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||Neutral Citation Number:  EWCA Civ 311
||Case Nos: C1/2011/2044 and C1/2011/2045
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
 EWHC 1778 (Admin)
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PILL
LORD JUSTICE ELIAS
LORD JUSTICE PITCHFORD
|| Welsh Ministers & Anr
||- and -
||RWE NPower Renewables Limited
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
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Mr Clive Lewis QC (instructed by Treasury Solicitor) for the Appellants
Mr Gordon Nardell QC (instructed by Eversheds LLP) for the Respondents
Hearing dates : 14 February 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
LORD JUSTICE PILL :
- This is an appeal against a decision of Beatson J made on 8 July 2011 by which, on the application of RWE NPower Renewables Limited ("the respondents"), he quashed a decision of the Welsh Ministers ("the appellants") made on 21 February 2011 dismissing the respondents' appeal, under section 78 of the Town & Country Planning Act 1990, against the deemed refusal by the City and Council of Swansea of planning permission for a wind farm. In making the decision, the appellants accepted the recommendation of an Inspector appointed by them who conducted a local public inquiry between 20 July and 6 August 2010. Other issues were before the judge which are not raised in the present appeal.
- The judge held that the decision was "affected by a deficiency in the reasons" (the first issue). The judge was also inclined to the view that there has been procedural unfairness (the second issue).
- The respondents had applied for planning permission to install a wind farm at Mynydd Y Gwair for 19 wind turbines with a maximum height of 127m to the blade tip and associated infrastructure including 13.9 kilometres of new access track. The site is on the northern outskirts of Swansea, towards Ammanford, and consists mainly of grazed moorland containing peat deposits.
- When submitting their application for planning permission, the respondents included an Environmental Statement ("ES") which asserted that wind farm infrastructure would be situated away from significant peat cover. It was said that such areas would be avoided. In January 2010, the Countryside Council for Wales ("CCW") produced guidance for wind farm developments affecting peat resources and a draft policy statement. As a result, the respondents commissioned BIOSCAN to produce a more detailed study of peat depth, extent and physical characteristics.
- The judge summarised the results of the survey and commented on it at paragraphs 15 to 18 of his judgment:
"15. The introduction to Bioscan's report states that its more detailed study of peat depth is to inform decisions on the scope and nature of any mitigation that may need to be undertaken. Paragraph 3.2.3 stated that the more detailed survey undertaken delineated some 'limited areas of peat thicker than 30cm (300mm)', 'two patches of peat 300 – 600mm thick', and a greater extent of thick peat at the watershed with the adjoining catchment of the Afon Cathan with 'an extensive area of peat 300 – 600mm' containing 'a core of 600 – 1000mm and two small patches of peat thicker than 1000mm'. The report also stated (paragraph 4.1) that the location proposed for turbine 4 was on an area with a peat deposit with a depth of more than 1000mm, that turbine 5 was located on a peat deposit with a depth of 300 – 600mm, and that micro-siting within a 30 metre allowance would not take these turbines outside these deeper peat deposits.
16. CCW's written submission to the inquiry stated that it was apparent following the submission of the SEI that 'the peat resource is more substantial than the original ES determined and that peat…will be directly affected by turbines and access tracks': see paragraph 4.3.2. At paragraphs 4.3.3 – 4.3.10 CCW made a number of general comments about the importance and sensitivity of peat land habitats and stated wind farm developments should avoid impacts to peat as far as possible. At paragraph 4.3.4 it stated that 'operational decisions about whether particular impacts are tolerable will depend on many factors, including site status, the importance of the peatland features, likely significance of impact, potential benefits offered by Habitat Management Plans and the adequacy of mitigation'. CCW also considered (see paragraph 4.3.5) it critical to develop a site layout which substantially avoided the peat resource in the first place.
17. Paragraph 4.3.7 of CCW's submission states that the peat land resource at the site has additional significance 'given its location close to the bio-geographical limit of the resource in Wales, and the importance of conserving edge of range examples' and (at paragraph 4.3.8) any additional pressure on the relatively small and often fragmented blocks of peat in the South Wales coalfield is likely to increase its vulnerability.
