||Neutral Citation Number:  EWHC 1742 (Admin)
||Case No: CO/9739/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||9 July 2010
B e f o r e :
MR GEORGE BARTLETT QC
(Sitting as a Deputy High Court Judge
|| REBECCA AND BRIAN BARNES
||- and -
||SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
||SOUTH LAKELAND DISTRICT COUNCIL
||H J BANKS & CO LTD
Reuben Taylor (instructed by Richard Buxton) for the Claimants
David Forsdick (instructed by Treasury Solicitor) for the First Defendant
Jeremy Pike (instructed by Hammonds) for the Third Defendant
Hearing dates: 18 and 21 June 2010
HTML VERSION OF JUDGMENT
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MR GEORGE BARTLETT QC:
- This is an application under section 288 of the Town and Country Planning Act 1990 seeking to have quashed a decision by an inspector granting planning permission on appeal for the erection of six wind turbines, control room, anemometer mast and associated access tracks on land to the east of Crosslands Farm, Old Hutton, Kendal, Cumbria. The proposed development is known as the Armistead wind farm. The land is in an area of upland farming on part of a ridge of low, rounded hills between the steep-sided Lune valley to the east and the gentler Kent valley to the west. The Lake District National Park is about 9-10 km to the west, and the Yorkshire Dales National Park is about 5 km to the north east and 7.5 km to the east. The M6 motorway is a short distance to the west. There are scattered farmhouses in the area, and one of the two houses most directly affected by the proposal, Gilsmere Nook, is occupied by the claimants, Mr and Mrs Barnes. The nearest turbine would be just over 600m from their house. Their land, on which they raise sheep and cattle, would at its nearest point be a little over 100m from the turbine.
- Mr and Mrs Barnes were among those objecting to the planning application, which was refused by South Lakeland District Council. At the subsequent appeal inquiry, which was held between 28 April and 8 May 2009, they objected along with a large number of other people, and their objection formed part of the case advanced at the inquiry by the Countryside Protection Consortium of South Lakes (CPCSL), of which they are members.
- In his decision the inspector said that the decision turned on the balanced judgment that had to be made between the benefits of renewable energy production and the adverse effects on the landscape and people in the surrounding locality. He concluded that whilst some significant adverse effects would exist, including the visual impact on Mr and Mrs Barnes's house and another property, overall the effects would be quite limited in extent. He concluded that the balance weighed in favour of the proposal, and, when assessed in the round, that the development was in overall compliance with development plan policies.
- The claimants challenge the decision on six grounds. The first matter that Mr Reuben Taylor advances on their behalf concerns what he submits is the effect of the permission that the inspector granted. It was a permission for six wind turbines and associated development, but there was no condition imposed limiting the size of the turbines. The failure to impose such a condition was, it is said, an error of law because the development was EIA development and the environmental statement that was before the inspector assessed wind turbines of a particular height and output, 60m to the hub and 100m to the blade tip, with a capacity of 2.5MW; and the inspector's conclusion on the acceptability of the development was expressly related to such wind turbines. Mr Taylor submits that if a development consent is framed in a way that would allow a form of development to come forward at a subsequent stage that would enable different significant effects to arise from those that have been assessed in the environmental statement then an error of law arises.
- Mr Taylor identifies the permitted development as that referred to in paragraph 1 of the inspector's decision under the heading "Decision":
"1. I allow the appeal, and grant planning permission for the erection of 6 wind turbines, control room, anemometer mast and associated access tracks on land to the east of Crosslands Farm, Old Hutton, Kendal in accordance with the terms of the application, REF: SL/2008/0318, dated 29 February 2008, and the plans submitted therewith, subject to the conditions set out in the attached schedule."
The conditions subject to which the permission was granted included this:
"3) The erection of the wind turbines shall not commence until the final specification and design of the turbines has been submitted to and approved in writing by the local planning authority. The specification shall include details of the matt pale grey colour of the turbines. Thereafter the turbines shall be erected in accordance with the agreed specification. No symbols or lettering shall be displayed on any of the turbines without the prior written approval of the local planning authority."
There was no other condition limiting the specification and design of the turbines. So, Mr Taylor says, turbines greater in size than those considered in the ES and evaluated by the inspector could be approved by the local planning authority.
