Tegni Cymru Cyf v The Welsh Ministers & Anor

In a planning challenge under section 288 of the Town and Country Planning Act 1990, the court will not review the planning merits or substitute its own judgment for that of an experienced Inspector. A visual or noise assessment is unlawful only if it is irrational, based on a material misinterpretation of policy, or inadequately reasoned. Compliance with indicative noise guidance does not automatically prevent an Inspector finding noise unacceptable, but the decision must explain clearly how both conclusions can stand together. Planning policy issued for England or Scotland is not a material consideration in a Welsh planning appeal merely because its underlying reasoning is similar.

The claimant sought, under section 288 of the Town and Country Planning Act 1990, to quash an Inspector’s dismissal of its appeal against refusal of permission for a 13-turbine wind farm in Denbighshire. The challenge alleged irrational conclusions on visual impact and noise, inadequate reasons, procedural unfairness, inconsistency and failure to apply a proposed baseline principle.

The Inspector accepted that the proposed turbines would comply with the indicative noise levels in ETSU-R-97, but concluded that cumulative noise would nevertheless be unacceptable under Policy MEW 10(iv) of the Denbighshire Unitary Development Plan. The central issue was whether that conclusion, and the reasons given for it, were legally sustainable.

1. The claim succeeded in relation to the Inspector’s treatment of noise. The decision was legally defective because the reasons did not explain how cumulative noise could comply with ETSU-R-97 while remaining unacceptable under Policy MEW 10(iv). The decision also failed adequately to identify the residences affected or explain why the impact on them was unacceptable.
2. A section 288 challenge is not an opportunity to reargue the planning merits. An Inspector’s planning judgment will not be disturbed unless it is irrational or otherwise legally flawed. The threshold is particularly high where the decision reflects expert assessment and site visits.
3. The Inspector was entitled to assess visual amenity, including whether turbines would appear overbearing and whether cumulative development would create an unacceptable visual impact. No rigid “baseline principle” required him to treat an inevitable or policy-compliant impact as acceptable.
4. Indicative noise levels in ETSU-R-97, referred to in [2010] EWHC 1106 (Admin) through TAN 8, were guidance rather than absolute limits. Compliance could therefore be relevant without being conclusive. Any departure from the apparent policy consequence of compliance required clear and cogent reasoning.
5. There was no procedural unfairness. The claimant had heard the residents’ noise complaints, knew of the Inspector’s site visits, and had an opportunity to address the issue in closing submissions.
6. PPS 22, its Companion Guide and PAN 45 were irrelevant to the Welsh appeal. Similarity between policies did not make an English or Scottish policy document a material consideration in Wales.
7. The Inspector’s decision was to be quashed, with the claimant’s planning appeal reconsidered afresh.

not stated in the judgment.