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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Hubert v Carmarthenshire County Council [2015] EWHC 2327 (Admin) (05 August 2015)
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Cite as: [2015] EWHC 2327 (Admin), [2016] PTSR 162, [2016] Env LR 10

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Neutral Citation Number: [2015] EWHC 2327 (Admin)
Case No: CO/4768/2014 & CO/859/2015

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
SITTING IN THE SWANSEA CIVIL JUSTICE CENTRE

Royal Courts of Justice
Strand, London, WC2A 2LL
05/08/2015

B e f o r e :

THE HONOURABLE MR JUSTICE CRANSTON
____________________

Between:
HUBERT
Claimant
- and -

CARMARTHENSHIRE COUNTY COUNCIL
Defendant
- and -

GARETH TUCKER
Interested Party

____________________

Mr John Hunter (instructed by Irwin Mitchell Solicitors) for the Claimant
Mrs Harriet Townsend (instructed by Steven Murphy, solicitor to the Council) for the Defendant
Mr Gwydion Hughes (instructed by Eversheds LLP) for the Interested Party

Hearing dates: 14/07/2015

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Cranston:

    Introduction

  1. These are applications for judicial review which challenge the decisions of Carmarthenshire County Council ("the Council") to grant planning permission to the interested party for a single wind turbine at Wern, Pencader, Carmarthenshire ("the site"). The claimant and his wife live about 400 metres from the proposed development. They have lived there for 40 years. Their home is a traditional stone Welsh long cottage with a small holding of five small fields, stream and deciduous woodland. The interested party is one of five shareholders and six employees of a private limited company known as Seren Energy Ltd ("Seren") based in Swansea, which offers development services associated with the renewable energy sector. The Council is the Highway Authority for the county.
  2. The Council granted planning permission on 3 September 2014. The claimant's first judicial review was lodged on 14 October 2014. Gilbart J granted permission to apply for judicial review on grounds 1 and 3 only: [2015] EWHC 741 (Admin). On appeal, Sullivan LJ granted permission on two additional grounds. Meanwhile, on 13 January 2015, the Council had made a further decision to grant permission, whilst still defending the original planning permission. The claimant lodged judicial review proceedings challenging that second decision on 23 February 2015. Patterson J refused permission to apply for judicial review on 1 May 2015. The Liaison Judge for the Administrative Court in Wales, Hickinbottom J, vacated the renewal hearing on this application and on 5 June 2015 relisted it as a two-day rolled-up hearing, alongside the hearing of the first judicial review.
  3. Background

