Before: THE HONOURABLE MRS JUSTICE LANG DBE
Between: Sea & Land Power & Energy Ltd, Claimant – and – 1) Secretary of State for Communities and Local Government and 2) Great Yarmouth Borough Council, Defendants
Mr R. Wald (instructed by Bond Pearce) for the Claimant, Mr D. Forsdick (instructed by the Treasury Solicitor) for the Defendant. The Second Defendant did not appear.
Hearing date: 15 May 2012
1. The Claimant applies under section 288(1)(b) and 5(b) of the Town and Country Planning Act 1990 (“TCPA 1990”) for an order quashing the decision of D. L. Burrows, an Inspector appointed by the First Defendant, dated 23 November 2010, to dismiss the Claimant’s appeal against the refusal of planning permission for a wind farm on land to the east and west of Ormesby Road, Hemsby, Great Yarmouth, Norfolk.
2. On 8 September 2009, the Claimant applied to the Second Defendant for planning permission for the construction and operation of a wind farm consisting of four wind turbine generators, switch house, access tracks, hard standings and underground cabling. The application was accompanied by an Environmental Statement, a Design and Access Statement, a Non-Technical Summary and a Planning Appraisal.
3. Following public consultation, a report to the Development Control Committee recommended that planning permission should be refused on the grounds that it was contrary to policy NNV2, 3 and 7 of the Great Yarmouth Borough Wide Local Plan 2001 and because it could not be concluded it would not have a significant adverse effect on a European site, applying regulation 48(1), The Conservation (Natural Habitats etc) Regulations 1994 as amended. The Royal Society for the Protection of Birds had expressed concern about the potential adverse effect on pink footed geese and marsh harrier in the Broadlands Protection Area. …
5. On 23 December 2009, the Second Defendant’s Development Control Committee refused the application on the following grounds:
- The application site is located in an area identified in the Great Yarmouth Borough Wide Local Plan 2001 as ‘Landscape Important to the Broadland Scene’ (Policy NNV2), ‘Landscape Important to the Coastal Scene’ (Policy NNV3) and ‘Landscape Important to the Setting of Settlements’ (Policy NNV5) and the open countryside (Policy NNV7) where development is only permitted if it will not:
- have a significant adverse impact upon the landscape character and traditional built form of the area,
- destroy or damage features of landscape importance which contribute to the character of the area, will not significantly detract from the open character of the area and is in keeping with the rural character of the area;
The wind turbines because of their scale and height, character and appearance are considered to be contrary to the aims of these policies and would have a detrimental visual impact upon the nearby nationally designated Broads area which has been confirmed by Government as having the highest status of protection in relation to landscape and the rural nature of the area and the setting of the nearby villages.
- The application site lies within the local landscape character area G3: Ormesby and Filby Settled Farmland (Great Yarmouth Landscape Character Assessment April 2008) which is considered by the local planning authority to be an area which has a high sensitivity and is in close proximity to Broads (National Park); the local planning authority in assessing the application and supporting information in the context of Planning Policy 22 and its companion guide along with its own commissioned landscape character assessment, considers that the key characteristics of the landscape are fragile and would be adversely affected by wind turbine development and one which would have an adverse impact upon landscape settings of views in the siting of the wind turbines adjacent to and very near to designated landscapes.
- The application site lies within close proximity to Broadland Special Conservation Area/ Ramsar Site and the local planning authority, having due regard to its obligations under Regulation 48(1) of the Conservation (Natural Habitats etc) Regulations as amended (The Habitats Regulations), cannot conclude on the basis of the information submitted that the integrity of the site would not be compromised – with particular regard to the impact on pink footed geese and marsh harrier qualifying features of the Special Conservation Area – and that the proposal would not have a significant adverse effect on the sire as required by the regulations and Planning Policy Statement 9 and Planning Policy Statement 22 nor can it be concluded that there are no alternative solutions of imperative reasons of overriding public interest including those of a social or economic nature for doing so.”
6. On 18 June 2010, the Claimant appealed against the Second Defendant’s decision. It submitted that the Development Plan comprised the Regional Spatial Strategy (East of England Plan) (“the RSS”), the Norfolk Structure Plan and the Great Yarmouth Borough-Wide Local Plan. The renewable energy policies in the RSS – ENG1 and 2 – required local authorities to support and encourage the supply of energy from decentralised renewable and low carbon sources and stated that a minimum of 17% of the region’s energy should be from renewable sources by 2020. …
23. The Claimant’s first ground of appeal was that the Inspector had erred in law by failing to have due regard to the RSS for the East of England in making her decision, particularly in relation to renewable energy targets. Alternatively she had failed to provide proper reasons for her conclusions in respect of the RSS. …
40. The Claimant submitted that the Inspector failed to apply the correct test for assessing landscape harm contained in the Second Defendant’s landscape policies, namely, local plan policies NNV2, NNV3, NNV5 and NNV7. …
48. The Claimant’s third ground of appeal was that the Inspector failed to give “primacy” to national policy, in circumstances where there was a conflict between local plan policies and national policy. …
61. As I have already explained, as a matter of law it is not correct to assert that the national policy promoting the use of renewable resources in PPS1 paragraph 22 negates the local landscape policies or must be given “primacy” over them. As the First Defendant submits, this is simply a case of policies pulling in different directions: harm to landscape and the benefits of renewable energy. The Inspector was required to have regard to both sets of policies and to undertake a balancing exercise. …
63. In conclusion, I do not consider that the Claimant has succeeded in identifying any error of law in the Inspector’s decision-making process under its third ground of appeal. This was a legitimate exercise of planning judgment by the Inspector with which the Claimant disagrees. That is not a basis for a successful challenge.
64. For the reasons set out above, the claim is dismissed.
Download original document: “High Court Decision 1419, 12 May 2012”
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