Ecotricity (Next Generation) Ltd v Secretary of State for Communities & Local Government

A planning policy which permits renewable-energy development subject to the absence of significant adverse landscape or visual impact must be read in context. The inevitable fact that a wind farm will have significant visual effects does not itself establish unacceptable harm. Equally, it does not prevent the decision-maker from finding that a particular significant effect is significantly adverse. That assessment is pre-eminently one of planning judgment.

A Secretary of State may disagree with an inspector on visual impact without personally visiting the site, provided that sufficient material enables a reasonable judgment to be made. Where the disagreement concerns the ultimate policy judgment after the relevant impacts have been assessed, concise reasons may be adequate.

The appellant sought planning permission for four wind turbines in Somerset. An inspector recommended that permission be granted, finding significant landscape and visual effects within approximately two kilometres of the site but no significantly adverse or unacceptable harm under Core Strategy Policy D4.

The Secretary of State recovered the appeal, disagreed on that final planning judgment, and refused permission. Mitting J dismissed the appellant’s statutory challenge under section 288 of the Town and Country Planning Act 1990: [2014] EWHC 2699 (Admin).

The appeal concerned whether the Secretary of State had misapplied or inadequately explained his application of Policy D4, and whether he had to undertake a site visit before differing from the inspector on visual impact.

Disposition

1. The appeal was dismissed. Sullivan LJ gave the judgment, with which Tomlinson LJ and Beatson LJ agreed.
2. Policy D4 had to be interpreted in its planning context. National guidance recognised that major wind farms will commonly produce significant landscape and visual effects. This meant that significant effects did not necessarily amount to significant adverse or unacceptable harm. The converse was also true: an effect did not cease to be significantly adverse merely because some significant effect was inevitable. The assessment of the particular impact was pre-eminently a planning judgment for the Secretary of State.
3. The Secretary of State had applied the same policy as the inspector and had adopted the inspector’s analysis of the effects. The sole difference was whether the acknowledged impact within the two-kilometre zone was significantly adverse in policy terms. His reasons were intelligible and adequate. That final evaluative question permitted a simple answer, and neither the inspector nor the Secretary of State needed to provide further elaboration.
4. The court endorsed the established test for a disagreement about visual impact: whether the Secretary of State had sufficient material on which reasonably to make the judgment. He had ample material, including accurate photomontages, the inspector’s assessment and caveats, and the council’s evidence. A personal ministerial site visit was unnecessary. Nor would an additional visit by an official assist, because the minister would still decide from material supplied by others. Nothing about the case was exceptional enough to justify departing from that position.

• Court of Appeal (Civil Division) — dismissed the appeal and upheld the Secretary of State’s refusal of planning permission.
• High Court, Administrative Court — Mitting J dismissed the appellant’s challenge under section 288 of the Town and Country Planning Act 1990: [2014] EWHC 2699 (Admin).
• Secretary of State for Communities & Local Government — dismissed the planning appeal under section 78 of the Town and Country Planning Act 1990, disagreeing with the inspector’s recommendation to grant permission.