Plant, R (On the Application Of) v Pembrokeshire County Council & Anor

On 9 July 2013 the Defendant planning authority ("the Council") granted the Interested Party ("Princes Gate") planning permission for the erection of two wind turbines on land at New House Farm, Ludchurch, Narberth, Pembrokeshire ("the Site"). New House Farm is an organic dairy farm, but is also the home of a spring water bottling plant, which has recently installed a machine to blow its own bottles that requires substantial electricity for its operation. Princes Gate applied for permission to construct its own wind turbines with a view to reducing its energy costs, and becoming operationally carbon neutral. The proposed turbines are "medium scale", with a hub height of about 60m, a rotor diameter of 53m and a maximum tip height of 86.5m; and the development includes various ancillary works such as an access track, transformers and underground cabling.

The Claimant lives near the Site, and is part owner of a nearby ancient monument, the Castell Meherin Iron Age fort.

Princes Gate made the application for planning permission on 12 October 2011.

There were a number of objectors, including the Claimant. The Site is near several ancient monuments - the Castell Meherin scheduled monument is 100m away; the Parc-y-Gerrig standing stone, 150m; the Newhouse group of Bronze Age barrows, 600m; and the Blaengwaith-Noah camp, 800m - and the objectors included the Council's own archaeological advisers, the Dyfed Archaeological Trust.

On 18 November 2011, in response to a request, the Council issued a screening opinion, to the effect that the development did not require an environmental impact assessment ("EIA").

Planning permission was granted by the Council's Planning and Rights of Way Committee ("the Committee") on 17 September 2012. However, the Claimant issued judicial review proceedings (Claim No CO/129491/2012) challenging the decision on several bases, including the ground that the officer's report (and, in its turn, the Committee who effectively adopted the report) had failed properly to interpret Policy 84 of the then-current Joint Unitary Development Plan for Pembrokeshire 2000-2016, and had thus approached a material issue incorrectly. The report said that there was compliance with that policy because, although it concluded that there was medium adverse impact on schedule monuments, this was not significant. However, Policy 84 provided that, "Development which adversely affects important archaeological remains and/or their settings will not normally be permitted", i.e. it required any adverse impact on historical sites to be treated as significant. The Council accepted that the Committee had erred in law, and subjected to judgment on that basis. The September 2012 planning decision was quashed.

Further screening opinions were issued by the Council on 18 January 2013 (incorrectly dated 2012) and 13 February 2013. Each concluded that the development did not require an EIA.

The Committee reconsidered planning permission at their meeting on 21 May 2013, and determined to allow the application, that permission being issued on 9 July 2013. It is that grant of permission that is now challenged.

Mr Richard Harwood QC for the claimant relies on two grounds, as follows:

On 22 October 2013, His Honour Judge Jarman QC granted permission to proceed on Ground 1 and the first limb of Ground 2. The other two limbs of Ground 2 - which appear to me to be discrete grounds - appeared first in the Claimant's Reply. However, no point is taken by the Mr Reuben Taylor for the Council as to lateness. Therefore, I propose to deal with the merits of these grounds in turn. Other grounds previously relied upon by the Claimant are no longer pursued.

As his first ground, Mr Harwood submitted that the officer's report upon which the Committee based their decision to grant planning permission was flawed, because it misunderstood and misapplied relevant provisions of the local development plan.

The legal propositions relevant to this ground are well-established.

By the time of the fresh decision in this case, the Unitary Development Plan that was the focus of the earlier decision had been replaced by the Council's Local Development Plan (up to 2021) ("the LDP"), which was adopted by the Council on 28 February 2013; and the application stood to be determined in accordance with that new local policy.

