Higham, R (On the Application Of) v Venning & Anor

The Claimant challenges the decision of the Defendant council to grant planning permission to the First Interested Party for the erection of a single wind turbine together with associated infrastructure at Furzedown Farm, Lanreath, Looe in Cornwall (“the Site”).

On 15 August 2014 Mr Venning applied to the Council for planning permission for “a single wind turbine of max height 77m to tip, along with associated infrastructure including an access track and electrical housing” at Furzedown Farm. His agents were Clean Earth Energy Ltd. On 24 November 2014 Clean Earth Energy Wind Investments Ltd, the Second Interested Party, (who share common directors and shareholders with the agents) obtained an option over the Site.

Mr Higham lives at Higher Tretharrup, Lanreath. He objected to the application.

On 8 December 2014 the Council’s East Sub-Area Planning Committee (“ the Committee”) considered the application. The application was approved by six votes to five, with the chair not voting.

Mr Richard Harwood QC, for the Claimant, challenges the decision on five grounds:

Exclusion of the Councillor

Councillor Blakeley, in a witness statement dated 21 January 2015, stated that he was an elected member of the Council for UKIP and had been so since May 2013. He sits on the West Sub-Area Planning Committee and has received the relevant training. At paragraphs 4-6 of his witness statement he explains the facts leading up to him being advised that he was unable to vote at the meeting of the Committee on 8 December 2014:

“4.

The UKIP councillor on the East Sub-Area Planning Committee, Stephanie McWilliam, who is the UKIP group leader, was in hospital and she asked me to attend, debate and vote as her substitute at the East Sub-Area Planning Committee on 8 December 2014.

5.

On 5 December 2014 between 2pm and 3pm I telephoned Anita Searby, the relevant officer in the Council and Democracy Department, requesting that my substitution for the Planning East Sub-Area Committee be registered thus allowing my participation at the committee hearing to be held on 8 December 2014. Ms Searby assured me that would be arranged and the Committee would be advised.

6.

I heard no more and therefore on Monday 8 December I made the long drive from Hayle to Liskeard arriving about 45 minutes before the 2pm Committee start. When I got there, I was told that no advice of my substitution consent had been received from Truro. Unsuccessful attempts were made up to 2.01pm by the local officers, including the local democracy officer Emma Coad, to obtain the required confirmation from Truro. I was then advised that I could attend, (sit in), but could not vote on any application.”

On 10 December 2014 Richard Buxton, Solicitors, wrote on behalf of a local resident to Mr Mason, Head of Planning at the Council, raising the issue of Councillor Blakeley not being allowed to take part in the meeting and requesting that the application be referred back to the Committee for reconsideration.

The Council replied on 17 December 2014:

“Your letter suggests that procedural requirements were not followed at the East Sub-Area Planning Committee but the Democratic Services Team have confirmed that Councillor Blakeley was not a member of the East Sub-Area Planning Committee and, although nominated by Councillor McWilliam to attend as her substitute, he was not on the list of approved substitutes and could not, therefore, attend or take part in this capacity. Whilst Councillor Blakeley may not have been made aware of this before making the drive to the Committee meeting, it was procedurally correct not to allow him to participate in the debate.”

The Council’s constitutional arrangements in respect of the role of substitutes are contained within the Council Procedure Rules as amended:

“4.

Appointment of substitute Members of Committees and Sub-Committees

4.1

Limitations

(i)

For any committee which has a mandatory training requirement (such as a committee exercising a planning function) a substitute may only be used where they have undertaken and completed the current approved course of training.

…

4.2

Allocation of substitutes

…

4.2.2

Where a Member of a committee is unable to attend a meeting, they should arrange for a substitute to attend from their Group, save where this is expressly excluded in this Constitution.

4.2.3

The list of substitute Members for the committee shall not exceed the number of seats on the committee allocated to that Group and in any event comprise a maximum of twelve Members. Where a Group has less than four seats allocated to it on the committee that Group may submit a list of not more than four Members. The substitute list shall take effect when received and signed by the Monitoring Officer. Written notification of amendments to any list shall be given from time to time to the Monitoring Officer.

…

4.2.5

The Democratic Services Officer nominated by the Democratic Services Manager to service a committee must be notified either by the member of the committee to be substituted, or the proposed substitute either orally or in writing of the substitution before the commencement of the meeting to which the substitution relates and the substitute must be present at the commencement of the meeting. If either of these requirements is not met, the substitute shall not be permitted to participate in the meeting.

…

4.2.7

It shall be the responsibility of the substitute member to satisfy themselves that they have a sufficient understanding of each item being determined at the meeting at which they are present by reference to the agenda papers, participation in the debate and such other information as may be relevant to the decisions to be made before exercising a vote in relation to each of those items.”