  4. The two planning permissions the Council has granted Seren are for the installation of a wind turbine of up to 67 metres (to blade tip) on a field on the northern slope of a hillside, 1.6 kilometres from Pencader. The field is bounded by hedgerow. The turbine is proposed to be sited some 20 metres from the closest hedgerows. An access track will be created within the site by importing a volume of stone.
  5. As preparation for a planning application in 2012, Seren commissioned a number of habitat, ecological, bird and tree surveys. In April 2013 they received a report from a consultancy SBA entitled "Abnormal Access Route Review". This was because the intended access route for construction of the turbine involves the use of narrow country lanes with high-sided embankments, trees and hedgerows. The report identified 16 so-called points of interest ("POIs 1–16"), including points where modifications to the local highway network will be required in order to accommodate safely the loads involved (e.g., the turbine itself, the generator and other equipment).
  6. As part of the report, SBA conducted a "swept path" analysis to gauge how the loads for construction would occupy the highway at the 16 points of interest. The swept path assessment built in a degree of safety margin to over-predict the required area. SBA recommended that a trial run be undertaken before the delivery of actual components to confirm the findings of its study.
  7. Another consultancy, Wildwood Ecology Ltd ("Wildwood"), provided a "Preliminary Ecological Appraisal" on the ecological implications of the proposed access route in May 2013. It concluded in sections 7 and 8 that if its mitigation and compensation measures were followed, the required modifications to the highway during the construction phase would not have a significant ecological impact.
  8. Seren's first application for planning permission was submitted in May 2013 and formally validated on 19 June 2013. With the application was a "Design and Access Statement", as part of the Additional Planning Information. Part of it dealt with the Traffic Management Plan for delivery of the turbine. It stated that the construction of the turbine was expected to take three months and involve some 113 HGV movements. Of these, nine abnormal loads would need to be delivered over a 3-4 day period. Residents would be notified in advance and the deliveries would be accompanied by a police escort.
  9. At some point in 2013, Seren revised the proposed abnormal access route so as to avoid POI 4 and POI 5 and the road between them. The route was diverted via Llandysul. Article 10 notices under the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 were served on the owners of land in two other locations, POI 6 and POI 14. Mr Duffy, the owner of land at POI 6, agreed for works to be carried out on his land. However, Mr and Mrs Cock of Plwmp Farm at POI 14 said in December 2013 that they would not agree. Earlier that year they had informed Seren that they had mislaid the deeds and plans relating to their land. Consequently, Seren proceeded on the basis of plans of the adopted highway it obtained from the Council in April 2013, which showed that the land required at that point for carrying the construction loads was under the Council's control.
  10. The Council adopted a screening opinion on 6 December 2013. The Council's planning ecologist had been consulted. The screening opinion accepted that the development was Schedule 2 development under the Town and Country Planning Environmental Impact Assessment (England and Wales) Regulations 1999. After referring to its legislative base, and the characteristics of the development, it stated that, on balance, an Environmental Impact Assessment ("EIA") was not required for the proposed turbine. The opinion contained three sections, with headings which reflected the criteria in Schedule 3 of those Regulations. Under the heading "characteristics of development", it stated that many of the environmental impacts
  11. "can be dealt with through assessments within the planning application process and would not justify the need for a full EIA individually unless there are significant justifications on either one set of reasoning (e.g., landscape impact on sensitive areas) or cumulative in terms of a likely significant impact on a number of factors that would benefit from more in-depth investigation under an EIA."
  12. The screening opinion then considered the location of the development. Amongst other things, there was reference to the country lane to the immediate west of the site which, like the majority of the roads within the immediate surrounding area, is narrow with embankments on each side upon which are established hedgerows. Under the third heading, "characteristics of potential impact", the screening opinion stated:
  13. "Given the relatively small number of residential properties within close proximity to the proposed wind turbine it is deemed that any potential impacts on any population's amenities, including any potential visual or noise impact can be adequately assessed within the planning application process subject to providing sufficient detail. The impacts can be considered through the planning application process without the need for EIA for this scale turbine at this location would be the potential visual and landscape impact, shadow flicker/noise on nearby properties and the impact on ecology will also need to be considered. Sufficient detail in this instance would be sufficient to assess the potential impact on these factors.

    The conclusion was as follows:

