Rhoscrowther Wind Farm Ltd v The Welsh Ministers & Anor

A planning decision must be read fairly and as a whole. A decision-maker takes a material planning consideration into account if it considers it and reaches a judgment about the weight or assistance it provides; finding that it does not support a proposal is not treating it as irrelevant. An Enterprise Zone may receive no weight where it has no planning policy status and no demonstrated connection with the proposal. English planning policy and authorities on “substantial harm” cannot automatically be transposed into Wales, where the applicable planning framework is different. In Wales, the degree of harm to a heritage asset is a matter for the decision-maker within the planning balance, rather than a threshold which necessarily triggers a presumption against permission.

The claimant applied for permission to construct five wind turbines near the Pembrokeshire Coast National Park and St Decumanus’s Church, a Grade I listed building. The local planning authority refused permission. On a section 78 appeal, the Welsh Ministers’ inspector dismissed the appeal.

The claimant renewed an application for permission to pursue a claim under Town and Country Planning Act 1990, section 288, challenging the inspector’s approach to the National Park supplementary planning guidance, the Enterprise Zone designation and the assessment of substantial harm to the listed building’s setting.

1. Application refused. None of the four grounds disclosed an arguable error of law. The claim was essentially a challenge to the planning merits.
2. The inspector’s decision had to be read fairly and as a whole. The supplementary planning guidance was expressly considered. The inspector was entitled to conclude that guidance contemplating a small cluster of two or three turbines within the relevant landscape character area did not support a proposal for five turbines outside the National Park. That conclusion was not equivalent to treating the guidance as irrelevant, and the parties had adequate opportunity to address its relevance, weight and effect.
3. The Enterprise Zone was acknowledged as a material consideration. The inspector was nevertheless entitled to give it no weight because it was not a planning policy designation and there was no linkage between the proposed development and the Enterprise Zone initiative.
4. The English decision in Bedford Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 2847 (Admin) concerned paragraphs 131–134 of the National Planning Policy Framework and did not establish the governing approach in Wales. The NPPF did not apply in Wales, which had a separate planning system and its own policy framework. The expression “substantial harm” therefore could not simply be assumed to have the same meaning, particularly because substantial harm triggered a presumption against permission in England.
5. In Wales, the degree of harm to a designated heritage asset was one factor in the planning balance. Its assessment was a matter of planning judgment. The inspector had explained why the turbines would cause substantial harm to the church’s setting and had properly taken that harm into account.

High Court (Administrative Court): Coulson J initially refused permission to proceed with the section 288 claim. On renewal, Hickinbottom J refused the application and declined to permit the claim to proceed.