Ecotricity (Next Generation) Ltd R (On the Application Of) v Secretary of State for Communities And Local Government

In a recovered planning appeal, disagreement between the Secretary of State and an inspector is ordinarily a matter of planning judgment and does not, without more, constitute an error of law. A local plan’s supporting text may assist in interpreting a policy, but it is not itself policy and cannot override the policy’s operative terms. The decision-maker must assess the particular proposal against the relevant policies and need not treat an identified area’s potential for renewable energy as establishing that every proposal within it is acceptable. A Secretary of State may disagree with an inspector on landscape and visual impact without personally visiting the site, provided the decision is based on adequate evidence and gives adequate reasons.

The claimant challenged the Secretary of State’s refusal of planning permission for four wind turbines at West Huntspill, Somerset. An inspector recommended that the appeal be allowed after an inquiry and site visits. The Secretary of State recovered the appeal, disagreed with the inspector’s assessment of landscape and visual impact, and refused permission, finding conflict with local policies D4 and D14 which was not outweighed by the renewable-energy benefits.

The challenge alleged that the Secretary of State had failed to take account of the supporting context to the policies and had improperly reached a different landscape judgment without visiting the site. The central issues were whether the decision was inadequately reasoned and whether a personal site visit was required.

1. Challenge dismissed. The Secretary of State’s decision was a planning judgment reached on the evidence and was adequately reasoned.
2. The supporting text to a local plan policy is relevant to interpreting that policy, as explained in Cherkley Campaign Ltd v Mole Valley District Council [2014] EWCA Civ 567, but it is not itself policy and cannot trump the operative policy. The reference to the area’s potential for renewable-energy generation did not establish that the particular proposal had to be accepted. The Secretary of State was required to assess this proposal under policies D4 and D14.
3. The Secretary of State was entitled to conclude that the turbines would have a significantly adverse impact on landscape character and visual amenity and that the renewable-energy benefits did not outweigh that harm. The difference between the inspector’s conclusion and the Secretary of State’s conclusion was a difference in planning judgment.
4. In a recovered appeal, there is generally no obligation on the Secretary of State, or a civil servant, to visit the site personally. Novalong Ltd v Secretary of State for Communities & Local Government [2008] EWHC 2136 (Admin) explained that the Secretary of State may disagree with an inspector on planning judgment, subject to adequate reasons, even without having seen the site. Here, the Secretary of State had the inspector’s site-based assessment, photomontages and other expert evidence. The case did not disclose any exceptional feature requiring a personal visit.
5. The additional complaint about national guidance on landscape impacts in flat areas was merely an anodyne observation. Permission to appeal was refused, and costs were ordered in favour of the Secretary of State in the agreed sum of £8,866.

This was a first-instance judicial review challenge in the Administrative Court. The court described it initially as an appeal but corrected that description to “challenge”.