The material facts are agreed. There is no dispute that Councillor Blakeley was not on the list of substitute members for the planning committee authorised by the Council. Mr Harwood submits that the request Councillor Blakeley made to Ms Searby to act as a substitute at the Committee meeting was necessarily a request to officers to do everything to allow that to happen. That being so, Mr Harwood contends, that whilst Councillor Blakeley did not expressly request to be put on the list of substitutes, it can be inferred from the request he made that is was a request to be put on the substitutes list, as well as to allow him to attend the particular meeting. Councillor Blakeley was qualified to be a substitute on the planning committee, and the administrative act of adding his name to the list could have been carried out by an officer under the Monitoring Officer’s authority without any express delegation. Consequently Ms Searby’s confirmation, as a Democratic Services Officer in the Monitoring Officer’s department, on 5 December that he could act as substitute was sufficient to constitute the addition of him to the substitutes’ list. In those circumstances Councillor Blakeley should have been allowed to take part and vote in the Committee meeting.

In the alternative Mr Harwood submits that it was errors of law by the Council’s officers that prevented Councillor Blakeley from taking part in the meeting. If his substitution had not been accepted, he should have been advised that a written request was required for the substitutes’ list to be amended, and the amendment could have been completed by an exchange of e-mails before the Committee meeting commenced on 8 December.

Further, Mr Harwood submits that when it was apparent from the correspondence after the meeting (see para 8 above) that an error had been made by officers which had prevented Councillor Blakeley from taking part in the meeting the officers should have exercised their power to return the application to the Committee; not to do so amounted to a failure to have regard to the material consideration of their earlier errors.

Councillor Blakeley does not say how he would have voted if he had been allowed to take part. However the vote was finely balanced and his inability to take part may have been decisive. He may have voted against the application and his participation in the debate may have affected the views of himself and others.

Mr Harwood observes that the Council do not explain why Ms Searby failed to notify the local Democracy Officer or Councillor Blakeley that he could or could not be a substitute. Mr Harwood suggests that the most plausible explanation is that she failed to follow up on the phone call. This may be so. However I do not accept that the Council Officers committed the errors for which he contends.

Councillor Blakeley was present at the Council meeting on 8 April 2014 when paragraph 4.2.5 of the Council Procedure Rules was amended. By 8 December 2014 he had been a councillor for some 18 months. He must, in my view, be taken to have been aware of the rule requiring a substitute to be on the list of substitutes approved by the Council.

The agenda for the meeting on 8 December 2014 said in terms that:

“Where a Member of a Committee is unable to attend a meeting he may arrange for a substitute to attend from his Party Group, drawn from the list of substitutes approved by the Council. The Democratic Services Officer nominated by the Democratic Services Manager to service a committee must be notified, normally by the Member of a committee to be substituted, orally or in writing of the substitution before the commencement of the meeting. If this requirement is not met, the substitute shall not be permitted to participate in the meeting.”

Above that passage in the Agenda the number and names of substitutes for the various political parties represented on the Council are given. If Councillor Blakeley had read the Agenda he would have been aware that he was not an approved substitute.

I do not accept that the request made by Councillor Blakeley to be substituted for Councillor McWilliam was “necessarily” a request to officers to do everything to allow that to happen. He did not expressly request that he be added to the list of substitutes. In any event rule 4.2.3 provides that “written notification of amendments to any list shall be given… to the Monitoring Officer”. There was no consideration during the course of that conversation as to whether the written notification requirement could be waived. Councillor Blakeley could not be added to the list unless authorised. There was no such authorisation. Although Ms Searby was authorised to sign the list, she had not done so. Further, rule 4.2.3 provides:

“… The substitute list shall take effect when received and signed by the Monitoring Officer.”

The procedure for including a councillor in the list of substitutes is explained by the Council in their grounds of resistance attached to the Acknowledgement of Service in which Ms Meldrum, a senior legal officer with the Council with the conduct of this case, says

“23.

As can be seen from the agenda, there was no named substitute for UKIP. To enable this an Appointment to Committee form would have needed to have been completed by UKIP (either Group Leader or Deputy Group Pleader in their absence) and be authorised by the Monitoring Officer or any officers delegated by him to complete this task…”.

There is no evidence to the contrary.

Councillor Blakeley’s witness statement makes no reference to the substitutes’ list. He does not say that he requested Ms Searby to amend the list of substitutes. She cannot therefore be criticised for not doing so. The Council has 121 councillors and a number of different committees and sub-committees. I agree with the observation of Mr Sancho Brett, who appears for the Council, that the Council’s democratic officers cannot reasonably be expected to know which councillors are on substitute lists upon receiving a telephone call “out of the blue”.