18. At paragraph 4.3.11, CCW stated that, if permission is granted, the allowable distance for micro-siting should be 100 metres, rather than the 30 metres proposed. It stated that it was particularly concerned with turbine 4 and the associated track, and turbines 9 and 13 and their associated tracks. The former is on deep peat of over 1000mm."
The first issue
- The appeal, in my judgment, turns on a short point. It is not submitted that the decision was irrational; the submission is that it was insufficiently reasoned. The Inspector summarised relevant planning policies and considered, in considerable detail, the many issues which arose from the proposal and identified by him as key issues: planning policy, landscape and visual effects, access track, provision of renewable energy, effect on habitat, noise, effect on wildlife, effect on footpaths and recreation, effect on tourism, shadow flicker, effect on scheduled ancient monuments, water supply, effect on farming and other matters. He concluded:
"115. I have already concluded above that this proposal is in conflict with critiera ii and iii of UDP Policy R11. Therefore, having regard to Section 38(6) of the Act, permission should only be granted if material circumstances indicate otherwise. I have weighed all the aspects raised against the proposal and balanced them against the benefits of granting permission. I place significant weight on the WAG and UK Government policies and targets and in particular to those in TAN 8. Also on the facts that this proposal is likely to be seen from most vantage points as part of a single larger wind farm with that at Mynydd y Betws, and the ability to link this site directly into the national grid.
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.
117. If my recommendation is not accepted and the conclusion is reached that this harm is outweighed by the benefits of the proposal, then planning permission should be granted subject to the conditions outlined above."
Apart from the conclusion on the effect on habitat, the report could hardly have been more favourable to the respondents.
- What was crucial, in the Inspector's view, was the harmful effect of the proposed development on the peat bog habitat. It was significant and permission should not be granted. In his view, the problem could not be overcome by the imposition of conditions. His planning judgment, summarised at paragraph 116, is further set out at paragraphs 90 and 91:
"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. The location of the peat deposits in relation to the turbines and tracks are shown on Fig 1 in Doc CD19 (h)(ii). 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 (31). However, I have come to my conclusions on this matter having regard to the appellant's evidence (Doc CD18 (h)) 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."
- In their decision letter of 21 February 2011, the appellants repeated that recommendation and stated at paragraph 20:
". . . the Minister agrees with the Inspector's conclusions and accepts that the development as proposed raises the risk of an unacceptable degree of harm to the peat habitat which is sufficient to justify refusal of this proposal."
- The expression 'risk of harm' is introduced at paragraph 91 and in the appellants' letter and is a sensible acknowledgement that the outcome cannot be predicted with certainty. The planning judgment was that the risk was sufficient to justify the refusal of permission. In Tesco Stores Ltd v Secretary of State for the Environment & Ors  1 WLR 759, it was held that "it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223, Lord Keith of Kinkel with whom Lord Ackner, Lord Browne-Wilkinson and Lord Lloyd of Berwick agreed, at page 764H, and Lord Hoffmann at page 780G).
- No criticism is or can be made of the Inspector's findings of fact on the crucial issue. The essential facts were not in issue. Nor is it disputed that peat bog habitats are valuable and that the appellants are under a duty to protect them. Protection of them is a material planning consideration. No criticism is made of the appellants' summary at paragraphs 16 and 17 of their letter:
"16. The Minister is aware that sections 40 and 42 of the Natural Environment and Rural Communities Act 2008 place a duty on the Welsh Ministers in carrying out their functions to have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biological diversity in accordance with the United National Environmental Programme Convention on Biological Diversity 1992. The Welsh Ministers are required to publish a list of living organisms and types of habitat which in their opinion are of principal importance for this purpose. It is the duty of the listing authority to take, or to promote the taking by others of, such steps as appear to the authority to be reasonably practicable to further the conservation of living organisms and types of habitat included on any list published by the authority.
