Powys County Council v The Welsh Ministers & Anor

In a planning decision, a policy is a material consideration only if it is relevant to the planning issue being determined. The court decides relevance; the decision-maker decides the weight to attach to a relevant consideration.

National policy made for determining development-consent applications for nationally significant infrastructure projects under a different statutory regime was not relevant to an appeal concerning planning permission for a smaller windfarm. The applicable development plan and Welsh planning policy governed the assessment of archaeological harm. A decision-maker may balance identified heritage harm against planning benefits, provided the reasons adequately explain the principal controversial issues. The absence of a financial agreement for decommissioning did not require refusal of permission where the permission itself imposed decommissioning and restoration obligations.

Powys County Council applied under section 288 of the Town and Country Planning Act 1990 to quash the Welsh Ministers’ decision allowing RES UK & Ireland Ltd’s appeal against refusal of permission for 17 wind turbines and associated infrastructure.

The Council challenged the treatment of paragraphs 5.8.14 and 5.8.15 of EN-1, a national policy statement made under the Planning Act 2008. It also alleged procedural unfairness, inadequate treatment of archaeological policy, and inadequate or irrational reasons for not requiring a financial agreement to secure decommissioning and restoration costs.

1. Claim dismissed. The Welsh Ministers lawfully allowed the planning appeal and granted permission subject to conditions.
2. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the starting point was the statutory development plan. The court determines whether a consideration is relevant to the planning issue. The decision-maker determines the weight to be given to a relevant consideration. A material consideration is generally one bearing on the use or development of land and capable of affecting the decision: Tesco Stores v Secretary of State for the Environment [1996] 1 W.L.R. 759; Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Winchester City Council [2011] 1 P. & C.R. 22; R (Watson) v London Borough of Richmond-upon-Thames [2013] EWCA Civ 513.
3. EN-1 applied to development-consent decisions for nationally significant infrastructure projects under the Planning Act 2008, including generating stations exceeding 50 megawatts. The present appeal concerned planning permission for a development below that statutory threshold, governed by the Town and Country Planning Act 1990 and Welsh planning policy. EN-1 was therefore not relevant to the decision and the Welsh Ministers were entitled not to apply it (paras [43]-[56]).
4. There was no procedural unfairness. The Council had advanced its case on the relevant policies, the Welsh Ministers had that material before them, and the issue was whether EN-1 was legally relevant rather than a new factual issue. In any event, no material prejudice was shown (paras [58]-[61]).
5. The inspector and Welsh Ministers properly addressed the impact on the settings of the scheduled monuments. The inspector identified substantial harm to three monuments and other, lesser impacts, then weighed those matters against the benefits of renewable energy and other planning considerations. The reasons were adequate and intelligible under South Bucks District Council v Porter (No. 2) [2004] 1 W.L.R. 1953 (paras [62]-[67]).
6. The conditions required decommissioning and restoration. The Welsh Ministers rationally concluded that a financial mechanism should not be imposed by condition and that, on the facts, the absence of a legal agreement did not justify refusing permission. That was a planning judgment adequately explained in the decision letter (paras [68]-[72]).

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The application to quash the Welsh Ministers’ decision was dismissed.