I reject Mr Harwood’s submission that Councillor Blakeley had a legitimate expectation from Ms Searby’s agreement that he could take part in the decision as a representation had been made that he could attend. I agree with Mr John Litton QC, who appears for the Second Interested Party, that the only “promise” made by Ms Searby was an assurance given to Councillor Blakeley that the Committee would be advised of his request to participate as a substitute member. There was no representation made by Ms Searby, let alone a clear and unambiguous one, to Councillor Blakeley that he was either on the list of nominated substitutes or entitled to be substituted as a member of the Committee for Councillor McWilliam.

At the start of his submissions in reply (shortly before the luncheon adjournment on the second day of the hearing) Mr Harwood said he had received instructions that Councillor Blakeley at the material time had been deputy group leader of UKIP on the Council. Over the adjournment Ms Meldrum spoke to Councillor McWilliam who informed her that Councillor Blakeley was deputy group leader of UKIP at the time “but it is unfortunate that they did not nominate a substitute upon the resignation of the previous substitute Councillor Keogh”.

The evidence does not support the contention that his name could have been added to the list of substitutes “by an e-mail exchange in the minutes before the Committee meeting”.

The Council rules are clear. The substitutes list was not amended as required by rule 4.2.3. I do not accept that the Council was at fault or that errors of law were committed by Council officers that prevented Councillor Blakeley from taking part in the meeting. Further, there was no material change in circumstances justifying a redetermination. In the absence of any new material considerations arising after the Committee resolved to grant permission and the issue of the permission, there was no reason for the Council to take the application back to the Committee (see R (Kides) v South Cambridgeshire District Council [2003] 1 P&CR 19).

Misreporting to the Committee

In the recent decision of The Queen (on the application of Smech Properties Ltd) v Runnymede BC [2015] EWHC 823 (Admin) Patterson J helpfully summarised the proper approach to be adopted when reading planning officers’ reports:

“23.

Planning officers’ reports should be read in good faith, as a whole and not legalistically. A decision to grant planning permission will be unlawful if the planning officer’s report to committee significantly misleads members about material matters and, thereafter, is left uncorrected at the meeting of the planning committee before the relevant decision is taken: see R (Zurich Assurance Ltd trading as Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin) at [15]:

‘Each local planning authority delegates its planning functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. With regard to such reports:

(i)

In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.

(ii)

When challenged, such reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole. Consequently:

‘[A]n application for judicial review based on criticisms of the planning officer’s report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken.’ (Oxton Farms, Samuel Smith’s Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106 106, per Judge LJ as he then was).

(iii)

In construing reports, it has to be borne in mind that they are addressed to a ‘knowledgeable readership’, including council members ‘who, by virtue of that membership, may be expected to have a substantial local and background knowledge’ (R v Mendip District Council ex parte Fabre (2000) 80 P&CR 500, per Sullivan J as he then was). That background knowledge includes ‘a working knowledge of the statutory test’ for determination of a planning application (Oxton Farms, per Pill LJ).’

24.

In R v Mendip District Council ex parte Fabre[2000] 80 P&CR 500 Sullivan J (as he then was) held at page 509:

‘Whilst planning officers’ reports should not be equated with inspectors’ decision letters, it is well established that, in construing the latter, it has to be remembered that they are addressed to the parties who will be well aware of the issues that have been raised in the appeal. They are thus addressed to a knowledgeable readership and the adequacy of their reasoning must be considered against that background. That approach applies with particular force to a planning officer’s report to a committee… it is not addressed to the world at large but to council members who, by virtue of that membership, may be expected to have substantial local and background knowledge…’

25.

Similarly, Lady Hale in Morge v Hampshire County Council [2011] 1 WLR 268 at [36] said:

‘Some may think this an unusual and even unsatisfactory situation, but it comes about because in this country planning decisions are taken by democratically elected councillors, responsible to, and sensitive to the concerns of, their local communities. As Lord Hoffmann put it in R (Alconbury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions [2001] UK HL 23, [2003] 2 AC 295, para 69, ‘In a democratic country, decisions about what the general interest requires are made by democratically elected bodies or persons accountable to them’. Democratically elected bodies go about their decision making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves. It is their job, and not the court’s, to weigh the competing public and private interests involved.’

26.

It must also be borne in mind that there is further opportunity for advice and debate at the relevant committee meeting: see R v Selby District Council ex parte Oxton Farms Court of Appeal 18 April 1997 unreported, per Pill LJ.”

Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides:

“In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority, or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.”

The National Planning Policy Framework (“NPPF”) provides:

“131.

In determining planning applications, local planning authorities should take account of:

•

the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation;

…

132.

