Community Power Ltd., R (on the application of) v National Assembly for Wales & Anor

In a planning challenge, an inspector need not consider separate parts of a proposed development where the conclusion is that the development as a whole causes unacceptable harm and each relevant part is affected by compelling objections. A non-statutory historic landscape register may demonstrate national importance for the purposes of a development plan policy requiring exceptional circumstances. The policy must be applied in the light of evolving national policy. A conservation area’s setting may extend beyond its immediate built surroundings, and distant development may harm its character and appearance where its scale, position and visual effect justify that conclusion. A complaint about the weight of evidence, without an error of law, cannot support a challenge.

The claimant sought under section 288 of the Town and Country Planning Act 1990 to quash the National Assembly for Wales’s dismissal of an appeal concerning refusal of planning permission for eleven wind turbines at Margam Forest. The refusal by Neath Port Talbot County Borough Council was based on landscape and heritage impacts. The Assembly accepted the inspector’s report, including objections relating to Margam Park, scheduled ancient monuments, the Mynydd Margam historic landscape and Llangynwyd Conservation Area.

The claimant alleged errors of law concerning the failure to consider a split decision, the status of the historic landscape register, the assessment of the conservation area, and the treatment of evidence from Cadw and other bodies.

1. The application was dismissed. The Assembly’s decision was not vitiated by any of the alleged errors of law. The respondent was awarded costs of £11,340.
2. The inspector was not required to consider permission for separate groups of turbines as a distinct principal issue. His conclusion identified unacceptable environmental effects affecting all eleven turbines, although some caused greater harm than others. It was therefore unnecessary to repeat the analysis separately for each group in order to reach the same conclusion.
3. The historic landscape register was not a statutory designation. Nevertheless, inclusion of Mynydd Margam in Part 2 of the register demonstrated national significance and could satisfy the reference to national importance in policy EQ7 of the development plan. The policy was properly read in the light of later national policy supporting wind turbines and renewable energy.
4. The inspector’s treatment of Llangynwyd Conservation Area and its setting disclosed no legal error. The setting could extend beyond the open land immediately surrounding the buildings. The turbines’ elevated ridgeline position, scale and rotor movement provided an adequate basis for finding a significant adverse visual effect at a distance of about 2–2.5 km.
5. A challenge framed as being against the weight of evidence did not, without more, establish an error of law. The inspector was entitled to characterise the planning authority’s report as lacking detailed evaluation of the conservation area. Although his description of Cadw’s position was not wholly precise, the evidence showed that he understood the separate roles of Cadw and the Countryside Council for Wales and was not misled. His conclusions were open to him on the evidence.

The judgment describes the following prior decisions:

• Neath Port Talbot County Borough Council: planning permission for eleven wind turbines at Margam Forest was refused on 4 October 2002.
• National Assembly for Wales: an appeal against the refusal was dismissed after the Assembly accepted the inspector’s report dated 5 September 2003.
• High Court (Administrative Court): the application under section 288 of the Town and Country Planning Act 1990 was dismissed, with costs of £11,340.