- Counsel for the Secretary of State and for the third defendant (the applicant for planning permission), respectively Mr David Forsdick and Mr Jeremy Pike, accept the basic proposition that the grant of planning permission for what is EIA development would be unlawful if it permitted development that could have significant effects that were different from those that had been the subject of assessment in the ES. What they say, however, is that the development permitted is limited in terms to the proposal that was evaluated in the ES, so that there is patently no illegality. They point to paragraph 3 of the Inspector's decision, one of four paragraphs under the heading "Procedural Matters", which said:
"3. The proposal is known as the Armistead wind farm. The application drawing showing a typical wind turbine (Figure 4.3) is not drawn to scale; moreover the blades of the turbine are not drawn in proportion to the tower. Nevertheless, the various visual representations of the proposed development in its landscape setting were broadly accepted at the inquiry to depict accurately the scale and proportion of the turbines, and I have based my consideration primarily on these. A few of the indicative wireframe figures in the appendices to Mrs Horner's evidence for the appellant state that the hub height of the proposed turbines would be 80m and the height to blade tip would be 120m. It was confirmed that this is an error; as stated on the majority of wireframes and other visual representations, the hub height would be 60m and the height to blade tip would be 100m. I have determined the appeal on this basis."
Figure 4.3, to which reference is made in this paragraph, illustrates a wind turbine with the height dimensions referred to by the inspector – 60m to the hub, 100m to blade top. It was a turbine of this size that was the subject of assessment in the ES.
- Where planning permission is granted on appeal, in determining the scope of that permission it is proper to have regard to the terms of the decision as a whole. That this is so is clear from the decision in Smith v Secretary of State for the Environment, Transport and the Regions  Env LR 32, in which the Court of Appeal held that a condition requiring the approval and implementation of a landscaping scheme in a permission for quarrying and landfilling did not permit the local planning authority in granting such approval to go outside the constraints of plans submitted in respect of the ES. The court rejected the contention that the permission was unlawful in that it failed to comply with the landscape mitigation measures set out in the ES. Waller LJ, with whom Black J agreed, said:
"45. If one reads the Decision Letter, and in particular para. 48, and if one has regard to the details of the plans which set the contours of the land and the position of the trees, it seems to me that it simply cannot have been contemplated that by imposing conditions the Inspector was intending the LPA to go outside the constraints placed by the plans. It was not intended that the LPA could in effect reconsider the impact on the environment and vary the conditions imposed by the plans."
- In the present case, therefore, it is not necessary, or appropriate, to focus exclusively on the single sentence that contains the formal grant. There can be no doubt, reading paragraphs 1 and 3 together, that the inspector was granting planning permission for 6 wind turbines of the dimensions shown in Figure 4.3 and stated in that paragraph. It would not be open to the local planning authority when approving the specification and design of the wind turbines to give approval to turbines that differed in their dimensions, other than insignificantly, from those.
- Mr Taylor goes on to submit, separately from his contention on the dimensions of the wind turbine, that in the absence of a condition imposing a requirement as to the output of the turbines it would be open to the developer to install turbines of lesser capacity than that referred to in evidence before the inspector.
- At para 20, having referred to the North West of England Plan – Regional Spatial Strategy to 2021 target of 210 MW from Renewables by 2010, and noting that there would be a significant shortfall, the inspector said:
"20. Each of the 6 wind turbines proposed at Armistead would have a generating capacity of up to 2.5MW, giving a total installed capacity of up to 15MW. The appeal proposal would therefore make an appreciable contribution towards reducing the shortfall against the NWRSS targets..."
- The inspector's overall conclusion was that the benefits of the proposal – "a considerable quantity of electricity from a renewable source" as he put it when making his balancing assessment – outweighed the adverse impact. Mr Taylor says that in failing to impose a condition that would secure the benefit the inspector erred.
- There is nothing in this contention, in my judgment. The inspector did not suggest that his conclusion was dependent on the precise output of the turbines being 2.5 MW, or any other amount; and there was apparently nothing before him to suggest that the developer might wish to install turbines of lesser capacity. In these circumstances he cannot be said to have left out of account any material consideration, and the absence of a capacity or output condition was not an error.
- The challenge on ground 1, therefore, fails.