The express objective of the LDP is to contribute to the achievement of "sustainable development", by "[providing] the policy context for directing development to appropriate locations, conserving the natural, built and historic environment and providing a basis for rational and consistent decision-making on planning applications" (paragraphs 1.1 and 1.2); and its express "overarching aim" is to "ensure that Sustainable Development is achieved" (paragraph 5.6). Part 4 of the Chapter 3 ("Key Trends and Issues") identifies the following, among others, as key planning issues: "Efficient use of resources", "Meeting national targets for renewable energy" and "Loss of and threats to heritage assets", the heritage assets of the county being "an important part of what makes the... area distinctive" (paragraph 3.33). Chapter 4 ("Vision and Objectives") identifies as strategic objectives "Mitigating and responding to the challenge of climate change" (Objective A), and "Protecting and enhancing the natural and built environment" (Objective J), "To conserve and enhance the historic environment" being an identified sub-objective. Chapter 5 "sets out the spatial strategy and the Strategic Policies guiding future development and land use ..." (paragraph 1.10). Chapter 6 "sets out the General Policies that will be used to guide development and assess future planning applications" (paragraph 1.11).

Policy SP1 particularly concerns "Sustainable Development", which is its cross-heading. Under section 79 of the Government of Wales Act 2006, Welsh Ministers have a statutory duty to make a scheme setting out how they propose, in exercise of their functions, to promote sustainable development. The current scheme is "One Wales: One Planet: The Sustainable Development Scheme of the Welsh Assembly Government" (May 2009). That defines "sustainable development" as follows:

That sets the context of policy SP1, which provides as follows:

The notes go on to say:

The policy is explained in paragraphs 5.6 and 5.7:

Policy SP16 ("The Countryside") states that:

Paragraph 5.86 explains:

The relevant General Policies are GN1, GN4 and GN38.

Policy GN1 ("General Development Policy") provides, so far as relevant to this claim:

Policy GN38 addresses "Protection and Enhancement of the Historic Environment":

Paragraph 6.154 builds on that policy:

Policy GN4, chiming with SP1 and paragraph 5.7 which I have already quoted, covers "Resource Efficiency and Renewable and Low-carbon Energy Proposals":

After referring to the United Kingdom targets for energy from renewable resources under the EU Renewable Energy Directive - 15% by 2020 - the LDP goes on to say:

At their meeting on 21 May 2013, the Committee had the benefit of a report from a planning officer, namely the Council's Director of Development. That report identified the main issues raised by the application as including the principle of development (Policies SP1, SP16, GN1 and GN4), and "Effect upon matters of historic interest" (Policy GN38)". In paragraph 6.10, it concluded that "any adverse effect on the landscape character, quality or diversity would be minimal and environmentally acceptable". Therefore, it said, although it would be contrary to paragraph 3 of Policy GN1, it would be in accordance with Policy GN4. In paragraphs 6.11-6.25 of the report, the officer addressed, with patent care, each of the relevant historic sites, including concerns raised by the Cadw and the adverse recommendations by the Council's own archaeological consultants, the Dyfed Archaeological Trust. However, after noting that recommendation, the report said (at paragraph 6.24):

Nevertheless, the report concluded that the proposal would have a medium impact on scheduled ancient monuments, and would thus be in conflict with policy GN38.

The report as a whole concluded:

Mr Harwood submitted that, having found that the development proposal was contrary to Policies GN1 (landscape) and GN38 (historic environment), the Committee erred in concluding that the development was "environmentally acceptable" and thus in compliance with Policies GN4 (renewable energy) and SP1 (sustainable development). He submitted that a development which contravenes any environmental policy within Policies GN1 to GN4 and GN33 to GN38 cannot, as a matter of law, be "environmentally acceptable", and hence cannot, as a matter of law, be in compliance with Policy GN4 or Policy SP1 or, indeed, with the LDP. Thus, if a proposed development has any adverse effect at all on the landscape character - or landscape of historical, cultural or archaeological importance, including setting - that development cannot be in accordance with the LDP. Given that the LDP is drafted on the basis that any such adverse effects are a policy trump card, although other material considerations can overcome the presumption that development that is not in accordance with the plan will not be allowed, Mr Harwood submitted that it is unlikely that in practice they would do so, in this context,. The firm policy of the LDP is, he said, that a development that has any adverse impact on the landscape character or landscape of historical importance will not be allowed in Pembrokeshire; and it is a policy that is unlikely to be overridden by any other material considerations including benefits that might be shown to accrue from the proposed project, no matter how small the adverse impact of the landscape or how great the benefits of the other considerations even where those might be environmental benefits.

However, I am unpersuaded by that submission.

