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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> RWE Npower Renewables Ltd. v The Welsh Ministers [2011] EWHC 1778 (Admin) (08 July 2011) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2011/1778.html Cite as: [2011] EWHC 1778 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
2 Park Street, Cardiff, CF10 1ET |
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B e f o r e :
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RWE Npower Renewables Ltd |
Claimant |
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- and - |
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The Welsh Ministers |
Defendant |
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- and - |
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City & County of Swansea |
Interested Party |
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Clive Lewis QC (instructed by The Treasury Solicitor) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 23 June 2011
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Crown Copyright ©
Mr Justice Beatson :
Introduction
The grounds
The legislative, policy and factual background
"Had the appeal not been lodged, the Council would have refused permission for three reasons…the main elements of the reasons are firstly, that the EIA [Environmental Impact Assessment] failed to consider properly the recommendation that the maximum height for the turbines in this part of SSA E [Strategic Search Area E] should not exceed 100m, because of the scale and type of land form of the area, and to avoid the worst individual and cumulative landscape and visual effects. This does not allow for the proper balancing of adverse impacts against the strategic objective of achieving renewable energy targets. Secondly, the Council considers the landscape and visual impacts to be unacceptably adverse and to outweigh the strategic energy objectives. Thirdly, the EIA fails to adequately justify the selection of the proposed route for construction traffic or to explain what alternatives have been considered. All three reasons state that the proposal is contrary to [the City and County of Swansea's Unitary Development Plan's] policies R11, EV22 and EV29."
The evidence
The Inspector's report
"86. CCW had raised concerns about the effects of the proposal on the peat bog habitat. In the initial ES surveys significant areas of peat had not been specifically identified. CCW has amended its concern about the importance of peat habitats in recent years. Consquently, the appellants commissioned more detailed surveys which were undertaken as part of the supplementary environmental information dated May 2010…This work identified several areas where turbines and access roads would be sited within areas of peat with a depth greater than 300mm.
87. The concern is that the development could result in changes to the water table with the resulting drying out of the bog. Some effect on habitat is inevitable with a development of this type. Generally turbines, access roads etc have been sited to minimise direct effects on the most sensitive areas. The suggested planning conditions give some flexibility in the detailed citing of the features of the proposals to further reduce any effects. However, CCW suggested a micro-siting condition with a variation of up to 100m: normally the maximum applied in appeal decisions in Wales is 30m.
88. A variation of up to 100m could result in turbines moving closer to other turbines which would then need to be re-sited. The effects could result in turbines moving significantly closer to sensitive receptors such as nearby dwellings. In my view, variations in the position of turbines or access roads to that extent would significantly change the nature of the proposal which had been subject to the ES and EIA. Thus amendments on this scale should not be done by condition. If I considered that the impact on the peat would be unacceptable then the appropriate course would be to recommend the refusal of permission.
…
90. On the site inspection I observed that the location of turbine 4 was almost in the centre of the deepest section of peat. The main access track would pass this turbine and cross most of this central area of peat. Also, turbines 9 and 13 and associated tracks and sections of the access track near turbines 6, 7 and 8 would directly affect the peat in those areas of the site…It appears to me that the layout of turbines and tracks was established before the true extent of the peat deposits was known. Whilst some mitigation, such as 'floating tracks', could reduce the impact of the wind farm on the peat, there would still be a significant degree of impact on the peat deposits. The site is on the extremity of the peat habitat in South Wales and therefore it is of greater importance as a resource. It appears to me that a relatively minor redesign of the layout might remove most, if not all, of the impact on the peat deposits. However, this would result in a different proposal to that described in the ES and would go beyond an amendment that should be considered as part of the current proposal.
91. I note that CCW did not attend the inquiry and their evidence could not be subject to cross-examination. However, I have come to my conclusions on this matter having regard to the appellant's evidence…and from my own observations on site. In my view the risk of an unacceptable degree of harm to the peat habitat is sufficient to justify refusal of this proposal." (emphasis in paragraph 90 added).
"116. Setting aside for the moment the question of the effect of the proposal on the peat habitat, I am satisfied that the benefits of the production of renewable energy from this proposal would outweigh the conflict with the development plan and all the other material considerations. In general terms, a development of this number of turbines up to a maximum height of 127m is acceptable in this location. However, for the reasons given, the effect on the peat habitat cannot be overcome by the imposition of conditions designed to mitigate the harmful effects. For this reason, I conclude that permission should not be granted."
"123…I note that the Somerset Trust, as the present owners of the exchange land, would not exercise their grazing rights in respect of that land over the commons. Given the relatively small area of commons affected, this would result in a net gain of grazing capacity to other existing graziers.
124. However, my understanding is that exchange land must be provided for that which is to be taken out of the common. For most of the stock grazed on the commons the flocks of sheep are hefted flocks…In simple terms, flocks of sheep have an inbred instinct to graze on a restricted area of the common closest to their home farm…Stock therefore does not graze freely over all of the open area of the commons. In addition, the grazing rights on parts of CL 74 are legally restricted to defined areas of the common which relate to the historic hefts. Most farmers do not have rights to drive their stock across other areas of the common outside their own hefts.