17. In the Countryside Council for Wales' written representations they have explained that the presence of deep peat under a semi-natural habitat cover of modified bog or of modified bog vegetation on shallower peat, indicates placement with the blanket bog priority habitat type of the UK Biodiversity Action Plan, a habitat also included within the Local Biodiversity Action Plan. Blanket bog is also included on the Welsh Assembly Government's list of habitats with principal importance and it is, therefore, the duty of the Welsh Ministers to conserve the peat habitat."
Submissions and discussion
- The respondents' submission is that the conclusion is insufficiently reasoned having regard to the evidence submitted to the Inspector by Mr Dominic Woodfield and Dr Andy Young who gave evidence for the respondents on ecology and hydrology respectively. Mr Woodfield assessed the significant effects as being "minimal" (paragraph 7.4). Dr Young found that the development would have no significant impact upon the surface water courses and reservoirs draining the site (paragraph 5.2).
- For the Welsh Ministers, Mr Lewis QC submitted that the Inspector was not disagreeing with an expert opinion placed before him. His disagreement with the respondents was about the way in which they were addressing the problem. The Inspector accepted that a wind farm on the appeal site could be permitted. The issue was as to the precise position in which turbines should be located and the Inspector found that a micro-siting condition of up to 100 metres (as compared with the 30 metres normally allowed in Wales) was unacceptable.
- In the Inspector's view, the precise location of wind turbines and access tracks was indeed crucial to the decision but I accept Mr Nardell QC's submission, for the respondents, that there was disagreement between the Inspector and the views expressed by the respondents' experts, or at any rate Mr Woodfield. I accept that having decided to proceed with the proposal rather than relocate wind turbines once it was found that structures had been positioned on deep peat, they attempted, at the Inquiry, to justify the proposal as submitted. Their contention was that the effect on the deep bog habitat was minor or minimal and that planning permission should be given. The Inspector disagreed, concluding that the effect was significant and that permission should be refused. The Welsh Ministers agreed with the Inspector.
- The Inspector found, at paragraph 116, that in general terms, a development of this number of turbines up to a maximum height of 127m is acceptable in this location. What was not acceptable, in the Inspector's view, was the precise siting of individual turbines and access tracks. He was not prepared to permit the development with a micro-siting condition of up to 100m, as had been suggested by CCW if permission was to be granted. Variations of up to 100m (as distinct from the 30m normally permitted) would, in the Inspector's view, significantly change the nature of the proposal and should not be allowed by condition. The consequences of re-siting should first be considered by the local planning authority and be subject to their planning judgment.
- One thing the appellants were not prepared to endorse was the Inspector's opinion, at paragraph 90, that "a relatively minor redesign of the layout might remove most, if not all of the impact on the peat deposit." They stated, at paragraph 19, that consideration of a new proposal "must be for the local planning authority in the first instance". That is an entirely understandable view which does not detract from the Inspector's general conclusion as to the effect of the current proposal on the peat bog habitat.
- The Inspector had before him the written and oral evidence of the respondents' experts and the written submissions of CCW. As the respondents recognised, the central question for the Inspector was whether the particular harm, or risk of harm, associated with the development was sufficient to justify refusal. They accept that the Inspector needed to ascertain the degree of harm the project would cause, taking into account the proposed mitigation measures. Their submission is that this was not a value judgment but a discrete technical issue, outside the Inspector's expertise, which he could only resolve by reference to the expert evidence before him. I agree that expert evidence required careful consideration but I do not agree that the Inspector was bound to accept the opinion of the respondents' experts or that he was disentitled from making his own planning judgment as to whether the effect on the peat bog habitat was significant.
- In his oral submissions, Mr Nardell drew attention to mitigation measures proposed. There was a proposal for floating tracks which would lessen the effect of the access tracks on the peat. The Inspector referred to this measure and was plainly aware of it.