- Ground 2 is an allegation of procedural unfairness. It is said that certain information material to the claimants' objection at the inquiry and relied on by the inspector in concluding that the development was acceptable was withheld from the claimants. The information was wind speed data, which was relevant to the calculation of the noise that the wind turbines would cause. The inspector dealt with the issue of noise at paragraphs 70 and 71 of his decision. He said:
""70. Some residents who live close to the site fear that development would cause a substantial increase in noise. I heard evidence at the inquiry of noise problems at existing wind farms in other parts of Cumbria and further away and accept that, in certain instances, noise can be a source of significant disturbance. In this case the Council does not believe that noise would be problematic, based on the study in the ES which found that predicted noise levels at surrounding residential properties would generally be below existing background levels. Nevertheless, because predicting noise from wind farms is a far from exact science, a condition is proposed which sets out maximum daytime and night-time noise levels at these nearby properties.
71. I note CPCSL's concerns about the measurement of background noise levels, wind shear and the impact when winds are from the east. Their technical evidence was limited, however, and as it was not given by a noise expert, it could not be fully tested at the inquiry. The Council is satisfied that the ES noise assessment followed the correct procedures, as set out in the ETSU-R-97 guidance, and I attach greater weight to its conclusion. Moreover the particular circumstances of this case – relatively high background noise levels because of the proximity of the M6 motorway, a wind shear coefficient which is below that assumed by the turbine manufacturer, and the turbine on which calculations are based being one of the more noisy models – tend to reinforce rather than undermine the findings of the noise study. Consequently, I consider that the wind turbines are unlikely to cause unacceptable noise at nearby dwellings. Nevertheless, I accept the need for a noise limits condition on a precautionary basis."
- The inspector in these paragraphs addressed the objectors' concerns on noise and rejected them. Among the concerns was wind shear, the variation in wind speeds at different heights above the ground. Wind speed tends to increase with height, and the increase at any particular location is dependent on the topography and on atmospheric conditions and is expressed as a wind shear coefficient. At higher wind speeds the blades turn faster and more noise is generated. In order to examine wind shear and derive a wind shear coefficient, two measurements are required, one at a low level and the other at a higher level. The higher level wind speeds measured by the developers' noise consultants were taken at 40 m and 60 m.
- The information before the inspector, as contained in the ES and evidence for the developers at the inquiry contained an examination of average wind shear levels for the whole year, for evenings in the whole year and for the night time for the whole year; and it compared these three levels of wind shear to the wind shear coefficient used by turbine manufacturers when certifying turbine noise emissions. It was this that the inspector referred to in paragraph 71 when he spoke of "a wind shear coefficient which is below that assumed by the turbine manufacturer". The case for the claimants is that CPCSL requested the wind speed data used by the developers' consultants at both levels in order to examine the wind shear, and that it was refused the data at the higher level on the ground that it was commercially confidential. As a result, it is said, there was no party to the inquiry that could verify that the wind shear calculations presented on behalf of the developers were accurately calculated, and CPSL was prevented from adducing an analysis of the wind shear that would have shown whether the average figures taken by the developers properly reflected the actual conditions and whether there might be noise impacts that would not be apparent when only average wind shear coefficients were considered.
- What happened was that on 5 February Dr M J Hall, who is a microbiological chemist, on behalf of local opposition groups requested from the developers "the raw noise and wind data so that the information in the ES can be fully understood and interpreted", by an acoustic expert, Mr Dick Bowdler, to whom they had sent the ES. Data was provided, but not the data for the 60 metre anemometer mast. In order to enable Mr Bowdler to consider the effect of wind shear on 7 April 2009 Dr Hall requested the 60 m data. On 23 April 2009 (with the inquiry due to start on 28 April) the developers replied that they would be making their noise witness available to the inquiry "on Thursday", but:
"We will not be providing the wind data derived from the mast, this is commercially sensitive information…If CPCSL wish to make a case that this information is essential to the consideration of the case by the inspector it is open to them to advise the inspector accordingly."
