Judge Windfarm Decision – Renewable Targets do not Automatically Negate Landscape Issues #NPPF

Telegraph

Sea Land and Power Ltd argued that the wind farm near Gt Yarmouth would help to meet [national renewable energy] targets.

In a judgment handed down at the Administrative Court [Judge Laing] backed both the local councils and conservation groups in rejecting the plans.

Both Great Yarmouth Borough Council and a Government Planning Inspector kicked rejected the wind farm, finding that further turbines in the area would threaten its character and natural beauty.

The Royal Society for the Protection of Birds (RSPB) expressed concerns about the potential impact of the wind turbines on important local populations of pink footed geese and marsh harriers, although the charity later withdrew its objections.

Despite recognising the benefits of wind generated power, she said the inspector was entitled to her view that they were, in this case, outweighed by the “material harm” the development would cause to the “character and appearance” of a sensitive area.

“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”

A spokesman for the Campaign to Protect Rural England said t…

“It is important we meet our climate change targets and wind is part of that but there are two environmental goods here – there is cutting carbon and there is the beauty and tranquillity of our landscape. We think it is possible to meet our targets without wrecking the countryside.

The BBC report is here 

Sea & Land Power and Energy Ltd’s wanted to erect four 344ft (105m) turbines near Hemsby, Great Yarmouth.

The borough council refused the plan in 2009, over concerns about the adverse impact on the landscape.

Mrs Justice Lang upheld the decision and said the government’s encouragement of renewable energy did not outweigh local conservation policies.

She rejected Sea & Land’s arguments that the council planning inspector had ignored the government’s target that 17% of the region’s energy needs should be met from renewable sources by 2020.

She said it was a legitimate exercise of planning judgement.

And Daily Mail

Villagers scored a major victory over the wind farm and green lobby yesterday.

A High Court judge ruled their right to preserve their landscape was more important than the Government’s renewable energy targets.

The proposal from Sea & Land Power and Energy had already been rejected by both council and government inspectors.

In what will be seen as a landmark ruling, the judge agreed, saying lower carbon emissions did not take ‘primacy’ over the concerns of the people of Hemsby.

Maria Ellis, a landscape gardener who petitioned against the turbines, said: ‘This has been hanging over us for ages because the company kept proposing it over and over again which just smacked of arrogance.

‘Norfolk is renowned for its open skyline which has inspired stories and poetry and literature. The site is on a hill between two villages and we already have wind turbines to the north, west and east.

‘It is overdevelopment, you can’t cover the hills and dales in turbines.’

Tory MP Brandon Lewis, who lives in Hemsby, said: ‘This decision should really set a precedent for planning officers, inspectors and courts to give weight to the feelings of local people in protecting their environment. It really shows that local people who are organised and feel passionately can have an impact and make a difference.

‘In Great Yarmouth, we have several wind farms nearby, and renewable energy is a huge part of our economy. Wind energy is important but it has to be in the right place and should not have a negative impact on the community or the countryside we love.’

The proposed wind farm was fewer than 300 yards from the edge of the Broads national park and around 800 yards from homes in Hemsby.

Villagers said they feared over-development because there were already three wind farms within three miles.

Ministers have made onshore and offshore turbines a central plank of their plans to plug Britain’s looming energy gap. At least 340 farms are up and running with many more planned.

Suffolk-based Sea & Land had said their four turbines could supply 5,500 homes – or around 14 per cent of the energy needs of the Great Yarmouth borough council area.

But the local planning inspector kicked out the bid, saying: ‘The development would result in material harm to the character and appearance of the area because of its scale and location and the cumulative impacts of other similar developments.’

The inspector said the existing wind farms were ‘visually prominent in this simple, attractive, tranquil landscape with its scattered villages and farmsteads’.

Sea & Land took the case to the High Court in London, insisting that the East of England had failed to meet its energy targets for 2010 and was unlikely to meet the Whitehall target to generate 17 per cent of energy from low-carbon sources by 2020.

