Wind Prospect Developments Ltd v Secretary of State for Communities And Local Government & Anor

A Secretary of State determining a recovered planning appeal is the primary decision-maker. He may substitute his own planning judgment for that of an Inspector, including on planning merits, provided that he considers the relevant material and gives adequate reasons. A site visit is not generally required.

Reasons must be intelligible and adequate to explain the principal controversial issues. The court should read a planning decision letter straightforwardly and avoid excessive legalism. No heightened requirement for a paragraph-by-paragraph rebuttal arises merely because the decision-maker disagrees with an expert Inspector.

In applying the statutory heritage duties, considerable importance and weight must be given to preserving listed buildings, their settings and conservation areas. The claim was dismissed.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s dismissal of its recovered appeal against refusal of permission for six wind turbines in East Yorkshire.

An Inspector had recommended permission, finding that the renewable-energy benefits outweighed landscape, visual, heritage and other harms. The Secretary of State disagreed and dismissed the appeal, giving weight to cumulative visual effects, residential amenity, tourism and heritage impacts.

The issues were whether the Secretary of State was entitled to depart from the Inspector’s planning judgments and whether his reasons disclosed errors concerning landscape, living conditions, tourism, heritage assets and the planning balance.

1. Disposition. The claim under section 288 of the Town and Country Planning Act 1990 was dismissed.
2. The Secretary of State, when recovering an appeal under paragraph 3 of Schedule 6, is the primary decision-maker. He is not exercising an appellate jurisdiction over the Inspector. He must consider the Inspector’s report and the relevant evidence, but may reach a different planning judgment. He is not generally required to inspect the site personally.
3. The Secretary of State was entitled to disagree with the Inspector on landscape sensitivity and harm, visual effects on residential amenity, cumulative effects and tourism. The decision letter gave adequate and intelligible reasons. Expressions such as potential deterioration and potential impacts did not create new legal tests.
4. The statutory heritage duties had to be applied in accordance with East Northamptonshire DC v Secretary of State for Communities and Local Government [2014] EWCA Civ 137. Preserving means doing no harm, and considerable importance and weight must be given to the desirability of preserving listed buildings, their settings and conservation areas. The Inspector’s contrary approach could not be relied upon, but the Secretary of State correctly separated assessment of harm from the planning balance.
5. The Secretary of State correctly applied paragraph 14 of the NPPF. Although one sentence concerning the weight placed on benefits was imperfectly expressed, a straightforward reading of the decision disclosed no genuine doubt about the reasoning or outcome. The cumulative effects considered were already within the evidence and did not trigger further representations under rule 17(5) of the 2000 Rules.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The Secretary of State had dismissed the claimant’s recovered planning appeal on 21 May 2014.