As Mr Taylor forcefully submitted, the overarching aim of the LDP is to ensure sustainable development is achieved, Policy GN1 expressly providing a framework for the evaluation of development impacts, good and bad. It would be remarkable if that aim was subverted by a particular consideration being, as a matter of policy, paramount or trump.

However, that is not the nature of the LDP. In respect of this application for planning permission, there was a clear policy conflict between the contribution that would be made by the development to renewable sources of power on the one hand, and the adverse impact it would have on the landscape character or landscape of historical merit and archaeological importance, and its setting, deriving from the scheduled monuments to which I have referred. Both of those factors are "environmental" in nature. Reading the officer's report fairly and as a whole, it is clear that the author had both of those considerations well in mind. As I have indicated, he set out, in some detail, the sites affected, and came to a judgment as to the degree of adverse impact the development would have on them. On the other hand, he also set out the Welsh Government's commitment to more sustainable forms of energy, and the fact that this development would make a contribution to increased use of renewable sources of power (paragraph 6.41). It noted that, as the electricity generated by the turbines would offset the energy used by Princes Gate in its water bottling operations, that would result in "a positive environmental effect" (paragraph 64). The report's conclusion - that the adverse effects on the landscape (including the moderate impact on the archaeological sites, noted to be contrary to policy GN38) - is set out in paragraph 6.46 of the report (quoted at paragraph 29 above).

Therefore, in short, the report found that the proposed development conflicted with criterion 3 of Policy GN1 (i.e. there would be an adverse impact on the landscape character, quality and diversity) (paragraph 6.10); and Policy GN38 (i.e. it would not protect the relevant archaeological and historic sites and landscapes) (paragraph 6.23 and 6.25). However, it accorded with policies GN4 and SP1, because that adverse impact was outweighed by the environmental benefits the development would bring, particularly the contribution to renewable energy resources: the development was consequently "environmental acceptable", and acceptable overall such that the report recommend acceptance of the proposal.

The submission made by Mr Harwood, that a proposal which is in breach of any of the GN policies cannot as a matter of law comply with Policy SP1, is unsustainable. Policy SP1 is concerned with "sustainable development". It in fact requires only that proposals show how positive impacts will be achieved and negative impacts minimised, so that an informed decision on sustainability can be made. But, in any event, a development does not become "not sustainable" simply because, in one aspect, it has an adverse economic, social or environmental impact; or because it is contrary to one of the GN policies. As I have indicated, whether a development is sustainable requires an assessment of whether overall the development achieves a positive economic, social and environmental impact; i.e. whether, on the basis of all the material factors, the proposed development is appropriate and acceptable in planning terms. Nothing in the LDP entrenches landscape character in the way in which Mr Harwood suggests. Indeed, as I have indicated, such entrenchment would be contrary to the overarching aim of the plan.

Policy GN4, as a matter of policy, requires development which enables the supply of renewable energy through environmentally acceptable solutions to be supported. Again, that clearly requires an exercise of judgment as to whether, on the basis of all material considerations given the weight the planning authority considers appropriate, a proposed development is acceptable in overall terms, from an environmental point of view. It does not, and cannot arguably, exclude a development because, in a single aspect, it has some adverse environmental impact. In this case, with other material considerations, the author of the report had to balance the adverse environmental impact of the proposed development as a result of the proximity of the scheduled ancient monuments, against the positive environmental impact of the contribution to renewable energy resources. That balancing exercise he conducted. He concluded that the adverse impact of the former was outweighed by the latter; in other words, he concluded that, overall, this development was environmentally beneficial. That was a planning judgment he was, clearly, entitled to make.

Mr Harwood accepted that, where there were competing strands of policy within a development plan, it was open to a planning decision-maker to give weight to those discrete policies and determine which, if any, of them should be dominant in a particular case. On the basis of his submission - that this development was contrary to Policies GN1 and GN38, and SP1 and GN4 - there was nothing in the proposal that could have led any decision-maker properly to conclude that this proposal was in accordance with the LDP. However, within the four corners of the LDP, the decision-maker was bound to consider and weigh considerations which, as strands of policy, competed; and, in my judgment, it was quite open to the officer's report (and the Committee in following the report) to conclude that, although in conflict with Policies GN1 and GN38, the proposed development was in accordance with the LDP because it was within Policies SP1 and GN4.