    In conclusion, and in accordance with the need to conduct a screening opinion the Local Planning Authority considers that an EIA is not required by virtue of there not being anticipated significant environmental impacts as a result of the proposed wind turbine. All possible impacts can be adequately assessed effectively within the planning application process."
  14. The Council's planning committee considered the first application for planning permission at a meeting on 17 December 2013. The committee decided to postpone consideration of the application pending a site visit. In January 2014, Landmark Surveys Wales Ltd conducted a topographical survey for Seren of the area near Mr and Mrs Cock's land. The purpose was to plot the delivery route of the turbine at POI 14 to determine whether the turbine could be delivered to the site without requiring access to their land. It surveyed the land between the tops of the banks on either side of the road. The tops of the banks were considered to be an appropriate extent of highway land as the topographical survey confirmed that the space between the two banks would vary between about six and seven metres, which matched the measurements of the area of the adopted highway set out on the highways plan obtained in April 2013.
  15. The planning committee considered the matter again on 28 August 2014. As with the December 2013 meeting, there was an officer's report. It recommended approval. The report began by setting out the responses to consultation. The head of transport had no objections, nor did Natural Resources, Wales. There was then a description of the proposal. As to the turbine, the report stated that the model in the application was listed as a EWT DW54, although the application had requested that the permission permit an alternative turbine if required. The report explained, however, that the assessment would be based on the turbine details which have been the subject of the information submitted with the application.
  16. "… it is requested [by the developer] that permission allows for the installation of an alternative machine of equal or smaller specifications if market challenges or other circumstances make it a more viable option at the time of construction. It is worth noting that an open ended permission would not be recommended as it would be beneficial for the Local Planning Authority to ensure that any future turbine is appropriate, not only in terms of scale and design but also in terms of other factors."
  17. Regarding access to the site for the construction phase, the report noted the altered route to avoid POI 4 and POI 5. With POI 6 the landowners had been served with a notice. POI 14 also included a minor element of third party owned land and the landowner there had also been served. This meant that all required modification areas were either within the control of the Highway Authority or within the application site and could be controlled by conditions.
  18. The Council accepted before me that this part of the report was wrong given the January 2014 survey, which had reported that works to POI 14 sufficient to accommodate the abnormal loads could be undertaken within the highway boundary. The excuse, which I accept, is that the August 2014 officer's report was recycled from the December 2013 report, without proper checking. The evidence before me, which I also accept, is that the planning committee was told that, although the land at POI 14 was included within the application site by amendment, works on land outside the highway boundary were not needed to deliver the turbine at that point. Members of the planning committee were given a hard copy of the January survey on the site visit bus when visiting the site, and the bus stopped at POI 14 where the situation was explained.
  19. The report had a consideration of the ecological impacts on the access routes, landscape, noise, habitat, trees and access. There was reference to planning policy, in particular to Council Policy UT 6. Under it, the report stated, favourable decisions would be given when proposals either individually or cumulatively would not cause demonstrable harm by virtue of significant adverse impact, but no turbine should cause harm to the amenity of any residents. Demonstrable harm could be defined, the report added, and it referred to a decision of a planning inspector in the so-called Lavender case, a planning appeal in another part of the country, "which may be useful in the determination of this issue". After quoting from that decision, the report advised that it provided useful context, and although it was not a precedent – each case had to be decided on its merits – it gave an indication of how the assessment could be carried out. The report then said:
  20. "Whilst significant adverse visual impacts may be experienced within some views from residential properties and associated amenity space – through the introduction of wind turbine structures into the existing view – which could be considered as resulting in significant adverse impacts to residential amenity, however, it is not considered that the impacts could be defined as being of a significance to result in the properties becoming unattractive or unsatisfactory places in which to live."
  21. The report turned to third party representations. First were those raised by the local councillor, Cllr. L. Davies Evans, that the turbine would impact on residential properties. The report said:
  22. "It is useful to use the Lavender Test (based on an inspector's comments at appeal when determining visual impact) that would state that it is relevant to consider whether the proposed turbine would cause a residence to be an overwhelmingly unpleasant place to live with the proposed turbine being unavoidable. This would suggest that not only would a dwelling need to be in such proximity to be overwhelmingly unpleasant, but that the nearby dwellings would need to find the turbine unavoidable in order to rise to levels of unacceptability. In this instance, whilst it is acknowledged that the proposed turbine would be very unpleasant to those opposing the turbine in the locality, the range of views available to those dwellings would not be solely dominated by the proposed turbine with other views which contribute to their amenity available."
  23. The report set out comments on other representations and concerns raised. The report referred to the concern that the applicant had requested an open permission to erect a turbine up to the height proposed. The report agreed with the concerns raised.
  24. "Alternative wind turbines, even if smaller, may have greater impacts as proven by the previously proposed 330kW wind turbine for this site which would have had greater noise impact than the turbine currently proposed. If granted, this recommendation would propose including a condition to restrict the approval to the turbine submitted and requiring any alterations (such as an alternative model) to require prior written consent of the Local Planning Authority in order to enable assessment regarding the level of impact, which, if unacceptable, would not be permitted."
  25. As to visual amenity impact there was a further reference to the Lavender decision and that having regard to the assessment which had been conducted, the impacts were not considered to be of such significance that the properties would become unattractive or unsatisfactory places in which to live. The report concluded that the application had been assessed against planning policies, of which UT6 was the most relevant, and it was not considered that there was a conflict.
  26. Along with the officer's report was an addendum report. As to the visual amenity of nearby dwellings it stated that the assessments remained unchanged and it was still the case "that there would be no demonstrable, unacceptable impact on the visual impact of Scythlyn or any other of the nearby residential properties."
  27. As foreshadowed earlier, on the day of the planning committee meeting, 28 August 2014, members undertook a site visit on a bus. The committee met formally on its return. There were 18 members in attendance. In addition, Cllr. L. D. Evans, whose objection had been addressed in the report, was present and addressed the meeting. After consideration, the committee resolved to grant planning permission.
  28. Planning permission was issued on 3 September 2014. It was for the "installation of a single wind turbine with a maximum tip height of 67 metres and ancillary works". There were 29 conditions attached to the permission. Conditions 3-8 regulated noise from the turbine. Condition 12 required that a detailed landscape design scheme be approved by the Council prior to commencement of the development, including
  29. "the nature and extent of all necessary direct physical effects along the proposed turbine delivery route."