- A report by Dr Hall was tabled on day 2 of the inquiry on the basis that it was not a technical document but conveyed local concerns. Under the heading "Issues raised which give local people concern", Dr Hall included this:
"2. No account has been taken of wind shear…Mr Bowdler believes that Banks should have provided data on the wind shear effect as a difference of up to 15dB from predicted levels have been reported (see ES, 6.6.13, page154). This has been provided in Mr Provans appendices but we have been unable to verify it due to the withholding of data."
- As a result of the production of this report the inspector decided to hold a noise session on day 3 of the inquiry. Dr Hall gave evidence, and the developers called Mr Parnell of their noise consultants, Entec UK Ltd. Dr Hall cross-examined Mr Parnell but did not raise with him the question of wind shear and the missing data. According to the inspector, Mr Martin Pike, referring to the "60m data" at paragraph 9 of his witness statement:
"At the inquiry, I recorded Dr Hall as saying: 'Broadly accept that Banks produced data we required. Not challenging ETSU. Accept Provan has supplement with windshear.'
Dr Hall in his witness statement says with reference to this:
"8. The Inspector refers at para 9 to the notes he took at the inquiry, but I cannot agree that the remark 'Broadly accept that Banks produced data we require' properly reflects my evidence. I had made it clear to the Inquiry that Banks had produced some of the data requested by me, but dragged their feet, produced incomplete data, and actually refused to provide the raw 60 metre wind data. This was all made clear in the evidence to the Inquiry. I did of course accept that there was a supplement to Mr Provan's proof of evidence dealing with wind shear. However, I could not agree or disagree with the contents of the supplement because I did not have the raw wind data and so was never in a position to have it checked."
- On the facts, therefore, it is not the case that the claimants through Dr Hall were applying to the inspector for the disclosure of the 60 m data. Appearing as advocate for CPCSL (and also giving evidence on their behalf) was Mr Geoffrey Sinclair, who told the inquiry that he was principal of a consultancy called Environmental Information Services and had given evidence at 76 "wind power and related public inquiries" as well as acting as lay advocate at 32 inquiries. There was no suggestion in his written closing submissions that there had been any application to the inspector for a direction that the data should be disclosed or that the inspector should have directed such disclosure. It does not seem to me in the light of this that the failure to provide the 60 m wind speed data to the inquiry was a procedural irregularity. It was not asserted on the claimants' behalf at the inquiry that such evidence ought to be made available. Their case went no further than Dr Hall's statement that the objectors had been unable to verify Mr Provan's evidence on wind shear. Moreover there was no error on the inspector's part in proceeding on the basis that the wind shear coefficient was "below that assumed by the turbine manufacturer". That was the case for the developer on the basis of technical evidence which was not contested by the council and in respect of which the objectors' reservation was no more than that they had been unable to verify it. The second ground of challenge therefore fails.
- The third ground of challenge relates to the conditions imposed by the inspector in respect of noise. This challenge is mounted despite the fact that the conditions that the inspector imposed were the subject of consideration at the inquiry and were not the subject of criticism on behalf of the claimants. The first of them was as follows:
"21) The Wind Turbine Noise Level shall not exceed the following levels (measured as dB LA90, 10 min) specified in the table below at each noise sensitive location and specified wind speed during the Day Time periods of 1700 to 2300. For any noise sensitive property not specified in the table, the noise levels for the nearest geographical location shall apply."
- The table specified for each of eight properties (one of which was Gilsmere Nook, the claimants' property) noise levels for wind speeds (stated to be "Wind speed (m/s) measured at 10 m height") from 3.0 to 12.0. Condition 22, making provision for the night time period 2300 to 0700 hours, is in similar terms. Conditions 23 to 25 were as follows:
"23) No tonal correction has been applied to the Wind Turbine Noise Level as the final wind turbine has not been selected. Should there be a tonal element which would attribute a penalty when assessed in accordance with the guidance given in ETSU-R-97 pages 80-81, a penalty of 5dB shall be added to the turbine noise emissions. Any tonal correction shall be submitted to and agreed in writing with the local planning authority prior to construction commencing.