When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification. Substantial harm to or loss of a grade II listed building, park or garden should be exceptional. Substantial harm to or loss of designated heritage assets of the highest significance, notably scheduled monuments, protected wreck sites, battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites should be wholly exceptional.

…

134.

Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use.”

In East Northamptonshire District Council v Secretary of State for Communities and Local Government [2015] 1 WLR 45 Sullivan LJ said:

“28. It does not follow that if the harm to such heritage assets is found to be less than substantial, the balancing exercise referred to in policies HE 9.4 and HE 10.1 should ignore the over-arching statutory duty imposed by section 66(1), which properly understood… requires considerable weight to be given by decision makers to the desirability of preserving the setting of all listed buildings, including Grade II listed buildings. That general duty applies with particular force if harm would be caused to the setting of a Grade I listed building, a designated heritage asset of the highest significance. If the harm to the setting of a Grade I listed building would be less than substantial that will plainly lessen the strength of the presumption against the grant of planning permission (so that a grant of planning permission would not longer have to be ‘wholly exceptional’), but it does not follow that the ‘strong presumption’ against the grant of planning permission has been entirely removed.

29.

For these reasons, I agree with Lang J’s conclusion that Parliament’s intention in enacting section 66(1) was that decision makers should give ‘considerable importance and weight’ to the desirability of preserving the setting of listed buildings when carrying out the balancing exercise. I also agree with her conclusion that the inspector did not give considerable importance and weight to this factor when carrying out the balancing exercise in this decision. … It is true that the inspector set out the duty in para 17 of the decision letter, but at no stage in the decision letter did he expressly acknowledge the need, if he found that there would be harm to the setting of the many listed buildings, to give considerable weight to the desirability of preserving the setting of those buildings. This is a fatal flaw in the decision…”

On 16 October 2014, in response to notification of the application for planning permission, English Heritage urged the Council to request additional information. Clean Earth provided additional information by letter dated 21 October 2014. English Heritage commented on that material and the heritage issues on 24 October 2014, when Mr Hickman, a Principal Inspector of Historic Buildings and Areas, wrote:

“There is a degree of harm to the setting of Lantreath Church caused by the proposed turbine; both in the context of immediate views of the church from higher ground to the East of the village, and in distant views from St. Veep Church. In the former, the church tower’s visual primacy in the landscape would be challenged by the close proximity and rotating movement of the turbine in a rural landscape in which the church tower was clearly built to be the dominant man-made feature. In the latter, the view of Lantreath Church from St, Veep Church, a designed visual relationship, would suffer adverse effect from the proposed turbine drawing the eye, when Lantreath Church should be the distant focus of view as conceived.

The harm is not substantial, but Lantreath church is a heritage asset of the highest significance, and as NPPF [132] notes, the more important the asset, the greater the weight that should be given to its conservation. We leave it for your authority to weigh the harm that we have identified against the public benefits of the proposal (NPPF 134), but please be aware that our assertion that the harm is less than substantial does not equate to that harm being acceptable.”

Paragraph 38 of the report sets out that text from Mr Hickman’s letter, but omits the concluding words, “but please be aware that our assertion that the harm is less than substantial does not equate to that harm being acceptable”.

There were objections to the impact of the development on the church including, in particular, a detailed objection from Mr & Mrs Dennett. Mr Dennett is a chartered surveyor.

Paragraphs 71-85 of the report consider the historic environment. The church of St. Manark and St. Dunstan at Lanreath is identified as being listed Grade I; it is approximately 2.4km to the northeast. It is noted that “the turbine would not stand within the landscape context of the church but is within the wider landscape setting” (para 78). This section of the report, so far as is material, concludes as follows:

“81.

Most of the designated heritage assets in the wider area are located at such a distance to minimise the impact of the proposed turbine, or else the contribution of setting to overall significance is less important than other factors. The landscape context of many of these buildings and monuments is such that they would be partly or wholly insulated from the effects of the proposed turbine by a combination of local blocking and the topography. However, the presence of a new, modern and visually intrusive vertical element in the landscape would impinge in some way on some of the heritage assets, and have a more pronounced impact on the church of St. Manark and St. Dunstan and Ethy House due to the introduction of a new visual element in a relatively sensitive historic rural environment. With this in mind, the overall impact of the proposed turbine can be assessed as negative/moderate, largely due to the introduction of a new visual element in a relatively sensitive historic rural environment.

82.

English Heritage have commented on this application and they do not consider that the impact on the church would be substantial and therefore do not object to the proposal. The NPPF confirms that where a development proposal would lead to less than substantial harm to the significance of the designated heritage asset, this harm should be weighed against the public benefits of the proposal. This application is for a temporary development that would provide for renewable energy for the equivalent of over 300 households which would provide a valuable contribution to cutting greenhouse gas emissions which is a principle supported by the NPPF. It is therefore considered that the proposal is supported by the NPPF.