    Development was to take place in accordance with what had been approved, unless the Council otherwise agreed. Condition 19 addressed shadow flicker. Condition 21 read as follows:

    "The wind turbine hereby approved shall be 40 metres to the centre of the hub and 67 metres to blade tip, unless given the written approval of the local planning authority."

    Conditions 24 and 25 provided for the Council to approve the other matters before commencement.

    "[24] Prior to the commencement of the development an escorted and video recorded trial run for the abnormal loads shall be carried out to the satisfaction of the Local Highway Authority. Thereafter, proposals for any highways improvements that may be required shall be submitted to the written approval of the Local Planning Authority and conducted in accordance with the approved details.
    [25] Prior to the commencement of the development, a Construction Traffic Management Plan shall be submitted to the satisfaction and written approval of the Local Planning Authority."
  30. There were notes and reasons attached to the planning permission. Note 1 provided that the development approved was in accordance with drawings, reports and other materials in the application, "unless amended by any attached conditions". As regards the summary reasons, the Council certified that the proposals conformed to the relevant planning policies and material considerations did not indicate otherwise. In particular, they complied with policy UT6 in that the proposal would not significantly harm the local environment, sites of nature conservation or of historical or archaeological interest, species of ecological value, and that they would safeguard residential amenity highway safety, telecommunication and radio interference.
  31. In October 2014, Seren provided additional planning information. It noted that the proposed access route had changed in 2014 via Llandysul in order to avoid POIs 4 and 5. It said this:
  32. "Access consultants, SBA, carried out a preliminary access survey for delivery of the wind turbine abnormal loads to the site. Details of this survey are provided in Appendix G1. This route identified the need for modifications on land owned by two third party land owners (at POI 5 and POI 6) and the potential need for modifications to the land of a third party land owner (POI 14). These land owners were approached for their consent to the works identified. The land owner at POI6 has given his consent for works and has entered into an agreement with the applicants regarding this work.
    The land owners at POI 5 and POI 14 were not prepared to give consents to the works. Further investigations were therefore undertaken.
    A route was identified through Llandysul which avoided the need for modifications at POI 5. Swept path analysis of this route is given in the separate access document provided as Appendix G2.
    A topographical survey of the road and banks at POI 14 was undertaken. Swept path analysis on this showed that the turbine was deliverable only with modifications to highways land and therefore the third party land owner at this location would not be required – the results of the swept path analysis are also included in Appendix G2."
  33. The second application for planning permission was initially submitted in a form dated 22 October 2014. That form was replaced on 24 October 2014 with a notice that identified the owners of land at POI 14 as within the application site and stated that an Article 10 notice had been served on them.
  34. On 5 November 2014, Seren's ecologist, Wildwood, noted that the proposed route to access the site had been updated to avoid POI 5, and would now access the final part of the route via Llandysul. The Wildwood letter said that Seren had informed it that outside of Llandysul the new section of the delivery route would not require any additional road modifications, with only trimming of roadside vegetation to allow the necessary clearance of the delivery loads. The letter added:
  35. "Therefore to the best of our knowledge the recommendations and conclusions made in Sections 7 and 8 of our report, incorporating the changes as outlined above, remain valid."
  36. On 17 November 2014 the Council's planning ecologist prepared a report. Having carried out a screening exercise taking account of the potential ecological impacts, he considered that an EIA was unnecessary. As to habitat along the access route, he said:
  37. "Habitat along the access route – The preliminary ecological appraisal of the access route states that with the exception of potential bank removal at POI 5 (which is no longer required) it is considered that the cumulative impacts to habitat will not increase beyond a low impact. Full details of access route mitigation following the guidance detailed in Section 7.11 – 7.12 must be provided as a condition of any consent."

    As to bats along the access route, the planning ecologist reported:

