Tegni Cymru Cyf v The Welsh Ministers & Anor

Guidance on acceptable wind-farm noise does not impose an absolute limit or guarantee planning permission whenever its indicative levels are met. A planning decision-maker may assess whether noise is unacceptable by considering its duration and the occasions on which it intrudes upon residential amenity, as well as its loudness.

The decision-maker must consider the relevant guidance and have a proper evidential basis for departing from its usual outcome. The resulting planning judgment is lawful if it addresses the relevant policies, rests on material evidence and is rationally explained. Reasons must be read fairly and as a whole. They need not record every observation or address each affected property separately where the parties can understand the decision-maker’s essential reasoning.

A developer sought planning permission for a 17-turbine wind farm within a Strategic Search Area in Clocaenog Forest. The local authority refused permission because of landscape, visual, recreational and noise effects. Following a public inquiry, the Planning Inspector dismissed the developer’s appeal. He found that the cumulative noise would probably remain within the indicative levels in ETSU-R-97 but would increase the duration of noise intrusion experienced by nearby residents and conflict with local policy MEW 10(iv).

Wyn Williams J allowed the developer’s appeal under section 288 of the Town and Country Planning Act 1990. He considered the Inspector’s reasons inadequate and tentatively regarded the noise conclusion as irrational. The Welsh Ministers appealed. The central issues were whether compliance with ETSU-R-97 precluded a finding of unacceptable noise and whether the Inspector had adequately and rationally explained his decision.

1. Appeal allowed. The Inspector’s refusal of planning permission was restored. Pitchford LJ gave the leading judgment. Elias and Carnwath LJJ agreed.
2. Local policy MEW 10(iv), read in context, required consideration of the consequences of the development for the surrounding community. Its reference to unacceptable noise levels was wide enough to encompass not only loudness but also the occasions and duration of noise intrusion. ETSU-R-97 was relevant guidance on good practice, not an absolute standard. Compliance with its indicative levels did not prevent the Inspector from finding that the cumulative impact on residential amenity was unacceptable.
3. The Inspector had a proper evidential basis for his conclusion. He considered the residents’ evidence and tested it during several site visits under different wind conditions. He was entitled to find that existing turbines caused audible interference without breaching their planning condition and that turbines at the proposed site would materially increase the time during which residents experienced such interference.
4. The Inspector’s reasoning contained no irreconcilable inconsistency. He accepted that the proposal could comply with ETSU-R-97 while concluding that the additional duration of noise intrusion would conflict with MEW 10(iv). The technical framework informed the planning judgment but did not replace it. Applying the approach in British Aerospace Plc v Secretary of State for the Environment [1997] EWHC 556 (Admin), a planning decision-maker may reach a conclusion differing from technical evidence or guidance, provided relevant considerations are addressed and the conclusion is rational.
5. Applying South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, the decision letter had to be read straightforwardly and as a whole. Its lack of property-by-property detail did not make the reasons inadequate. The parties knew the evidence being tested, and the Inspector explained the essential path from the existing noise conditions, the prevailing winds and the consented developments to his conclusion.
6. The decision was neither irrational nor unlawfully inconsistent with earlier permissions. Consistency required the Inspector to apply the relevant national and local policies, not to reproduce the outcome of previous applications. Carnwath LJ added that guidance should usefully address the duration of noise exposure as well as cumulative noise levels. The High Court’s order was set aside, the Inspector’s refusal stood, and the respondent was ordered to pay the Welsh Ministers’ costs here and below, subject to detailed assessment if not agreed.

1. Court of Appeal (Civil Division): The Welsh Ministers’ appeal was allowed. The High Court’s order was set aside and the Inspector’s refusal of planning permission was restored: [2010] EWCA Civ 1635.
2. High Court, Administrative Court: Wyn Williams J allowed the developer’s appeal under section 288 of the Town and Country Planning Act 1990, holding that the Inspector’s reasons were inadequate. No citation is stated.
3. Planning appeal: Following a public inquiry, the Inspector dismissed the developer’s appeal against the local authority’s refusal of planning permission.