Sea & Land Power & Energy Ltd v Secretary of State for Communities and Local Government & Anor

Planning judgment is for the planning decision-maker, not the reviewing court. A challenge under Town and Country Planning Act 1990 section 288 must identify an error of law, irrationality, or inadequate reasons, and must not become a rehearing on planning merits.

Decision letters should be read fairly, as a whole, and by an informed reader. They need address the principal controversial issues, but need not rehearse every argument or cite every policy expressly. The statutory development plan has priority under section 38(6) of the Planning and Compulsory Purchase Act 2004, but national planning policy remains a material consideration. The decision-maker must balance competing policies and may depart from the development plan where material considerations justify doing so. National renewable-energy policy does not automatically override local landscape policies.

The claimant applied for planning permission for a four-turbine wind farm near Hemsby, Norfolk. Great Yarmouth Borough Council refused permission because of landscape and visual impact and uncertainty concerning effects on a European site. The claimant appealed to an appointed Inspector, who dismissed the appeal.

The claimant challenged the Inspector’s decision under section 288 of the Town and Country Planning Act 1990. It alleged failure to take account of the East of England Regional Spatial Strategy and renewable-energy targets, failure to apply the correct landscape-impact test, failure to give national renewable-energy policy primacy, and inadequate reasons. The central issue was whether the Inspector had erred in law or had merely exercised planning judgment adversely to the claimant.

1. Claim dismissed. The Inspector’s decision was not unlawful. The court could not substitute its own planning judgment for that of the Inspector: planning merits and the weighing of competing considerations were matters for the decision-maker. A section 288 challenge must not be used as a cloak for a rerun of the planning merits.
2. The Inspector must have known that the East of England RSS remained part of the development plan following Cala Homes (South) Ltd v Secretary of State for Communities and Local Government & Anor [2010] EWHC 2866 (Admin). Although the RSS was not named in the decision letter, paragraph 26 referred to regional renewable-energy policy, quantified the contribution of the turbines, and recognised their importance in meeting Government targets. That was sufficient evidence that the relevant regional policies and contribution to energy needs had been considered.
3. A decision letter must be read fairly and in good faith, as a whole, in a down-to-earth manner, and by an informed reader. It need not refer expressly to every policy or rehearse every argument. The reasons were adequate because they made clear that the decisive consideration was the material harm to the character and appearance of the area. The approach in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 was applied.
4. Read as a whole, the decision letter showed that the Inspector applied the significant-adverse-impact requirements in local landscape policies NNV2, NNV3 and NNV5. Her findings concerning the scale, height, cumulative effects, inter-visibility and effect on visual amenity demonstrated that the harm was significant. Policy NNV7 imposed an additional requirement that development be in keeping with the rural character of the area.
5. Section 38(6) of the Planning and Compulsory Purchase Act 2004 gives the statutory development plan priority, subject to material considerations. National policy, including PPS22 and the PPS1 Supplement, is a material consideration, but it does not automatically have primacy over local policy. The Inspector was required to balance the benefits of renewable energy against the landscape harm and was entitled to conclude that the harm justified refusal.
6. The local policies did not create an absolute prohibition on renewable-energy development. The existence of other permitted wind farms showed that the policies could operate consistently with national policy. The Inspector therefore committed no error of law in applying them.

This was a first-instance statutory challenge in the Administrative Court. The court dismissed the claim and upheld the Inspector’s decision dated 23 November 2010.