    "The tree surveyor states that during the survey he did not identify any features that would be considered suitable habitat for bats. The Preliminary Ecological Appraisal of the access route (5th Nov 2014) states that the trees scheduled for works between POIs 5 and 16 are all classified as having negligible potential to support bat roosts and hence no further survey effort or action is required prior to commencement of works will be necessary. The Alternative Access Route through Llandysul indicates that the proposed access route will avoid the stretch of road between POI 4 and POI 5 therefore potential bat roosts within the trees, between POI 4 and POI 5, will not be affected. No trees between pinch-points 2-3, 3-47 and 4-5 have been specifically identified for removal or management, therefore no further consideration of these trees is considered necessary.
    An advisory note should be added to the application stating that if works are subsequently found to be required to trees with the potential to support bats, then further surveys of trees to determine the presence or absences of bats will be required in order to inform appropriate mitigation measures."
  38. A further screening opinion was adopted on 21 November 2014. It too concluded that an EIA was not required. The claimant has taken no objection to the second screening opinion.
  39. In November 2014, Seren confirmed to the Council that the swept path analysis was an overestimate and gave a margin for error, for example it did not include independent rear steering of delivery vehicles. Further analysis and investigations showed that the space required for delivery was less than shown in the map submitted with the planning applications. Seren also stated that the map of the swept path analysis of POI 14 showed that neither overrun nor oversail would take place over the top of the bank. It added that hauliers could often find solutions for delivery which required less space than swept path analysis, by using specialist plant, for example, using a vehicle where the end of the blade could move from side to side on the end of a trailer in order to negotiate corners.
  40. The second planning application was considered by the Council's planning committee on 13 January 2015 and a decision notice granting planning permission was issued on the same day.
  41. First planning permission: the four grounds

  42. There are 4 grounds of challenge to the Council's first planning permission of 3 September 2014.
  43. (1) Condition 21: the tailpiece

  44. It will be recalled that condition 21 to the grant of planning permission of 3 September 2014 was that the wind turbine approved should be 40 metres to the centre of the hub and 67 metres to blade tip, unless given the written approval of the local planning authority. Mr Hunter contended that the tailpiece to the condition is bad. The officer's report recognised the importance of the turbine's dimensions, but condition 21 as drafted allowed all the safeguards to be sidestepped. Mr Hunter referred to the decision of Ouseley J in R (Midcounties Co-operative Ltd) v. Wyre Forest DC [2009] EWHC 964 (Admin). That was a case where outline planning permission was granted for a new class A1 supermarket. The description of development in the planning permission did not specify the floor space permitted, but it incorporated the specifications of floor space in the application. Condition 6 provided that the food store approved should not exceed the specified maximum "unless otherwise agreed in writing with the Local Planning Authority." Ouseley J held that the tailpiece to condition 6 was unlawful:
  45. "[70] … the tailpiece on its face does enable development to take place which could be very different in scale and impact from that applied for, assessed or permitted and it enables it to be created by means wholly outside any statutory process. It undermines the effect of specifying floor space limits. I do not consider that a public document such as a planning permission should contain such a provision… No question of severing the condition from the planning permission could arise. The floor space limits are of central importance."
  46. For the Council, Mrs Townsend sought to defend condition 21 by invoking Hulme v. Secretary of State for Communities and Local Government [2011] EWCA Civ 638, where at paragraphs 13 and 14 Elias LJ summarised relevant legal principles as regards planning conditions: the conditions must be construed in the context of the decision letter as a whole, benevolently and not narrowly or strictly. Construing the tailpiece to condition 21 along these lines, she contended that in the context of this planning permission as a whole it is clear that the tailpiece would not permit any increase in the height of the wind turbine, since the development permitted by the permission is defined as having "a maximum tip-height of 67 metres". Moreover, there can be no increase in the noise produced above the limits provided for in conditions 3 to 8, nor would an alteration in shadow flicker be permitted in breach of condition 19. In short, when read in context, the tailpiece only permits the Council to approve in writing minor changes, which would not significantly alter the impact of the development.
  47. In my view, the Midcounties principle applies here, given the centrality of condition 21 to the permission's subject matter and the acknowledged significance of the turbine's dimensions to its environmental effects. The words of the tailpiece would permit variations in height so that the scale and impact of the turbine would be different from that for which permission was granted. The breadth of the words means that it cannot be construed as being limited to minor variations. Here, what the condition on its face allows is for variation, up or down, and without any restriction either way, from the dimensions the Council assessed and specified in its first part. Indeed, the permission of 3 September 2014 itself acknowledges that the conditions imposed can have the effect of permitting something different from that applied for because it states expressly that the development being permitted is that defined in the application materials "unless amended by any attached condition".
  48. It would be quite wrong for the planning permission here, having been subject to public debate and democratic decision-making in the Council, to be capable of being side-stepped by use of the tailpiece. The tailpiece must be severed from condition 21.
  49. (2) Condition 24