…

85.

The application has been assessed against the potential impact on the historic environment including special regard as set out above and it is considered that the likely impact on the historic environment would not justify refusal of this application in this respect. It is therefore considered that on balance the proposal is acceptable in respect of the historic environment. In coming to this view regard has been had to section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990.”

Mr Harwood submits that the omission of the concluding words to English Heritage’s letter of 24 October 2014 (see para 30 above) from the report was serious. English Heritage wished to make it clear that “less than substantial” harm does not equate to acceptable harm or harm that could easily be outweighed, especially as greater weight must be given to Grade I buildings. The impression, he contends, created by the edited response and paragraph 82 of the report that there was not a heritage problem as the harm was not substantial was false.

I reject this submission. There is no requirement that the entirety of English Heritage’s letter of 24 October 2014 be set out in the report word for word. Most of the wording from the letter, and in particular the key extracts, were set out.

Mr Harwood criticises the report in a number of other respects: (1) the last bullet point in paragraph 45, referring to objectors’ criticisms about the impact of the proposal on historic sites, makes no reference to the points made by Mr & Mrs Dennett and the Claimant as to the impact on the church. (2) Paragraph 73 appears to equate “significant” impacts with “substantial” impacts. (3) Paragraph 78 contains no conclusion as to the impact on the church. (4) Paragraph 81 which says “negative/moderate” impact, read together with paragraph 73, suggests no significant impact, which is not the correct test. (5) Paragraph 82 reads: “English Heritage have commented on this application and they do not consider that the impact on the church would be substantial and therefore do not object to the proposal”. Mr Harwood observes, it is not a question of it not being substantial and “therefore” there being no objection. English Heritage did not object, but they did not say why. (6) Paragraph 85 states that “it is considered that the likely impact on the historic environment would not justify refusal of this application in this respect”. It is not, Mr Harwood says, a question of justifying refusal. (7) The conclusion at paragraphs 110-114 contains no specific reference to the impact of the proposal on heritage assets. These errors, Mr Harwood contends, underestimate the test and misled members as to the exercise they had to undertake.

I do not accept these criticisms. In my view a fair reading of the report as a whole (including paragraphs 81, 82 and 85) makes it clear that the Council was well aware of the statutory and policy requirements to give considerable weight to the impact on the setting of the Church, notwithstanding that the harm was considered to be less than substantial by English Heritage. I consider that the report adequately addressed the impact of the development on heritage assets (see, in particular, paragraphs 13, 23-24, and 71-85). The assessed and accepted harm to heritage assets was, as a matter of planning judgment, outweighed by the perceived benefits. I am satisfied that the Council gave the issue of harm considerable weight even though the impact on heritage assets was not considered to be significant.

In addition to the paragraphs in the report which expressly deal with the issue of historic sites, there is reference at paragraph 45, summarising representations made by objectors, to the number of important historic sites within the immediate surrounding area of the turbine. There was a full and detailed debate at the meeting during which, as the minutes record, concern was expressed that the proposal would have an adverse impact on heritage assets. In addition there was a site visit by members of the committee. The Council considered the impact on heritage assets including the church at paragraph 71 of the report. That analysis begins with the reference to the NPPF, and at paragraph 73 there is explicit reference to the statutory duty under section 66. The importance to be attached to harm, even if less than substantial harm, is clear. In my view the omission of the words from the English Heritage letter (see paras 29-30 above) did not materially mislead the Council as to this issue.

The planning application and the subsequent planning permission was for a turbine which was expected to generate electricity for, on average, over 270 Cornish homes (see planning statement at para 4.7).

The Claimant, in his written objection at sub-paragraph (j) states that the calculation of expected benefits of the proposal referred to in paragraph 4.7 of the planning statement is substantial, but how they are calculated is not explained. He continues:

“This is almost certainly hugely overstated (before considering the average decline in turbine efficiency which is routinely ignored). The claim to supply, on average, electricity to over 270 Cornish homes would then also reduce. It seems essential that the planning authorities can ensure that the balance they must arrive at between harm and benefits is not grossly distorted in favour of developers who have traditionally exaggerated the benefits and understated the widely varied damage caused by their pursuit of subsidised profit. Furthermore, the capacity of existing approved wind energy schemes already comfortably exceeds both county and national targets, so the miniscule trickle of costly, random energy from this development to the Grid is effectively valueless.”

