In May Neil wrote about the Barnwell Manor decision, where the Court of Appeal found the decision-making process to have been vitiated by an inspector failing to address the correct questions regarding impact on setting.
Over the past few weeks there have been further decisions about the approach decision makers must take to the evidence when deciding wind turbine applications/ appeals.
In the first case an inspector concluded, following a site visit, that a proposed turbine in Ashwater, Devon would have a negative effect on the setting of a listed local church because it would be seen in the same views. The Inspector did not appear to have taken account of evidence forming part of the Environmental Report, including a desktop assessment and a ZTV study, which indicated the turbine would not be visible in at least the vast majority of views of the church. On appeal the judge concluded that while a site visit might assist an Inspector in these situations, the evidence in the Environmental Report should at least have been considered. Yet the Inspector’s reasoning indicated that either she had made a mistake of fact or failed to properly inform herself of the technical information. Accordingly, the decision to refuse consent was quashed.
The second example saw a challenge to refusal of consent for a single turbine in Yorkshire; the application had been refused due to the effect on the setting of an 18th century folly 500 metres away. At appeal, the judge upheld the inspector’s decision that there would be harm to the ‘heritage significance’ of the folly even though its windows were bricked up so that the turbine would not be visible from it, and there were no plans afoot for its restoration. That the windows were blocked was found to be relevant to the degree of impact to the folly’s setting but it was also legitimate to take into account that circumstances might change in the future. The judge was also satisfied that the inspector had conducted an adequate balancing exercise, weighing the harms to the setting of the folly against the benefits of the proposal.
A more extreme example arose from a complaint to the Scottish Public Services Ombudsman, challenging the handling, and the consenting, of an application for a 15 turbine wind farm development by East Ayrshire Council. Two grounds of the complaint related to cumulative noise impact alongside existing wind turbine developments. The Council preferred the original evidence of their Environmental Health Service, which indicated that the proposed development could operate within existing cumulative noise limits. This was in spite of objections that the Environmental Statement accompanying the planning application had underestimated the potential cumulative noise, made by (1) a neighbouring wind farm developer; and (2) local residents having consulted an independent noise expert.
Ultimately, the SPSO made a rare finding of maladministration on the part of the Council. There was no obligation to obtain an independent report in the face of conflicting evidence alone. However, when evidence about the inadequacies of the Environmental Statement became apparent (prior to determining the application) it was unreasonable for the Council not to have explored the issues of cumulative impact further, and obtained an independent report to inform planning committee members determining the application.
For both decision makers and those in receipt of decisions, these cases are a timely reminder that while the conclusions reached are important the manner in which they are substantiated is even more so, particularly in the context of competing technical evidence. Otherwise the risk of subsequent legal challenge may be all too real…
On March 17, 2015