  50. Condition 24 relates to the highway changes the Council considered necessary to bring the turbine and its components safely to the site in the construction phase. Mr Hunter submits that the condition has, however, been so badly drafted that it is unlawful. Firstly, and most fundamentally he submitted, it is unlawful because it cannot achieve its purpose. In Mr Hunter's submission, that is because it requires works to be carried out on Mr and Mrs Cock's land during the construction phase, which is not within the control of the applicant. Section 70(1) of the Town and Country Planning Act 1990 empowers local planning authorities to grant planning permission subject to conditions, and section 72(1) provides that conditions may be imposed under section 70(1) regulating the development or use of land under control of the applicant. Since the works contemplated by condition 24 are to be on land not within the application site or the control of the applicant, it is ultra vires and thus void: see also Pedgrift v. Oxfordshire County Council (1992) 63 P&CR 246, 252, per Glidewell LJ; see also Welsh Government's guidance on the use of planning conditions (Circular 16/2014), paragraphs 3.25-6, 346-47.
  51. Secondly, it was a positively worded condition and that, on authority, meant it was unlawful: British Airports Authority v. Secretary of State for Scotland [1980] JPL 260, Grampian Regional Council v. City of Aberdeen District Council (1983) 47 P&CR 633. The condition could not be saved by construing it along with conditions 12 and 25, nor as subject to an implied requirement that details of improvements should be submitted, approved and implemented before development commences: Sevenoaks District Council v. First Secretary of State [2004] EWHC 771 (Admin); [2005] 1 P&CR 13, [44] – [45], per Sullivan J. In any event, even if the condition can be read as requiring a trial run to be conducted before development commences, it contains no similar provision in respect of the carrying out of the improvements, which are merely required to be carried out at some point after the trial run.
  52. Thirdly, the condition is flawed because the planning committee was wrongly advised in the passage quoted earlier from the officer's report that a condition could be enforced in respect of third party land, Bradford Metropolitan District Council v. Secretary of State [1986] JPL 292 (CA); Hall & Co Ltd v. Shoreham By Sea Urban District Council [1964] 1 W.L.R. 240.
  53. In my view, Mr Hunter's first and third reasons are based on the faulty premise that highway improvements works for the relatively short period of the construction phase of the turbine contemplated by the condition will involve third party land. Yet the additional planning information, dated October 2014, explained that at POI 14 near the Cocks' land, a topographical survey and swept path analysis indicated that delivery of the abnormal loads to the site was possible passing POI 14 within the curtilage of the highway. As to work on the highways the Council, which is the Highway Authority, accepts the works which will be undertaken under an agreement pursuant to section 278 of the Highways Act 1980.
  54. As to Mr Hunter's second point, it seems to me that it fails if one adopts the principle of a benevolent construction Elias LJ captured in Hulme v. Secretary of State for Communities and Local Government [2011] EWCA Civ 638, [13]-[14]. The words "Prior to the commencement of the development" can be taken to apply to all the requirements referred to in the condition. That is likely what was intended and is the most sensible construction of the condition. That construction is strengthened when condition 24 is read in the context of the permission as a whole and particularly conditions 12 and 25 which impose related obligations, condition 12 as regards an obligation in relation to landscaping and condition 25 as regards a Construction Traffic Management Plan. Mr Hunter submits that condition 25 is bad because it lacks any implementation clause so that even if such details can be required to be submitted and approved under it, there is nothing to say that Seren must carry out the development in accordance with the approved plan. But the claimant has not challenged condition 25 so that submission goes nowhere. The point is that conditions 24 and 25, when read together, indicate that all the requirements specified in condition 24 must be performed prior to the commencement of the development.
  55. (3) Screening opinion