For those reasons, Ground 1 fails.

European Directive 2011/92/EU, implemented in Wales by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999 No 293, "the 1999 Regulations") (Footnote: ¹), is designed to ensure that developments which may have a significant effect on the wider environment ("EIA developments") are subject to enhanced consultation and assessment of that effect. Some proposed developments, by their nature, attract those enhancements in any event ("Schedule 1 developments"). Others may attract those enhancements because they are "likely to have significant effects on the environment by virtue of factors such as their nature, size, or location" (regulation 2(1)) ("Scheduled 2 developments"). That necessitates an initial assessment of whether particular Schedule 2 development is likely to have such effects. Where it appears to a planning authority that it has an application for Schedule 2 development for determination, then it must adopt a "screening opinion", i.e. a "written statement of the opinion of the relevant planning authority as to whether development is EIA development" (regulations 2(1), 5 and 7). If it concludes that it is likely to have such effects, then it is required to have an EIA: if it concludes that it is not, then there is no additional requirement.

By regulation 4(5), where a local planning authority has to decide whether particular Schedule 2 development is an EIA development, it is required to take into account the selection criteria set out in Schedule 3. Paragraph 2 of the Schedule 3, headed "Location of development", provides, so far as relevant to this claim:

Those regulations are supplemented by Welsh Office Circular 11/99, which indicates that, in the Secretary of State's view, one type of case where, in general, an EIA would be needed for Schedule 2 development is for development "with unusually complex and potentially hazardous environment effects" (paragraph 33); although an EIA is said to be more likely for a wind farm where it is a commercial development of five turbines or more (Annex A, paragraph A15). The Circular stresses that environmental sensitivity may lower the threshold (Annex A, Introduction).

Although the Claimant claims that all three screening opinions have some common faults, the Council rely on the third screening opinion, dated 13 February 2013, and it is upon that I will focus.

There are three sub-grounds.

The LANDMAP assessment indicted that the Site is of "high" historic and cultural significance. Further, in the first officer's report (prepared for the first, now quashed, planning decision), the officer concluded (at paragraph 3.8):

Mr Harwood accepts that the screening checklist and opinion properly identify the schedule monuments that are close to the Site. Paragraph 2 of the opinion reads:

In my view, that is too fine a point. Screening opinions drafted by planning officers, like officers' reports, cannot be read too scrupulously; they too are written by officers and are designed for a knowledgeable readership, and must be read accordingly (R (Anderson) v York City Council [2005] EWHC 1531 at [34]-[35]). The correct approach was emphasised recently in R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157 at [20]. Reflecting similar comments by Carnwath LJ (as he then was) in R (Jones v Mansfield District Council [2003] EWCA Civ 1408 at [59], Moore-Bick LJ said this:

In this case, I am satisfied that, in making his screening opinion decision, the officer on behalf of the Council did take into account the historic and archaeological landscape effects required to be taken into account by the 1999 Regulations. Whilst parts of the paragraph 3 of the opinion do focus on individual monuments, the conclusion is broad, namely that the nature and the scale of the proposed turbine would not cause significant environmental impact sufficient to trigger its categorisation as an EIA development. The officer had before him the LANDMAP assessment, and the earlier officer's report to Committee which identified the historic and cultural landscape as being of high importance. Mr Harwood submitted that there was nothing in the screening opinion, or indeed, checklist, that evidenced the different officer taking those documents into account. but there is no reason to suppose that that officer, in considering matters for the third screening opinion, did not have all of this in mind; and the conclusion to which I have referred is clearly wide enough to cover both settings and landscape character issues.

For those reasons, this first limb fails.

Moving to the section sub-ground, a planning authority which has an obligation under the Directive and the 1999 Regulations to determine whether Schedule 2 development is "likely to have significant effects on the environment ..." (and consequently an EIA development requiring the enhanced consultation and assessment procedures that are thus engaged) cannot avoid that obligation by saying that environmental information will be sufficiently available without requiring a formal environmental statement; because the very purpose of a screening opinion is to determine whether the more rigorous consultation and assessment required by the Regulations is in fact required (R (Lebus) v South Cambridgeshire District Council [2002] EWHC 2009 (Admin) at [10]-[13] per Sullivan J (as he then was)).