Mr Harwood suggests that the quantum of electricity to be generated by the turbine relied upon a 36% capacity factor which was one-third higher than the actual national capacity factors (load factors) of 27% and 50% higher than the Cornish capacity factors of 24% (see Department of Energy and Climate Change “Energy Trends”, December 2013, Table 6.1; and the figures put forward by TTAG, the action group objecting to the erection of a single wind turbine at Tredinnick Farm in R (Waller) v Cornwall Council (CO/5206/2014). The Council did not test whether the electricity generation benefit claimed was correct, and members were unaware that the electricity generation figure was being disputed. Mr Harwood submits that the implausibility of the claimed figure and the dispute about the amount of electricity to be generated were of critical importance to the Council’s justification of the development. If the correct figure was materially lower then the outcome of the application may well have been different, the vote having been so finely balanced. Mr Harwood criticises the report for not referring specifically in paragraph 45 to the point raised by the Claimant. Further, he contends that there was no analysis in the report as to whether the electricity generating figure given by the applicant is accurate and the Committee was not told that there was an issue raised about the capacity factor.

I reject these submissions. I agree with Mr Litton that the Claimant’s objection does not raise an issue which the Council had necessarily to consider and resolve. In sub-paragraph (j) the Claimant says that the decline in mechanical efficiency over time of a turbine may have a bearing on a capacity factor, that is the ability to generate electricity, but there is nothing in that paragraph that indicates that the Claimant is directly challenging the capacity factor put forward by the applicant.

This is to be contrasted with the specific objection made by TTAG, the action group in Waller. Paragraph 19 of the Claimant’s statement of facts and grounds in Waller noted:

“TTAG identified that the Interested Party’s Environmental Statement figure of 1,380 MWh pa required a capacity factor of 33%. This greatly exceeded the UK average of 27% and the South West average of 23.9% [TTAG para 14.8]. They said that a more realistic approach was to take the South West average leading to about 1,000 MWh pa (mathematically 1,046 MWh pa). Of course, in the light of this material, the totally excessive and implausible nature of the committee report’s figure would have become apparent.”

I do not accept that the capacity factor was an important controversial issue in dispute (see South Bucks DC v Porter (No.2) [2004] 1 WLR 1953 at paras 24, 34 and 36, per Lord Brown) in the present case. The Claimant, it appears, was the only one of 100 persons making representations who touched upon this issue. He does not suggest that he was qualified to provide expert evidence on energy generation, nor is he understood to be such an expert. He did not provide any alternative power generation figure, nor did any other objector. He merely asserts that the figure is overstated. In those circumstances there was not in substance any dispute about how much electricity the proposed turbine was likely to generate. The figures put forward were not challenged. There was in the circumstances, in my view, no duty on the Council to delve into the accuracy of the applicant’s figure or to request further expert evidence on that matter.

The Claimant’s contention that the electricity to be generated by the development is implausible is based on evidence which was not before the Council. In any event that evidence provides, in my view, little assistance to the Claimant. The DECC figures are average figures; each turbine will have a different capacity factor.

Although the Waller case concerned a wind turbine and involved the same council and planning officer, it concerned a different wind turbine in a different location and a different sub-area committee with different members determining the application. The proceedings were settled by a consent order, no findings of fact were made.

Mr Harwood accepted that the English Heritage point in Waller is not on all fours with the present case, where the proposal did not meet the requirements of NPPF and English Heritage objected to the proposals as submitted.

Mr Crompton Brown was the planning officer in both cases and wrote both committee reports. It is accepted that by 3 December 2014 he was aware that there was a challenge to the Waller decision. However the TTAG figures were not accepted by the Council, and, in my view, he was under no obligation to bring that material to the attention of the Committee in the present case.

The report at paragraphs 15-17 identifies the relevant international, European and national policy considerations relevant to the consideration of renewable energy developments. The English Heritage guidance “Wind Energy and the Historic Environment” is referred to at paragraph 33. Other relevant information referred to in the report is that

“While a specific target for the provision of renewable energy in Cornwall has not been set for future years, the broad thrust of policy and in both national and local planning policy provides a “direction of travel” to secure, wherever appropriate and practical, opportunities for additional renewable energy developments” (para 29).

The report notes one of the objections to the application being that “Turbines do not produce very much electricity” (para 45). There was no requirement, in my view, in the circumstances for the report to quote or summarise what the Claimant said in the last of the points he made in his written objection (see para 39 above).

Further I accept the submission of Mr Brett that the Committee decision was not based solely on the level of output. The minutes of the decision confirm that “There was an identified need to provide renewable energy initiatives to help bring about a reduction in Carbon emissions”.

I am not persuaded that this ground discloses any error of law on the Council’s part.

By letter dated 20 August 2014 Natural England wrote in response to consultation in relation to the application:

“Protected landscapes

Having reviewed the application Natural England does not wish to comment on this development proposal.