  56. Mr Hunter accepts that, since the second screening opinion of November 2014 is lawful, the court has the discretion not to quash the first planning permission, even if it was flawed: R (on the application of Catt) v. Brighton and Hove City Council [2013] EWHC 977 (Admin), per Lindblom J. He submits, however, that whether or not the permission is quashed for other reasons, since the error in the first screening opinion was only rectified as a direct result of the claimant having brought these proceedings, the court should grant a declaration that it was unlawful. In my view this misconceives the nature of judicial review, which is to ensure lawful decision-making. If, as a result of judicial review proceedings, a decision-maker corrects an error, that is the end of the matter. The only possible relevance of the successful challenge to the previous decision is as to costs.
  57. In any event I am not persuaded that the first screening opinion was unlawful. Mr Hunter makes two criticisms. (His third criticism, he accepted in oral submissions, was an alternative way of advancing the first and second: there is therefore no need for me to address it.) First, he submits, it applied the wrong test. The opinion claims that an EIA was not necessary because the impacts of the development could be "adequately", "effectively" or "sufficiently" assessed as part of the planning application process. That is not the test posed by the EIA Directive 2011/92/EU or the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, which is whether there are likely to be significant effects: Gerber v. Wiltshire Council [2015] EWHC 524; at [73].
  58. The answer to Mr Hunter's first criticism lies in the authorities. These establish that the assessment of likely significant effects in a screening opinion does not involve a detailed assessment of factors relevant to the grant of planning permission nor does it require all considerations to be mentioned. In R (Bateman) v. South Cambridgeshire District Council [2011] EWCA Civ 157, Moore-Bick LJ, with whom Jackson LJ agreed, said
  59. "[20] I think it important to bear in mind the nature of what is involved in giving a screening opinion. It is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all. I think it important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term "screening opinion."
  60. Moreover, in R (Plant) v. Pembrokeshire County Council [2014] EWHC 1040 (Admin) Hickinbottom J reminded us that screening opinions are drafted by planning officers, and like officers' reports cannot be read too scrupulously; they are designed for a knowledgeable readership and must be read accordingly.
  61. Mrs Townsend rightly conceded that the first screening opinion was far from being a model document. However I accept her submission that, reading it in the manner Hickinbottom J indicated in Plant, the correct test was used. That is most evident in the conclusion. The unnecessary embellishment and verbiage does not detract from this. The reference to assessment through the planning process was not, as in Gerber, at the expense of applying the correct test. It was, in a sense, a consequence of the conclusion: there were no significant environmental effects, but such effects as there were could be addressed during the planning process.
  62. Mr Hunter's second point was that in the first screening opinion references to the effects upon the landscape, ecology and so on are all to the turbine itself, not to the effects of the transport of materials upon highway trees, hedgerows and the species potentially present in them. In my view this point fails. First, the decision-maker was obviously aware of the environmental impact arising from the transportation of loads during the construction phase, in the passage quoted earlier in the judgment referring to the various roads with embankments and hedgerows. Secondly, in the words of Moore-Bick LJ in Bateman, a screening opinion did not need to involve "a detailed assessment of factors relevant to the grant of planning permission". That was the case here.
  63. (4) UDP Policy UT 6

  64. The claimant's fourth ground of challenge to the first planning permission concerns the Council's interpretation and application of its development plan, policy UT 6. That reads, in its relevant parts, as follows:
  65. "It is the policy of Carmarthenshire County Council that proposals for wind turbines, wind farms, or groups of wind turbines will be permitted provided the following criteria are met in full:
    …
    vi) No turbine should cause demonstrable harm to the amenity of any residents."

    Mr Hunter contended that the officer's report was flawed in its interpretation and application of this policy and thus the planning committee was misled. What was required was a consideration of the demonstrable harm to the amenity of any residents. Yet, in the passages quoted earlier in the judgment, the officer's report applied a more stringent test by reference to the Lavender appeal decision, advising the committee that the impact would need to be more than overwhelmingly unpleasant, such that nearby dwellings would need to find the turbine unavoidable. In fact, Mr Hunter submitted, matters contained in the report seemed to demonstrate non-compliance with UT6(vi) since it expressly accepted, in connection with the impact on residents, that there would be significant adverse visual impacts, which could be considered as resulting in significant adverse impacts to residential amenity. It also described the overall effect as very unpleasant.

  66. Obviously the planning committee, in granting permission for the turbine, had to interpret policy UT6 correctly: City of Edinburgh Council v. Secretary of State for Scotland [1997] 1 WLR 1447, 1459 D-G per Lord Clyde. Again the Council has not covered itself in glory in the unnecessary embellishment and verbiage introduced in this regard into the officer's report. But there is the well-known principle, already referred to, that reports prepared by planning officers must be read fairly and as a whole, recognising for one that the writer is addressing people who are familiar with their own planning policies. The test in UT6(vi) is straightforward – demonstrable harm to residential amenity. The committee was told that. Admittedly it was told a good deal more, in particular by reference to the Lavender case, but that was introduced by discretionary, not mandatory, language (e.g., "may be useful", "useful to use"). Moreover, visual impact is only one aspect of whether there is demonstrable harm to residential amenity, and the committee was told that the reasons given in the planning permission for approval certify compliance with UT6. The committee reached that judgment after considering the officer's report and its addendum, the site visit the same day as the decision was made, and the oral representations before it. I cannot conclude that the policy was misunderstood or the committee misled.
  67. Second planning permission

