s difficulty. The claimant was substantially prejudiced because it did not know what it would have to do in any amended application, and whether the Minister’s distancing herself from the Inspector’s view about the extent of any redesign necessary meant that, in substance, she favoured or was inclined to favour CCW’s position.

In the other limb of the section 288 challenge, Mr Nardell submitted that the failure of the Inspector to challenge the evidence of Mr Woodfield and Dr Young constituted procedural unfairness. The onus was on the claimant to show that the construction of the wind farm would not have a significant adverse effect on the peat habitat. They had adduced evidence to this effect responding inter alia to CCW’s evidence. In view of my conclusions on the reasons in the report it is not necessary for me to decide this point. But I incline to the view that, because as in Sabey’s case, there was nothing to alert the claimant or those witnesses to the Inspector’s doubts about that evidence, it was procedurally unfair not to alert the claimant to those doubts.

I turn to the application for permission to apply for judicial review of the rejection of the applications for orders under the Inclosure Act 1845. It is common ground that since the Minister accepted the Inspector’s conclusions, the issue is whether the Inspector’s report erred in law or was otherwise flawed in public law terms. I do not consider that the claimant has raised an arguable case that the report is so flawed.

The claimant’s case (see the grounds, paragraph 46) is based on a failure by the Inspector to appreciate the basis on which the net gain in grazing relied on by the claimant was to be achieved and thus a misunderstanding by him of the claimant’s case. But the Inspector clearly understood the claimant’s case. It was, as Mr Nardell accepted, accurately set out in the section of the report summarising the claimant’s case. Paragraph 23 of his Report stated that the claimant submitted that the issues relating to the management of the use of the exchange land assumed the exchange land would be required by the commoners but this was not the case. The Report also states: “it is clear from [Mr Hadley’s] evidence that the area benefiting from grazing rights that would be surrendered exceeds that would be lost to the development by a factor of 10”, and “there would be an overall net gain in grazing potential due to the wind farm, quite apart from the introduction of exchange land”. The relevant part of the conclusions section also shows understanding of the claimant’s case. The first sentence in the part of paragraph 123 of the report I quote at [29] notes that the Somerset Trust “would not exercise their grazing rights in respect of that land over the commons” (emphasis added). “That” is clearly a reference to the existing land and not the exchange land.

Mr Nardell’s skeleton argument focused on a slightly different point. He submitted that the Inspector “disregarded” the benefit from the surrender of the Trust’s grazing rights in reaching his conclusion on the benefit of the exchange and the just and reasonableness of the terms, the test required under section 147. He submitted that the Inspector only considered the suitability of the exchange land and in disregarding the benefit from the surrender did so in an effective vacuum. At the inquiry, however, the claimant did not treat the use by the graziers of the excluded land as irrelevant. Although paragraph 66 of the closing submissions made on behalf of the claimant stated that the exchange land would not be required by graziers, paragraphs 60(c) and (d) deal with such use and refer to the need for movement of stock by road.

The Welsh Assembly Government’s notes for applicants for an exchange of land under section 147 state (paragraph 7) that before making an order of exchange the Welsh Ministers “must be satisfied that the proposed exchange would be beneficial to the owners of the respective lands, and that its terms are just and reasonable”. Paragraph 14 states that in deciding whether the terms are just and reasonable, the Welsh Ministers will have regard to representations about “its effect” on the interests of the owners of any common rights over the land. In view of the broad nature of the discretion under the 1845 Act and the need to be satisfied that the terms of the exchange are just and reasonable having regard to the effect on the interests of the commoners, the focus of the Inspector on the suitability of the exchange land itself, its location and, given the need for fencing, who would manage it, was not arguably erroneous.

For the reasons I have given, the claimant’s application under section 288 of the 1990 Act succeeds on the ground that the decision of the Welsh Minister and the Inspector’s report are affected by a deficiency in the reasons. In the circumstances it was also unfortunate that the Inspector failed to alert the claimant’s experts to the doubts or concerns he had about their evidence and to give them an opportunity to deal with those doubts before he concluded his report. It was not suggested that the decision could stand if the reasons ground was established. The consequence is that the claimant’s planning appeal should be reconsidered. The application for permission to judicially review the rejection of the applications under section 147 of the Inclosure Act 1845 is refused.

I propose to hand down this judgment at the Birmingham Civil Justice Centre on 8 July 2011 at 10:00am. Copies of this judgment will be made available to the Cardiff Civil Justice Centre by the time of handing down, so that any person interested in this judgment, but who is not a party, may collect a copy on the day of handing down.