Bayliss v Secretary of State for Communities and Local Government & Ors

A planning inspector’s decision letter must be read as a whole, practically and with common sense. It need address only the principal controversial issues. A policy requiring “great weight” to be given to conserving an Area of Outstanding Natural Beauty does not prescribe a fixed weight or require that phrase to be repeated. The weight properly given may reflect the assessed degree of harm.

An immaterial factual error does not invalidate a site-specific planning decision. Where predicted renewable-energy output is inherently uncertain, an inspector may evaluate the available range without selecting a precise capacity factor or quantifying the benefits more exactly.

A local resident challenged under section 288 of the Town and Country Planning Act 1990 a planning inspector’s grant of permission for a wind farm near Wareham, Dorset. The High Court dismissed the challenge in [2013] EWHC 1612 (Admin).

The appeal concerned whether the inspector had failed to give the required weight to the effect on the adjacent Dorset Area of Outstanding Natural Beauty, had materially erred in stating that Purbeck had Dorset’s best wind resource, and had dealt unlawfully with undisclosed site-specific wind data and the scheme’s projected capacity factor.

1. Appeal dismissed unanimously. The inspector’s decision disclosed no error of law. His decision letter had to be read as a whole, practically and with common sense. It was unnecessary to rehearse every argument made at the inquiry.

2. The inspector had regard to the National Planning Policy Framework and separately assessed the effect on the Area of Outstanding Natural Beauty. The court could therefore assume that he considered the submissions concerning the Framework unless the decision letter clearly indicated otherwise. Nothing in the letter displaced that assumption.

   The requirement to give “great weight” to conserving landscape and scenic beauty did not require the inspector to repeat those words. Harm to a protected landscape may range from trivial to major. The decision-maker may attach weight reflecting the degree of harm found; it would be irrational to disregard that degree. Here the inspector found only a limited impact on the adjacent protected area and treated it separately from landscape harm generally.

3. The statement that Purbeck had Dorset’s best wind resource could not have affected the result. The inspector was deciding whether the particular proposal was acceptable, not comparing competing sites. The material question was whether this scheme’s renewable-energy benefit outweighed its planning harm. Its ranking against other areas’ wind resources was irrelevant to that site-specific balance.

4. The inspector knew that the developer had withheld commercially sensitive, site-specific wind data. He was not required expressly to record that controversy. Broader wind data was available to the council and objectors, and the competing capacity factors were before him.

   Given the inherent uncertainty and variability of wind resource, the inspector did not have to choose precisely between the proposed capacity factors of approximately 20 and 30 per cent. He was entitled to favour the upper part of the range because of the modern turbines proposed. Nor did he need to quantify the renewable-energy benefits more precisely. Commercial viability was not a material planning consideration. The finding of significant renewable-energy benefits was sufficient to support the conclusion that those benefits outweighed the limited harm.

1. Court of Appeal (Civil Division): In [2014] EWCA Civ 347, unanimously dismissed the appeal and upheld the conclusion that the inspector’s decision contained no error of law.
2. High Court, Administrative Court: Hickinbottom J dismissed the challenge under section 288 of the Town and Country Planning Act 1990 in [2013] EWHC 1612 (Admin).
3. Planning inspector: Allowed the developer’s appeal against the local planning authority’s refusal of planning permission for the wind farm.