RWE Npower Renewables Ltd. v The Welsh Ministers

A planning decision may be quashed for inadequate reasons where the decision-maker rejects coherent, reasoned expert evidence on the principal controversial issue without explaining why. The court must respect planning judgment and avoid forensic analysis of decision letters, but the reasons must disclose an intelligible and adequate route to the conclusion. Where competing expert opinions are central, a brief reasoned rebuttal is generally required. It may also be procedurally unfair to rely on concerns about evidence without giving the affected party an opportunity to address them. The broad discretion to approve an exchange of common land permits attention to the suitability, location and management of exchange land.

The claimant challenged two decisions of the Welsh Ministers concerning a proposed wind farm at Mynydd y Gwair. Under section 288 of the Town and Country Planning Act 1990, it challenged dismissal of its appeal against the deemed refusal of planning permission. It also sought permission for judicial review of refusals under section 147 of the Inclosure Act 1845 to approve exchanges of common land.

The Inspector concluded that the proposed layout created an unacceptable risk of harm to peat habitat, notwithstanding mitigation and contrary expert evidence. He also concluded that the proposed exchange land was unsuitable. The central issues were whether the planning reasons were adequate, whether the procedure was unfair, and whether the Inspector misunderstood or unlawfully assessed the exchange proposal.

1. Planning challenge. The section 288 challenge succeeded and the planning appeal was to be reconsidered. The court does not review planning merits or substitute its own judgment for that of the Inspector or Welsh Ministers. Nevertheless, reasons must enable the reader to understand how the principal important controversial issues were resolved and must not leave a substantial doubt that the decision rested on irrelevant grounds or legal error.
2. The Inspector rejected the reasoned opinions of the claimant’s ecology and hydrology experts that, with mitigation, the effect on peat would remain minor. Their evidence had not been challenged at the inquiry. The report identified the locations causing concern but did not explain why their assessment was rejected. Since the decision involved a choice between competing expert views, a brief coherent rebuttal was required. The defect substantially prejudiced the claimant because it could not identify what an amended proposal would need to address. The Minister’s decision letter did not cure the deficiency.
3. The court also inclined to the view that it was procedurally unfair not to alert the claimant and its experts to the Inspector’s doubts before those doubts were relied upon, although it was unnecessary to determine that ground independently.
4. Common land exchange. Permission to apply for judicial review was refused. The Inspector understood the claimant’s case that surrender of grazing rights over remaining common land would produce a net grazing benefit. Section 147 involved a broad discretion requiring satisfaction that the exchange would be beneficial and that its terms were just and reasonable. It was not arguably unlawful for the Inspector to focus on the suitability and location of the exchange land and on its management, having regard to the interests of commoners.

These were first-instance proceedings. The court allowed the section 288 challenge on the reasons ground and refused permission for judicial review of the section 147 decisions.