Mr Harwood submitted that the Council erred in producing a screening opinion which identified potential environmental impacts, but failed to consider their significance in terms of the 1999 Regulations. The screening checklist, which accompanied the third screening opinion, identified potential adverse impacts, but then merely said that they would in due course be considered in the Landscape and Visual Impact Assessment ("LVIA") without reaching any conclusion as to their significance in EIA terms. Mr Harwood referred specifically to answers 10, 15, 18, 21, A3 and A4 of the checklist. As a result, he submitted, the Council failed in its obligation to determine, through the screening opinion, whether the proposed development was likely to have significant effects on the environment.

However, I do not consider that submission to be good. The checklist is no doubt a useful tool which sets out information that informs the screening decision, but it is not the screening decision itself. That is confirmed by Mr Martin Allen, who is a Senior Planning Officer with the Council, who in fact prepared the screening checklist in this case, at paragraph 13 of his statement dated 19 February 2014. Although the opinion is signed by the Council's Head of Planning, Mr Allen also appears to have made the substantive screening decision. He explains in his statement (at paragraph 22):

So (i) Mr Allen confirms that he had sufficient information to determine - negatively - the question required of a screening opinion, i.e. whether the proposed development was likely to have significant effects on the environment; (ii) reminding us that, even absent an EIA, environmental factors are a material consideration for the planning authority to consider in making a decision on a planning application, he inserted in the checklist answers references to further information that might derive from an LVIA in due course which might assist in that exercise; and (iii) no criticism can be leveled at Mr Allen or the Council for not providing this evidence earlier, because it responds to a ground that was not run until the reply was served.

Irrespective of that evidence, on the face of the screening opinion and the checklist alone, this ground would, in my view, have faced substantial problems. The checklist provides information to the relevant decision-maker, and there are questions about (e.g.) the area and population that might be affected (questions A4 and A6). However, the checklist does not seek to assess the impact of the development: that that is the task of the opinion, which in this case it performs. This case is very different from Lebus.

I am not convinced that there is any ambiguity; but, in any event, any ambivalence has thus been resolved by Mr Allen's statement. That does not fall foul of the principle illustrated by R (Lanner Parish Council) v Cornwall Council [2013] EWCA Civ 1290, that an authority cannot seek to adduce ex post facto evidence which directly contradicts its own reports of what it decided and how its decisions were reached (see [64] per Jackson LJ); because the evidence of Mr Allen is not directly contradictory to such documents. Otherwise, evidence as to reasons may be provided in additional documents (see R (Mellor) v Secretary of State for Communities and Local Government (Case C-75/08); [2010] PTSR 880 at [59]; and Bateman at [21] per Moore-Bick LJ).

In my judgment, there was no arguable failure by the Council to engage with the issue required to be answered by the 1999 Regulations, namely whether the proposed development was likely to have significant effects on the environment; a question in the event answered in the negative.

Finally, Mr Harwood submitted that the third screening opinion contained fatal internal inconsistencies, as between paragraph 3 of the opinion itself and the screening checklist which accompanied it. Paragraph 3 stated:

Mr Harwood submitted that this provoked several inconsistencies:

Mr Taylor submitted that, looked at fairly and as a whole, there were no material inconsistencies between the screening checklist and the opinion.

I consider Mr Taylor's submission compelling. In my view, there are no arguable material inconsistencies between the screening checklist and the opinion. Any ambiguity - and, again, I struggled to see much, if any, at all - has been clarified and resolved by Mr Allen's statement.

For those reasons, I consider Ground 2 also fails in each of its three aspects.

I have given my views on the merits of each ground. In respect of the second and third sub-grounds of Ground 2, in my view, that they are discrete grounds and probably require permission to amend and to proceed. To avoid any confusion, although I might have found them to be unarguable, I grant any permission to amend and permission to proceed required. However, as to all grounds, I refuse the substantive application.

On that basis and in those terms, I refuse the claim, and direct that judgment be entered for the Council.