  68. There are two challenges to the second planning permission.
  69. (1) Access to Mr and Mrs Cock's land at POI 14

  70. Mr Hunter's point in this regard was that if work is required on Mr and Mrs Cock's land during the construction phase for access of heavy loads, the application for planning permission should have been refused under Welsh Government Circular 16/2014, since they have refused to allow it. He built his case on the uncertainty around ownership of the land at POI 14. He pointed to the service of section 10 notices on Mr and Mrs Cock, not only in 2013 with the first application for planning permission but again with the second. In doing this the Council was asserting that it was serving them on owners of land within the application site. Seren attempted to secure Mr and Mrs Cock's agreement, as with Mr Duffy, indicating that it accepts their ownership of the hedge banks at POI 14. Mr Hunter points to the Council's "Road Verge Maintenance Policy", as evidence that it was assuming that the highway was wider at POI 14 than it actually was:
  71. "3.4 On sections of roads with steep hedgebanks and narrow or no verges it is often necessary to cut full height of the face of hedgebanks on safety grounds, but not the hedge growth itself. It should be noted that the hedgebank and hedge growth is the responsibility of the landowner."
  72. In my judgment this ground fails in light of the evidence. That evidence is by no means conclusive as to the ownership at POI 14, but the best evidence available is that any work at that point for the relatively short period of the construction phase of the turbine will not affect the Cock's land. In 2013, Mr Cock informed Seren that he had mislaid his deeds and plans so it proceeded on the basis of the Council's plans for the highway, inadequate though they may be. Seren then had various surveys undertaken, including in January 2014, which showed that the abnormal loads during the construction phase could negotiate POI 14 within the highway boundary. The planning committee was given that evidence on the day of its decision to grant planning permission in August 2014. The matter was also explained to them when they visited POI 14 on the site visit that day. The position was confirmed in the additional planning information in October 2014.
  73. I cannot see the relevance of the Council's policy on the maintenance of its verges. It has nothing to do with identifying the ownership of those verges, but rather addresses the issue of managing the use of the highway to avoid any potential public nuisance in a county where there is a wide range of types of road. It is not concerned with the powers which the Highway Authority would use to facilitate the delivery of the turbine parts. Nor does the service of the Article 10 notices or the approach to Mr Cock for his agreement take the matter anywhere. No doubt both steps were taken out of an abundance of caution. The best evidence available leads me to conclude that the Cocks' land will not be affected during the construction phase when taking materials to the site.
  74. (2) Failure to consider impact of nature conservation on diverted route

  75. In Mr Hunter's submission, while there was ecological work on the original route for delivery of materials during the construction phase of the turbine, that was not redone when the route was diverted via Llandysul. This was in breach of the statutory duty to conserve biodiversity in section 40(1) of the Natural Environment and Rural Communities Act 2006, Planning Policy Wales and the Council's Local Development Plan. As with any public authority, the Council had a duty to inform itself so as to be satisfied as to the ecological implications of the development: see R (on the application of Hayes) v. Wychavon District Council [2014] EWHC 1987 (Admin), [29]-[31], per Lang J. The claimant has recently produced evidence of what he contends is a real risk that, along a part of the route, there would be significant adverse ecological effects: R (Boggis) v. Natural England [2009] EWCA Civ 1061; [2010] PTSR 725, [37].
  76. In my judgment this ground has not been established. The Llandysul route was decided on in 2013. In other words, this was a ground of challenge open (and not taken) as regards the first judicial review. In any event the planning committee was well aware of this route and indeed passed over it for the purposes of the site visit before granting the first planning permission. They had professional advice on the ecological implications of the access route, as well as responses from bodies such as Natural Resources Wales. After the August 2014 decision there was the additional information from Wildwood and the Council's own ecologist prior to the second permission decision being made. As a matter of professional judgment, both advised, despite the change to the route in 2013, that a further ecological assessment was unnecessary. In light of this there was no duty of inquiry. As to the claimant's recent evidence, it is too late to produce it, well after the Council granted permission the second time in January this year. For very good reasons, the circumstances in which fresh evidence is admissible in judicial review are very limited: R v. Secretary of State for the Environment Ex parte Powis [1981] 1 W.L.R. 584, 595G – 596A, 597 D – F.
  77. Conclusion

  78. I dismiss the claim for judicial review of the Council's first grant of planning permission, except to the extent indicated in relation to the first ground (the tailpiece of condition 21). The grounds challenging the second planning permission are simply not arguable.


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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/2327.html