North Devon District Council, R (on the application of) v Secretary of State for Business, Enterprise & Regulatory Reform & Anor

Planning policy guidance is not legislation and does not automatically bind the decision-maker. An inspector must exercise independent planning judgment while having proper regard to the guidance. An inspector may adopt a recommended methodology where, as a matter of planning judgment, it adequately addresses the policy objective.

Previous appeal decisions must be considered, and reasons should be given for departing from them. Different schemes, policy contexts and benefits may justify a different conclusion. A decision-maker is not required to resolve every evidential dispute or explain every difference line by line where the report, read as a whole, gives adequate reasons.

North Devon District Council sought judicial review of the Secretary of State’s decision to grant consent under the Electricity Act 1989 and direct that planning permission be deemed to be granted under the Town and Country Planning Act 1990 for a 22-turbine wind farm at Fullabrook Down.

The challenge concerned energy policy, landscape assessment, consistency with earlier wind-farm appeal decisions, the use of the ETSU noise methodology under PPS22, and the Secretary of State’s failure to reopen the inquiry or invite further representations after publication of the Salford report on aerodynamic modulation.

1. Application dismissed. Permission to apply for judicial review was granted at the rolled-up hearing, but the substantive claim was dismissed.
2. The Inspector was entitled to conclude that it was unclear whether the national renewable-energy target would be met. That conclusion was rationally open on the evidence. It was unnecessary to resolve the issue because regional and local targets remained relevant and were not ceilings.
3. The landscape assessment was lawful. A holistic assessment was appropriate for a development of this scale, but the detailed geographical structure of the assessment was a matter of planning judgment. The Inspector properly considered earlier decisions and explained the differences by reference to the much larger scheme, its wider visibility, different turbine characteristics, greater benefits and changed policy context. He was not required to analyse every difference between the earlier decisions and his own assessment.
4. PPS22 policy advice that the ETSU methodology should be used was not a legal requirement. The Inspector adopted it because he considered it appropriate and because its methodology inherently addressed the policy objective of avoiding harm to amenity. He recognised that departure could be justified in an appropriate case. He therefore did not unlawfully fetter his discretion, and was not required to resolve every criticism of ETSU once he had rejected the justification for departing from it.
5. The Secretary of State acted reasonably in refusing to reopen the inquiry or invite further representations about aerodynamic modulation. The Salford report was inconclusive, the Government’s policy remained unchanged, and there was no new policy requiring a further opportunity to make representations.
6. The claimant agreed to pay the Secretary of State’s costs assessed at £15,000 and the interested party’s costs assessed at £3,000.