Yesterday Mrs Justice Lang backed the inspector, saying Sea & Land’s point about its 2009 proposal was ‘unarguable’.

‘I do not accept that the inspector ought to have disregarded the local landscape policies in the light of the national policies,’ she said.

‘As a matter of law it is not correct to assert that the national policy promoting the use of renewable resources … negates the local landscape policies or must be given primacy over them.

‘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.’

Yesterday Roy Pinnock, an expert in planning law at the firm SNR Denton, said the case may bolster other villagers fighting wind farm projects.

‘It shows planning is all about balancing competing interests, and there will be a complex web of considerations in each case,’ he added.

‘There is a great emphasis on renewables, but this shows no one can claim that any particular outcome is preordained and it’s crucial that developers make an irresistible case for their development.’

Sea & Land can now take the case to the Court of Appeal.

Cally Smith, of the Broads Authority, said the turbines would have had a ‘significant and adverse impact on the protected landscape of the Broads’.

She added: ‘This is not acceptable. There are other places which are better suited to accommodate development such as this.’

But Robert Norris of Renewable UK, the trade body for the wind industry, said the judge was wrong to suggest the case would have a wider impact.

‘It is absolutely vital for any developer to look at the impact on the landscape and wildlife before they can even think about going ahead with a project, but planners also have to consider the need to keep the lights on by generating electricity from sources that are clean and meet our carbon targets.’

Read more: http://www.dailymail.co.uk/news/article-2151874/Day-little-man-blew-wind-turbines-away-Landmark-victory-villagers-fight-threat-countryside.html#ixzz1wKvfuwhR

Read more: http://www.dailymail.co.uk/news/article-2151874/Day-little-man-blew-wind-turbines-away-Landmark-victory-villagers-fight-threat-countryside.html#ixzz1wKvWc9jP

Read more: http://www.dailymail.co.uk/news/article-2151874/Day-little-man-blew-wind-turbines-away-Landmark-victory-villagers-fight-threat-countryside.html#ixzz1wKvOwQeP

Read more: http://www.dailymail.co.uk/news/article-2151874/Day-little-man-blew-wind-turbines-away-Landmark-victory-villagers-fight-threat-countryside.html#ixzz1wKvJ6c7B

And here is the Ballilaw full decision highlighted Sea & Land Power & Energy Ltd v Secretary of State for Communities and Local Government and  Great Yarmouth Borough Council [2012] EWHC 1419 (Admin)

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

It contended that the proposed development was not contrary to local policies NNV2, NNV3 and NNV7, since the landscape and visual impacts were only significant in the immediate vicinity of the site, and so it was not in breach of the Development Plan.

In the alternative, it submitted that other material considerations strongly supported the grant of planning permission, referring in particular to PPS22 on renewable energy and the supplement to PPS1, which advises planning authorities on how to promote and encourage renewable energy generation….

The exercise of planning judgment and the weighing of the various issues are entirely matters for that decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28 and Tesco v Secretary of State for the Environment [1995] 1 W1.R 759, at 780. In the latter case Lord Hoffmann said “If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State”….

The Claimant submits that the Inspector failed to take into account the material issues raised by the RSS because she did not refer to the regional targets. Nor did she refer to the regional deficit in meeting the targets for renewable energy, and the extent to which this development would help to reduce the deficit.

In my judgment, paragraph 26 of the decision letter shows that she did take these issues into account. She identified the contribution which this development would make to the energy needs of the area (5500 homes/14% of the needs in the Council’s area) and she accepted that it “would play an important part locally” in meeting “the Government’s targets for a renewable energy supply”. The phrase “the Government’s targets” includes the specific targets in the RSS, as well as the more general national targets….

The Claimant submits that the Inspector’s reasons were inadequate without a more detailed reference to the deficit and the contribution this development would have made to its reduction. It was argued that this was the central issue on the appeal, and the Claimant did not know why it had lost on this point. Applying the well-established principles set out …above. I consider that the reasons in the decision letter were adequate. I accept that they were not as legalistic or comprehensive as the reasons given in the other examples of decision letters shown to me, but nonetheless they met the minimum standard required by law….