- Other listed proposals were, as Mr Nardell accepted, sensible management measures, including appropriate provision for drainage, regulation of construction traffic and appointment of a project ecologist. These would be expected in any event if working on peat though no doubt greater care would be expected on deep peat. It is not suggested that these measures can eliminate, as distinct from reduce, damage, or at any rate the risk of damage, to the protected habitat. Mr Woodfield stated that they 'are proposed to reduce the likely effects . . . on the limited peat resources found on the site'. The appellants are under a duty to protect the peat habitat and it is their policy to do so. The inspector had the mitigation proposals in mind and said so.
- Mr Nardell drew attention in particular to Mr Woodfield's conclusions at paragraph 7.4 of his report:
"A draft Construction Method Statement has been produced for the project by NRL, which takes account of the up-to-date site survey information in the SEL. This provides additional clarity on the proposed construction methods, and in particular details of site drainage, soil and peat storage and habitat restoration that are proposed to reduce the likely effects of the construction and operation of the wind farm on the limited peat resources found on the site. The magnitude of overall effect on habitat resources after mitigation is assessed not to differ materially from that presented in the ES, and in respect of the project's implications for currently stored carbon and future carbon sequestration connected to the on-site peat resource, the effects are assessed as minimal. This is largely because the site has a very restricted peat resource, a limited proportion of which is affected, and because the associated habitats are highly degraded as a consequence of processes such as overgrazing and atmospheric pollution."
- In his conclusions, the Inspector obviously had in mind the small area involved, both in absolute and percentage terms. He referred to a minor redesign likely to remove the impact on the relevant peat deposits. The geological plan produced by BIOSCAN (and mentioned by the Inspector at paragraph 90) showed clearly and in detail the location of peat deposits of varying depths at Mynydd Y Gwair: greater than 300mm, between 300 and 600mm, between 600m and 1,000mm and greater than 1,000mm. The Inspector regarded, and said he regarded, the location of the site at the extremity of the peat deposit in South Wales as giving it greater importance. The relevance of 'associated habitats', as explained, cannot be crucial to the effect on this peat resource. I find nothing in that conclusion of Mr Woodfield which demands reasoning beyond that provided by the Inspector.
- Reliance is also placed by the respondents on Dr Young's evidence. However, as Pitchford LJ pointed out in the course of argument, his evidence deals with hydrology, water quality and flood risk; it does not deal with ecology, the issue on which the Inspector found against the respondents. At paragraph 1.6, Dr Young stated in terms that he did not cover "issues relating to peat stability or ecology." His conclusion, at paragraph 5.3, was that "the development can proceed without any significant harm to groundwater and surface water resources." On the crucial issue of effect on habitat, his evidence was of no significance.
Conclusions on first issue
- The judge has not based his findings on the inadequacy of reasons upon the detail in the paragraphs cited to us. The judge has stated only a general conclusion, at paragraph 43, that the respondents "did not know why the Inspector rejected the views of Mr Woodfield and Dr Young". He has made little reference to parts of the respondents' evidence, or the detail contained in it, which, in his judgment, should have been dealt with specifically. Having been referred to the detail, I am unable to identify points which required specific treatment the absence of which rendered the Inspector's reasoning inadequate. On the detailed analysis to which the evidence has been subject in this court the need to deal with it in more detail does not arise.
- In South Bucks District Council v Porter  1 WLR 1953, at paragraph 36, Lord Brown of Eaton-under-Heywood considered the status of decision letters:
"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."
- Applying that test, the reasoning of the Inspector cannot legitimately be criticised. The background to the decision must be taken into account. The respondents were well aware of the issues involved. CCW, in its written submissions, had expressed the opinion that "building on peat which is 300mm or more [in depth] should be avoided to retain recoverable blanket bog habitats and to retain peat as a carbon store." The respondents understood the importance of peat bog habitats and had expressed an intention to keep off deep peat. In their evidence at the Inquiry they said they would endeavour to do so. In the event, they failed to keep off deep peat. In the Inspector's view a relatively minor design might remove most if not all the impact.
- The respondents had sited several of the proposed turbines and the main access track where the peat was deepest. In that context, the reasoning was sufficient and elaboration was not required. Nor was explanation of the meaning of the word 'significant', a word often used in the context of planning judgments, required.