The development however, relates to the Cornwall AONB. We therefore advise you to seek the advice of the AONB Unit. Their knowledge of the location and wider landscape setting of the development should help to confirm whether or not it would impact significantly on the purposes of the designation. They will also be able to advise whether the development accords with the aims and policies set out in the AONB management plan.”

The report at paragraph 40 states:

“In respect of protected landscape, Natural England does not wish to comment on this development proposal. The development however, relates to the Cornwall AONB. We therefore advise you to seek the advice of the AONB Unit.”

The reference to the management plan in the advice from Natural England was omitted.

Paragraph 42 of the report records that the AONB Management Team was notified.

The report did not mention the AONB management plan, adopted by the Council in 2011, at all.

On 16 April 2015, in reply to an e-mail from the Claimant’s solicitors as to their lack of response to the consultation Mr James of the AONB Unit wrote:

“… I confirm that a non-response from the Unit does not automatically mean that we have no objection to a proposal. Principally this is down to our available resources and put simply we do not have the ability to respond to all of the cases that we are consulted upon.”

Natural England’s general purpose includes “conserving and enhancing the landscape” (Natural Environment and Rural Communities Act 2006, s.2(2)(b)). Natural England must, at the request of a public authority, give advice to the authority on any matter relating to Natural England’s general purpose (s.4(1)).

Section 85 of the Countryside and Rights of Way Act 2000 (“the 2000 Act”) provides:

“(1)

In exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty, a relevant authority shall have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty.”

Section 89 of the 2000 Act provides:

“(1)

Every conservation board shall, within two years after the date on which they are established, prepare and publish a plan which formulates their policy for the management of their area of outstanding natural beauty and for the carrying out of their functions in relation to it.”

Policy CL7: Development Near Areas of Outstanding Natural Beauty or Heritage Coast provides:

“In considering proposals for development near the designated Areas of Outstanding Natural Beauty, or the Heritage Coast, attention will be given to the impact it could have on the character and appreciation of such areas. Planning permission will not be granted for development which:

(i)

will be unduly prominent from view points within such areas;

(ii)

will adversely affect the view towards such areas from roads, footpaths, bridleways and other public places;

…”

Policy PD8 states:

“Ensure that any necessary development in or within the setting of the AONB is high quality sustainable development that:

•

is appropriately located, of an appropriate scale and addresses landscape sensitivity and capacity

•

is compatible with the distinctive character of the location …

…

•

promotes the conservation of the historic environment as a whole and in particular those designated heritage assets and their setting; …

…

Particular care will be taken to ensure that no development is permitted in or outside the AONB which would damage its natural beauty, character and special qualities or otherwise prejudice the achievement of the AONB purposes.”

The purpose of the protocol is set out in paragraph 1:

“This protocol sets out the process for effective consultation between Cornwall Council and the Cornwall AONB and Tamar Valley AONB Partnerships to consider planning matters affecting the AONB in Cornwall.”

The Council agreed that as the planning authority it will (para 4.1):

“Take account of AONB management policies and guidance and where appropriate liaise with the AONB Unit/Team on significant planning matters regarding the AONB. Sections 89 and 90 of the Countryside and Rights of Way Act 2000 … created a statutory responsibility for local authorities to produce AONB Management Plans, and Section 85 of the Act sets down a requirement that the statutory purposes of the AONB to conserve and enhance the natural beauty of the landscape be taken into account when coming to decisions or carrying out their activities relating to or affecting land within the AONB. The Local Planning Authority therefore will, in the context of these statutory responsibilities, ensure emerging planning policies and development management decisions conserve and enhance the Cornwall and Tamar Valley AONB.”

Mr Harwood submits that the impact of the scheme on the AONB was a real issue as local residents, Natural England and Councillors at the meeting pointed out. The Council acknowledged that the AONB management plan is a statutory plan prepared by the Council as their policy for the carrying out of their functions in relation to the AONB as part of their duty to have regard to the purpose of preserving and enhancing the natural beauty of the AONB. Yet the report made no reference to the AONB management plan. Mr Harwood submits that this omission amounts to a failure to have regard to a material consideration. Further he submits that the removal of the reference to the management plan in Natural England’s advice in the report was misleading, and that also resulted in a failure to have regard to a material consideration, namely the advice of Natural England that the management plan should be considered.

Mr Harwood suggests that the report fails to say what impact the proposal would have on the AONB beyond asserting that it would not be as bad as the Carwen Farm and Woodford Farm schemes which had been refused (para 63).