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.

The Claimant submitted that the local landscape policies are inconsistent with PPS1, paragraph 22, because they restrict development. In particular, NNV7 prohibits development in the countryside unless it is in keeping with the rural character of the area. A wind turbine development by its nature is unlikely to be in keeping with the rural character of the area so that if NNV7 were to be applied without the necessary regard to the provisions of PPS22 and the Supplement to PPS1 it would effectively create a bar to wind farm development in rural areas.

In my judgment, the Claimant’s analysis was misconceived, for the reasons given by the First Defendant.

First, the landscape policies are part of the Great Yarmouth Borough-Wide Local Plan. This is part of the statutory development plan as defined by s. 38(3) of the Planning and Compulsory Purchase Act 2004 read with the transitional provisions contained in that Act S. 38 (6) of that Act provides that “[i]f regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise”. This provision gives effect to what is called the plan- led system. There is thus a statutory presumption in favour of the statutory development plan, here that includes the local plan and its policies on landscape. In contrast, national planning policies (including PPS22 and the PPS1 supplement) are merely other material considerations…

Thus the legal position is that the statutory presumption lies in favour of the statutory development plan unless material considerations indicate otherwise. National planning policy is a material consideration. Where national policies change, this can amount to a material consideration of sufficient weight to reach a decision other than in accordance with the statutory development plan but this is not mandatory; rather it involves a balancing exercise for the decision-maker, in this case the Inspector.

Second, the Claimant has misinterpreted the PPS1 supplement. It does not “require” the Inspector to give “primacy” to national policy over local policy. It provides that national policies are a material consideration which “may” supersede the policies in the development plan” (paragraph 11). They will not necessarily do so. This recognises that what is involved is a balancing exercise between different policies…

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.

The judge has simply reinforced existing law.  Far more will be made of this case than it merits.  It will be used by some cllrs, as the MP above implies,  as licence to state local landscape policies outweigh national targets.  Of course those local plan landscape policies need to be in place.  This will be to entirely miss the judges point that the two issues should be weighed and balanced.  If the impact on the landscape is high and gain for carbon free energy low a refusal will be safely upheld, as will an approval where the reverse is the case.

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About andrew lainton

International Urban Planner

Posted on May 30, 2012, in Energy, National Planning Policy Framework, urban planning. Bookmark the permalink. 2 Comments.

  1. David Ramsbotham

    At last common sense prevails.

    Are you disillusioned by rising electricity prices, over dependence on the “green” dream [especially uneconomical and inefficient wind farms] and the destruction of our countryside then please register your objection to the Government on

    http://epetitions.direct.gov.uk/petitions/22958

    or by GOOGLING “E-PETITION 22958″ and following the link.

  2. Norfolk Dumpling

    As usual, this decision just accepts the technological claims of SLP as copied by a technically challenged Planning Inspector.
    1. An assumption that renewable energy is necessary. This has NEVER been proven.
    2. Para.59. “acknowledged benefits”.
    Planning law does not allow for the assertion and public publication of acknowledged scientific and technological DISbenefits of renewable energy schemes, of which there are several of great weight.
    3. Para.59. The decision accepts, without argument, “the need for renewable energy”, but this has NEVER been proven.
    4. Para.34. As comparison to “30% generation, read DUKES2011, Table 7.4 which shows 21.7% only for 2010. That reduces the possible EQUIVALENT homes to 4045, some 26.5% LESS than 5,500.
    5. Para.34. There is an assumption that the wind turbines will reduce “CO2, sulphur dioxide and nitrogen oxides”. This includes NO professional audit of the ADDITIONAL emissions produced by the inefficiently fuel burning 24-365 backup, 100% wind turbine Installed Capacity, fossil fuel gas generators.
    Would that the Planning Inspectorate, Planning Inspectors and/or the judiciary sought the technical expertise of technical experts such as Chartered Engineers to challenge the claims.

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