- The duty to give reasons was explained by Henry LJ in Flannery v Halifax Estate Agencies  1 All ER 373. He stated, at page 377 to 378:
"We make the following general comments on the duty to give reasons:
(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties - especially the losing party - should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex p. Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.
(2) . . ."
- The respondents lost because the Inspector found that, in his planning judgment, the harmful effect of the precise locations of turbines and access roads on the peat bog habitat was significant. The care with which he approached the issues, and, with respect, the coherence of his general reasoning, can leave no doubt that his mind was concentrated on the issues before him.
- Restating the policies as to peat protection and restating the depths of peat involved was unnecessary. There was nothing more the Inspector could be expected to say to explain why in his judgment the effect of the peat bog habitat was significant and not merely minimal. I repeat that it is not submitted that his opinion was, on the evidence, irrational.
- On the issue of procedural unfairness, Mr Lewis submitted that, in the absence of a respondent's notice, the point cannot be taken. He accepts that there is no prejudice to the appellants in it being taken, adequate notice of the issue having been given. The judge stated, at paragraph 47, that he was inclined to the view that there had been procedural unfairness and, at paragraph 52, that part of the procedure was 'unfortunate'. That was in my view a sufficient indication of his conclusion on a point he did not, on his findings, need to resolve, that a respondent's notice was not necessary. In present circumstances, even if it was necessary, I would have been prepared to treat the skeleton argument as sufficient for the purpose.
- On the merits of the point, the respondents' second submission goes with the first and complains of the Inspector's failure to put his doubts to the witnesses when they gave evidence. The judge stated, at paragraph 52:
"In the circumstances it was also unfortunate that the Inspector failed to alert the claimant's experts to the doubts or concerns he had about their evidence and to give them an opportunity to deal with those doubts before he concluded his report."
- Considering the duties of an Inspector in Castleford Homes Ltd v Secretary of State & RB Windsor & Maidenhead  EWHC Admin 77, Ouseley J stated, at paragraph 53:
"It is obviously helpful if an Inspector does flag up issues which the parties do not appear to have fully appreciated or explored. The point at which a failure to do so, amounts to a breach of the rules of natural justice and becomes unfair, is a question of degree, there being no general requirement for an inspector to reveal any provisional thinking. It involves a judgment being made as to what is fair or unfair in a particular case."
- Ecology was plainly an issue and was identified as such at the pre-inquiry meeting. It was "flagged up", and the respondents were well aware of it. They were aware of the written representations of CCW. Mr Woodfield acknowledged, at 3.8.1 of his statement, the existence of the issue. He referred to:
"The presence of peat deposits that with changes to CCW policy are now considered 'significant' and worthy of protection in their own right."
On the issue whether the impact was significant, the Inspector was not obliged to put his provisional view to Mr Woodfield. He may not have formed a view until he had fully considered the evidence after the inquiry. There is no suggestion that the Inspector led the witness to believe he was in the witness' favour or that he otherwise discouraged him from giving such evidence as the witness wished to give. In his statement for the purpose of these proceedings Mr Trinick QC, the respondents' advocate at the Inquiry, also accepted that:
"the Inspector did raise during the inquiry the prospect of deleting wind turbine 4 (referred to in paragraph 90 of his Report)."
- Of course, if the Inspector had given an indication during the witness' evidence that he accepted Mr Woodfield's opinion or if he impeded the presentation of the respondents' case, the situation would be different but, in present circumstances, he was not required to tell the witnesses that he might not accept their opinions. That was, or should have been, obvious and the respondents had every opportunity to put their case to him and to put on it the best face they could. The Inspector had to make a planning judgment and the respondents knew he had to make a planning judgment. I find no procedural unfairness.
- For the reasons given, I would allow the appeal.
- It is of course open to the respondents, as the Inspector recognised, so to reposition the turbines and access tracks that their impact on the peat bog habitat is reduced and to make a fresh application for planning permission accordingly.