Most importantly the AONB management plan was not brought to the Committee’s attention, and so the Committee did not have regard to a material consideration which added to the policy tests that had to be applied by the Council. Local Plan policy CL7 is not, Mr Harwood submits, as strong in protecting the AONB as the AONB management plan PD8. The former is concerned with development being “unduly prominent” in views from the AONB and “adversely affect[ing] the view” from particular places (see para 60 above), whereas PD8 sets a no damage and no prejudice test (see para 61 above). Mr Harwood submits that PD8 is a more restrictive policy for AONB than CD7, and if the Committee had had the terms of PD8 in mind they may have come to a different conclusion as to the impact of the development on the AONB, the decision being so finely balanced.

I do not accept the Claimant’s criticism of the report for not including Natural England’s full representation. In my view the Council was entitled to summarise the representations as it did (see para 53 above).

In any event the summary included Natural England’s advice that the Council seek the advice of the AONB Unit. The Unit was consulted; it chose not to comment; the reason for it so doing is not relevant. The report recorded that the Unit was notified. The absence of comment by the Unit and the words in Natural England’s advice that were omitted in the report were, in my view, of no assistance to the Committee.

Mr Litton refers to the Planning Statement where, he submits, the impact on the AONB and the relevant policies of the AONB Management Plan were properly considered and addressed. Paragraph 4.6 of the Planning Statement is headed “Cornwall Area of Outstanding Natural Beauty Management Plan 2001-2016”, and after referring to the relevant climate change and energy policies relating to AONBs, states:

“This proposal is located outside of the AONB. While it will be visible from some locations within the AONB, it will have a minimal impact on the AONB as a whole. Furthermore, it is located in an area compromised by other agricultural development. This development will have a minimal impact [on] the landscape character of the area. Therefore this proposal is in line with the AONB current guidance on climate change.”

Section 5 of the Planning Statement (“Landscape and Visual Impact”) refers to a landscape and visual impact assessment (LVIA) which was commissioned. The full report is at Appendix D. Paragraph 6.7 in the section headed “Landscape Relevant Designations” states:

“… The majority of the AONB, extending to the south west, west, south and south east is excluded from the ZTVs and would not be influenced by the proposed development.

…

Within the AONB, it will only be from selected open and elevated locations that the proposed wind turbine has the potential to be perceived. … The proposed wind turbine will be barely perceived as a very minor single vertical element in the wider landscape.

…

Overall, although the proposed wind turbine will be perceived from the fringes of the AONB and from selected open and elevated locations, it will not dominate the character or special qualities of the AONB. It will not influence the ‘special qualities’ of the South Coast – Eastern (Par Sands to Looe) section of the AONB…

For the majority of the AONB within the study area, the magnitude of the impact will be no change, the significance of effect will be neutral.

At worst, from selected open and elevated locations in close proximity to the proposed development, away from the sensitive coastal fringes, the magnitude of impact will be low, the significance of effect will be moderate-minor.”

The LVIA included photomontages of the development from the boundary of the AONB.

On the basis of this evidence Mr Litton submits the effect on the AONB is extremely limited and it will not affect the special character of the AONB. Further, there was no evidence before the committee that the development is likely to have any impact on the implementation of the management plan.

I reject the Claimant’s criticism of the report for not referring to the AONB management plan. The development was not within an AONB; it was approximately 2km from the south-eastern section of the Cornwall AONB. Nevertheless the Council took the view that the NPPF required that great weight should be applied to the impact on landscape (see para 24 of the report), and the report also referred to Policy CL7 (at para 27).

I do not accept Mr Harwood’s submission that since the management plan was not mentioned in the Committee report nor at the meeting it cannot be assumed that Committee members had it in mind, let alone had in mind a particular policy in it. As members, they could be expected to have substantial local and background knowledge (see R v Mendip DC ex parte Fabre at para 25 above).

In my view it is clear that the Committee fully took into account the impact of the proposal on the AONB. At paragraphs 50-70 of the report there is consideration of the landscape and visual impacts of the development. The minutes of the meeting record that:

“A full and detailed debate ensued, the main points of which were noted as follows:-

(i)

it was commented that the landscape in this area was unspoilt and that there were no visible manmade structures, it was considered that the vertical structure would be particularly noticeable from the Area of Outstanding Natural Beauty…”

The fact is that the AONB Management Team were consulted and, for whatever reason, did not object. Mr Harwood acknowledges that there is a need to show what difference reference to the management plan would have made. In my view it would have made no difference.

Mr Harwood submits that the omissions and defects in the report identified in grounds 2-4 had the effect of making the judgment decision more in favour of the application in this finely balanced scheme. The end result, Mr Harwood submits, is a report that is erroneous in material respects that led to the approval of the development.

In my view this ground adds nothing to the complaints made in grounds 2-4.

In my judgment the overall effect of the report did not significantly mislead the Committee about material matters. Indeed I am not persuaded that the Committee was misled about any matter.

For the reasons I have given this claim fails.