Welsh Ministers & Anor v RWE NPower Renewables Ltd

An inspector may make the planning judgment whether a proposed development creates an unacceptable risk of harm to a protected habitat. Expert evidence requires careful consideration, but it does not displace that judgment or compel acceptance of an expert's evaluative conclusion.

Reasons are adequate when read fairly in their context by parties who know the issues and can understand why the decision was reached. An inspector is not generally required to reveal provisional views to witnesses where the issue has been identified and the parties have had a fair opportunity to present their evidence.

RWE NPower Renewables Ltd sought planning permission for a wind farm near Swansea. A further survey showed that proposed turbines and access tracks would affect deep peat. The appointed inspector recommended refusal because the development created an unacceptable risk of harm to the peat habitat.

The Welsh Ministers accepted that recommendation. Beatson J, in the Administrative Court, quashed their decision for inadequate reasons and was inclined to find procedural unfairness: [2011] EWHC 1778 (Admin). The Welsh Ministers appealed.

The central issues were whether the inspector had adequately explained his departure from the developer's expert evidence, and whether fairness required him to put his concerns to the experts during the inquiry.

Appeal allowed. The court restored the Welsh Ministers' refusal of planning permission.

1. The inspector's reasons were intelligible and adequate. They identified the decisive point: turbines and tracks were proposed on deep peat, mitigation would reduce but not remove the impact, and the resulting risk of unacceptable harm justified refusal. Read in context, the decision gave the developer sufficient information to understand both why it had lost and how a future proposal might be altered. The applicable approach to reasons was that stated in [2004] 1 WLR 1953.
2. The assessment of whether harm, or the risk of harm, to the peat habitat was significant and unacceptable was a planning judgment for the inspector. He had to consider the expert evidence and mitigation measures, but he was not bound to accept the developer's conclusion that the overall effect would be minimal. Pill LJ held that the inspector could reach his own judgment on the protected habitat; Elias LJ added that the inspector could properly adopt a cautious approach to an unnecessary risk of serious harm.
3. The statutory biodiversity duties formed part of the planning context. The court accepted that the Welsh Ministers were required to protect the peat habitat and that its protected status was a material planning consideration.
4. There was no procedural unfairness. Applying [2001] EWHC Admin 77, an inspector has no general duty to reveal provisional thinking. Ecology and the importance of the peat had been clearly raised, the developer knew the case it had to meet, and it had a full opportunity to present evidence. The inspector was not required to warn its experts that he might reject their evaluative opinions.

A redesigned scheme avoiding the deep peat could be pursued by a fresh planning application.

1. Court of Appeal (Civil Division) Allowed the Welsh Ministers' appeal and restored their refusal of planning permission: [2012] EWCA Civ 311.
2. High Court, Queen's Bench Division, Administrative Court Beatson J quashed the Welsh Ministers' decision for inadequate reasons and was inclined to find procedural unfairness: [2011] EWHC 1778 (Admin).