LORD JUSTICE ELIAS :
- I agree that the appeal should succeed, substantially for the reasons given by Pill LJ in his lucid judgment. However, we are differing from the careful and considered judgment of Beatson J, and so I will briefly add some comments of my own.
- There can be no doubt of the reason why the Inspector considered that planning permission should not be granted. They are contained within paragraphs 90 and 91 of the Inspector's decision, which lie at the heart of this appeal. Those paragraphs are set out in the judgment of Pill LJ at paragraph 7. Certain of the turbines and tracks had been sited over the deep peat or in places where the foundations would extend into the deep peat. The Inspector considered that to allow siting these turbines in that way would create "the risk of an unacceptable degree of harm to the peat habitat". The mitigation measures proposed by the respondents, such as the floating track, would reduce the impact, but it would still be significant. Moreover, this is habitat of prime importance which the Welsh Ministers are under a statutory duty to protect pursuant to section 42 of the National Environmental and Rural Communities Act 2006.
- It is not disputed that there was evidence before the Inspector which could justify his conclusion. The Countryside Council for Wales ("CCW") had emphasised the importance of these particular peat resources, especially given that they were close to the bio-geographical limit of the resource in Wales. CCW took the view that any additional pressure on the often fragmented blocks of peat would be likely to increase their vulnerability. They had understood that the respondents were intending to avoid deep peat. That was indeed what the respondents had undertaken to do, although that was before it was appreciated some of the turbines were sited on the deep peat. Once the position was understood, instead of locating the relevant turbines and track off the deep peat, the respondents proposed to keep them in the same place but to adopt mitigating measures to minimise any harm caused to the peat. The respondents did not, however, contend that the harm would be eliminated.
- The respondents' complaint before the judge was in substance that the Inspector - and the Welsh Ministers who adopted the Inspector's conclusions – had not given adequate reasons to explain why he rejected the views of the respondents' experts that the turbines would only cause minimal damage to the peat bog. The judge accepted that submission. He carefully analysed the relevant authorities, including Lord Brown's classic analysis of the reasons duty in South Bucks DC v Porter  1WLR 193, and recognised that the detail to which reasons must condescend will depend on the nature of the issue in dispute. He concluded that the principal important controversial issue in this case was the impact on the deep peat; that this was largely a matter of expert evidence; that there was a conflict of such evidence; and that the inspector was under a duty to give reasons, even if only in summary form, why he favoured one side rather than another. Since he had failed to do that, his decision was flawed.
- The judge identified a lack of clarity in the inspector's reasons as follows (para 45):
"It is not clear from the report whether the disagreement was because the claimant's experts had focused on the effect of the development over the site as a whole, stating (see ) that only 1.5% would be affected, whereas the Inspector focused on the effect at those locations where turbines or track were directly or very nearly directly over deep peat, or whether he agreed with CCW's evidence (see ) that it was critical to develop a site layout "which substantially avoided the peat resource"."
- I respectfully disagree. In my judgment the Inspector was plainly focusing on the deep peat, as Mr Lewis QC, counsel for the Welsh Ministers, contends, and the Inspector's conclusion was that the deep peat should be avoided.
- It was not disputed that to dig foundations of this depth would necessarily impact upon the deep peat, and would cause some harm to that habitat. Indeed, the Inspector was satisfied that there would be a "significant impact" on the deep peat; he said so in terms in paragraph 90. Whether or not he meant by this phrase "significant adverse harm", which is the construction which Pill LJ has placed upon it, there is no doubt in my view that he was at the very least concluding that there was a real risk that there would be significant adverse harm, and that it was both an unacceptable and an unnecessary risk to take. I do not think that he was reaching a concluded view that the respondents' experts were necessarily wrong in their assessment of the effects of the mitigating measures. He was recognising that like all experts expressing a view on a matter of this kind, they may be wrong and that the consequences to this protected habitat if they were was unacceptable. In my view, this much is plain from his report and did not need to be spelt out in any greater detail. The assessment of harm, or the risk of harm, was a matter of judgment for the Inspector, and in making that judgment he had all the relevant factors in mind, including the mitigating measures.