24) At the reasonable request of the Council following a complaint to the Council relating to noise emissions from wind turbines, the operator shall measure at its expense the level of noise emissions from the wind turbines (inclusive of existing background noise) using an LA90 index over a minimum of 20 periods each of 10 minutes duration. At least 10 of the periods of measurement shall be made at wind speeds between a wind speed specified by the Council and a wind speed of no more than 2 metres per second above that specified by the Council. At least 10 measurements shall be made at wind speeds between the wind speed specified by the Council and a wind speed not less than 2 metres per second below that specified by the Council. Measures of noise emissions shall be made in consecutive 10-minute periods provided that they fall within the wind speed range defined in this clause. The measurement methodology shall be agreed with the local planning authority and the results shall be submitted to the Council in a specified time period agreed in writing with the local planning authority.
25) Wind speed and direction data shall be measured at a height of 10m throughout the duration of the operation of the wind turbines and provided to the local planning authority at its request to enable the Council to check compliance."
- Mr Taylor makes a number of contentions about the lawfulness of these conditions. He recognises that the test of illegality is Wednesbury unreasonableness. Firstly he says that conditions 21 and 22 are unlawful because they do not sufficiently define the methodology to be used to assess compliance. Specifically he says that they do not define whether measurements should be taken with the wind blowing from the turbine site towards the noise sensitive location or otherwise; the time of day and/or meteorological conditions (eg absence of rain); whether the turbines should be working or working in a normal mode; what type of sound meter should be used; whether the sound meter should be compliant with the relevant British standard or some other standard; whether it should be calibrated and, if so, by what standard; whether a wind shield should be used; where within the noise sensitive location the measurement should be taken; and how background noise should be accounted for. Mr Taylor says that these are all matters that have to be known in order to carry out noise measurements and that they are commonly defined in wind farm planning permissions. Condition 24 could not be relied on, he says, to remedy these deficiencies. In the absence of a complaint it would not be activated, and it would only become effective if the measurement methodology were agreed between the developer and the council.
- I fully accept that the measurement of noise is a highly technical matter and that it must be carried out in accordance with determined parameters. The definition of such parameters is clearly desirable, and I understand that conditions are not infrequently imposed defining the parameters by reference to ETSU. But in determining the validity of these noise conditions I have to bear in mind that they are to be interpreted benevolently, giving effect to them if it is at all possible to do so: see Sullivan J's judgment in Carter Commercial Developments Ltd v Secretary of State for the Environment, Transport and the Regions  EWHC 1200. Conditions 21 and 22 are not, in my judgment, dependent on condition 24. They apply whether or not there has been a complaint that would bring condition 24 into operation and whether or not there is agreement on the methodology in accordance with that condition. They are capable of application through the council, or an inspector on appeal, taking a reasonable view as to what parameters should be applied. If, as seems likely given the common approach of the experts in using ETSU, they were to be applied following the guidance in ETSU, there could be no doubt about the reasonableness of their application. If some other parameters were used it would be for determination, if necessary, whether these were reasonably applied. Conditions 21 and 22 are not, therefore, invalid, in my judgment.
- Mr Taylor also contends that condition 23, dealing with tonal correction, is unlawful. He makes three criticisms. The first is that it fails to define the circumstances in which a tonal correction must be applied. I do not accept this. The condition states in terms that a 5dB tonal correction is to be applied when there is a tonal element which would attribute a penalty when assessed in accordance with the guidance given in ETSU. That it seems to me to be explicit, and Mr Taylor's argument that, because the methodology in pages 73 to 77 of ETSU is not incorporated, the condition is imprecise to the point of unreasonableness is unsustainable.
- The second and third criticisms are that, since the tonal element that requires consideration for the purpose of condition 23 is that of the turbine as designed, there is nothing that would require a tonal correction if some other tonal element arose during its operation, through malfunction or otherwise. The condition is not unreasonable on this account, in my judgment. It was a matter for the inspector's judgment whether the condition should provide for a tonal correction in these circumstances, and I am quite unable to conclude that no reasonable inspector could have failed to include such provision.
- Ground 3 therefore fails. I would only add that it seems to me most unfortunate that after many years of wind farm developments there are no generic noise conditions, contained in national planning guidance, for local planning authorities and inspectors to impose. The result is that resources have to be spent by developers, local planning authorities and objectors in agreeing, or disputing, what the noise conditions should contain; and, on appeal, inspectors have to devote time at the inquiry and afterwards in resolving the matter. And then there can be challenges to the conditions that are imposed, as has happened here. Unsurprisingly appeal decisions come up with different answers, as I was shown, and the scope that there is for inconsistency in this respect is obviously undesirable.