125. Given that general background there are two main aspects to consider in respect of the exchange land. The suitability of the land itself, and the convenience of its location."
"138…In the absence of any firm management agreement between the parties concerning how the exchange land should be used, and having regard to the distance between the areas of common CL 68 and 74 affected by the wind farm and the locations of the respective areas of exchange land, the exchange is not suitable to replace that which would be lost from the commons."
The Welsh Minister's decision
"10. The Inspector considered the wide range of issues arising from the proposed development and, setting aside its effect on the peat bog habitat, he was satisfied that the benefits of the production of renewable energy from this proposal would outweigh the conflict with the development plan and all other material considerations. Subject to the following comments the Minister, also setting aside the effect of the proposed development on the peat bog habitat, agrees the Inspector's conclusion on the other issues raised by the proposed development."
Discussion
(1) An application under section 288 of the 1990 Act is not an opportunity for a review of the planning merits of the decision of the Inspector or the Minister (R (Sagar House (Chelsea) Ltd) v First Secretary of State and the Royal Borough of Kensington & Chelsea [2005] EWHC 1251 (Admin) at [76]) and the weight to be attached to a consideration is a matter of planning judgment and thus one for the Minister and not for the court: Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759 at 764 and 780, per Lord Keith and Lord Hoffmann.
(2) Although the onus is on an applicant to lead evidence at an inquiry to support its case, the applicant should have a fair opportunity to deal with an issue that arises if the ultimate decision is based on that issue. So, for example, where the effect of an application to extract gravel on the agricultural use of the land was at issue but there was nothing to alert the applicant that the effect on the supply of moisture compatible with market gardening was at issue and would be the basis for the Inspector's decision, the decision was quashed: Sabey & Co Ltd. v Secretary of State for the Environment (1977) 245 EG 397, 400 per Willis J.
(3) Lord Brown's now classical "broad summary" of the case law on the duty to give reasons in South Bucks DC v Porter (No. 2) [2004] 1 WLR 1953 at [36] is the starting point of any consideration of this issue. His Lordship stated:
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inferences will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact on such future applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
What his Lordship stated about the degree of particularity reflects Lord Bridge's approach in Save Britain's Heritage v No. 1 Poultry Ltd [1991] 1 WLR 153. Lord Bridge also stated (at 170H) that the requirement that reasons be stated "is the analogue in administrative law of the common law's requirement that justice should not only be done, but also be seen to be done".
(4) The court should not subject an Inspector's report or a Minister's decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute, and it is not right to "analyse and pick to pieces each sentence" of the letter: see Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, per Forbes J; Clark Homes Ltd v Secretary of State for the Environment and East Staffordshire DC (1993) 66 P & CR 263 at 271 – 272 per Bingham LJ; and De Rothschild v Secretary of State for Transport [1988] JPL 173 at 176, per Slade LJ.
(5) In considering whether there has been a deficiency of reasons, three situations are to be distinguished. They are: where it was necessary to the decision to resolve an issue of law, where the decision depended on a disputed issue of fact, and where the decision was essentially an exercise of discretion: see Save Britain's Heritage v No. 1 Poultry Ltd, per Lord Bridge. In the first situation, if the reasons do not disclose how the issue of law was resolved, that "will" suffice. In the second, if the reasons do not show how a disputed issue of fact was decided, that "may" suffice. In the third situation "it is for the applicant to satisfy the court that the lacuna in the stated reasons is such as to raise a substantial doubt as to whether the decision was based on relevant grounds and was otherwise free from any flaw in the decision-making process which would afford a ground for quashing the decision": South Bucks DC v Porter (No. 2) at [30] and [31].
(6) Where the decision-maker has to choose between competing expert opinions, as opposed to competing accounts of primary fact, there will generally be a greater need for particularity. In the context of civil litigation Bingham LJ stated in Eckersley v Binney (1988) 18 Con LR 1 at 77 – 78 that "a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons…", and Henry LJ in Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373 that "where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other". The reasoning in Flannery's case was deployed in a planning context in Dunster Properties v FSS [2007] EWCA Civ 236. That case was concerned with the position where an Inspector dealing with a site departs from the views of another Inspector who previously dealt with the same site. Lloyd LJ stated (at [21]) that "although not much by way of reasons may have been called for" on the part of the second Inspector, "it was not sufficient for him, having expressed the exact opposite view from [the first Inspector] on the question of principle, to decline to comment on the inconsistency". Referring to Flannery's case and Save Britain's Heritage v No. 1 Poultry Ltd, he stated (at [22]) that if the reader cannot tell why the second Inspector disagreed with the first Inspector "the salutary safeguard has not performed its intended function".
Conclusion