- In short, there was a duty to protect the peat bog habitat, some harm would be caused to it by the proposed development, and a conservative approach to that duty, eschewing any unnecessary risks, was appropriate. The obvious solution, identified by the Inspector, was to avoid the deep peat. The Inspector considered that this could be achieved relatively easily, albeit not by a micro-siting condition of 100 metres as the CCW had recommended, because that would involve too great a change in the nature of the proposed development. But in principle he thought it could readily be achieved with a fresh planning application.
- It is true that the Welsh Ministers in the decision letter chose to make no comment on that particular observation of the Inspector. This was not because they were necessarily disagreeing with that observation but rather because, quite properly, they did not want to be seen to be influencing the determination of any subsequent planning application, which would be for the local planning authority at first instance. But the decision letter recited in terms the Inspector's conclusion that "the development as proposed raises the risk of an unacceptable degree of harm to the peat habitat which is sufficient to justify the refusal of this proposal".
- In my judgment, therefore, the Inspector's report complies with the basic obligation to provide intelligible and adequate reasons as enunciated by Lord Brown in the South Bucks case. Moreover, it also meets the requirement that the reasons should assist an applicant as to how to modify any subsequent application; the respondents know that they will have a greater prospect of success if they can re-site the turbines in a way which avoids interfering with the deep peat.
- As to the alternative ground of procedural unfairness, I agree entirely with the observations of Pill LJ. If the appellants were right, it would mean that in certain circumstances the inspector might have to reopen an inquiry in order to allow the parties to comment on his preliminary conclusions. That would, in my view, over-judicialise the procedure and create additional cost and delay.
- For these reasons, I too would uphold the appeal and restore the decision of the Welsh Ministers.
LORD JUSTICE PITCHFORD :
- I agree with Pill LJ (at paragraph 16 of his judgment) that the planning judgment required an assessment whether the harm or the risk of harm to the peat bog habitat outweighed the merits of the application. As the peat deposits were originally understood by the respondent, the turbines would be sited away from areas of deep peat, an assurance with which CCW had been content, subject to a more detailed survey. Following the respondent's further BIOSCAN survey it was not in dispute that, if the turbines and associated access roads were constructed as proposed, some of them would lie on areas of deep peat. Local measures could be taken to minimise the damage but that some damage to deep peat would be caused could not be in dispute.
- At paragraph 19 of his judgment Pill LJ has extracted paragraph 7.4 of Mr Woodfield's report. Mr Woodfield expressed the opinion that the "overall" effect on habitat resources would not be materially different from that originally anticipated and would be "minimal" because (1) the peat resource on the development site was restricted, (2) the proportion of the peat resource affected would be limited and (3) the associated habitats were already highly degraded. This was, in my view, argument upon the planning merits, not an expression of scientific expertise. It was for the inspector to assess whether, notwithstanding proposed measures to be taken in mitigation, the damage or the risk of damage to the peat bog habitat was unacceptable.
- Having inspected the site with the benefit of the BIOSCAN survey, the Inspector concluded that the risk of significant harm to the peat bog environment outweighed other planning considerations. The Inspector's concern was clearly not the percentage area of the site which was affected by the development but the fact that it was proposed to site some of the turbines and access roads directly on top of and within deposits of deep peat. The inspector did not accept the respondent's argument that the limited effect upon the peat deposits in the site as a whole, and the fact the site was not of itself a rich resource, rendered the development acceptable. For the reasons he expressed, the "significant degree of impact on the peat deposits" which were present was unacceptable. As the Inspector concluded, the obvious way to ensure that deep peat was not damaged was to re-site the turbines. Since it was not appropriate in the circumstances to deal with the need to re-site the turbines by way of condition, the Inspector advised that permission should be refused. I agree, for the reasons given by Pill LJ, that the Inspector's reasons were clear and sufficient, and that the respondent laboured under no unfairness in the process.
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