- The fourth ground of challenge is that the inspector failed to have regard to the advice in paragraph 22 of Planning Policy Statement 22: Renewable Energy that the ETSU report should be used to assess and rate noise from wind energy developments. Mr Taylor says that Dr Hall's evidence asserted that background noise levels had not been measured in accordance with the recommendations in ETSU in that the measurement locations were not sufficiently proximate to certain of the properties potentially affected. In his witness statement the inspector had said that he only had a copy of the executive summary of ETSU, and, it is said, he failed to address the question whether the noise monitoring locations were representative.
- In paragraph 71 of his decision the inspector recognised that CPCSL had concerns about the measurement of background noise, but he said that their technical evidence was limited and, not being given by a noise expert, it could not be tested at the inquiry. Thus, noting that the council were satisfied that the ES noise assessment followed the correct procedures as set out in ETSU, he attached greater weight to this conclusion. That was, in my judgment, a manifestly proper approach. In the absence of expert evidence to the contrary he was entitled to base himself on the conclusion that the council, with the benefit of expert advice, had reached.
- The fifth ground of challenge is that the decision failed to take into account a material consideration, the impact on those working in the fields near the turbines. At para 65 the inspector said this:
"65. I acknowledge that the turbines would come fully into view on the skyline as the occupiers of Gilsmere Nook approach the public highway along the access track. The turbines would also be highly prominent when working in the fields that abut the application site, for the nearest turbine to the farm holding (T3) would be a dominant structure about 120m from the field boundary. I accept that such proximity would diminish the quality of the work experience for the occupiers of Gilsmere Nook. However, I believe it is appropriate to draw a distinction between the work environment and that around the home, where a higher threshold of amenity should apply. Because the turbines would not be highly conspicuous from within and immediately adjacent to the dwelling, I do not believe that the development would give rise to an unacceptable loss of amenity for the residents of Gilsmere Nook."
This paragraph appeared in a section of his decision headed "Living conditions of neighbours", and at para 74 he set out his conclusion on this matter, including the following:
"There would be limited visibility of the wind farm from inside Gilsmere Nook and East Ridding, the two nearest properties; although the turbines would appear obtrusive from parts of the curtilages of these dwellings, the overall impact would not be so harmful as to be unacceptable."
The inspector did not refer in his conclusion to the impact on those working in the fields, and Mr Taylor's contention is that, having identified this consideration at paragraph 65, the inspector failed to take it into account in forming his conclusions.
- I do not think that this argument is sustainable. The inspector clearly did have regard to the impact on those working in the fields, although he regarded this as significantly less important than the impact in and around people's homes. He makes that clear in para 65. In para 74 he is expressing succinctly his overall conclusion on the impact on the living conditions of neighbours, and it is not to be expected that he would there rehearse all the individual matters that had gone before. He deals with the principal matters, having previously made clear that he does not regard the impact on workers in the fields as one of those.
- The final ground of challenge relates to safety. Mr Taylor submits that the environmental statement was defective in that it failed to address at all the issue of safety. Under reg 2(1) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 to constitute an environmental statement as defined the ES has to include such of the information referred to in Part 1 of Schedule 4 "as is reasonably required to assess the environmental effects of the development"; para 1 of Schedule 4 identifies "a description of the characteristics of the whole development" and "a description of the main characteristic of the production processes" as matters to be included; and Schedule 3 identifies among the characteristics of the development "the risk of accidents, having regard in particular to substance and technologies used". Given the proximity of the claimants' property to the turbines and the fact that they will be working, and their children would be playing, in the fields within 105m of one turbine, Mr Taylor says that the ES should have included information on safety and that, in its absence, the grant of permission was unlawful.
- I am unable to accept this submission. It does not appear that the issue of safety was raised at the inquiry by any party, other than in relation to horses on the bridleway, and the inspector addressed that matter at para 78 of his decision. Under paragraph 3(2) of the Regulations the requirement was to provide a description of the likely significant effects of the development. There is nothing to suggest that physical hazards to those in nearby fields was a likely significant effect or that information on safety was reasonably required.
- All of the grounds advanced by the claimants therefore fail, and the application is accordingly refused.
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