RWE Renewables UK Swindon Limited v Welsh Ministers

On a statutory review of a planning decision, the court must read the inspector’s decision letter fairly and as a whole. The decision-maker must assess whether the proposal accords with the development plan as a whole, while giving proper priority to the development plan and weighing material considerations in the planning balance.

Where a planning policy supports development subject to specified environmental criteria, an inspector may conclude that the policy does not require permission once an unacceptable adverse impact is found. The meaning and application of planning policy must be distinguished: interpretation is a matter of law, but the assessment of acceptability and weight is ordinarily a matter of planning judgment. Minor illogicality or imperfect expression will not justify quashing a decision where the outcome was rationally inevitable and the decision letter, read fairly, shows that material considerations were taken into account.

The claimant sought statutory review under section 288 of the Town and Country Planning Act 1990 of an inspector’s refusal of planning and associated permissions for up to six wind turbines near the southern boundary of Bannau Brycheiniog National Park.

The inspector found the proposal acceptable in principle and broadly compliant with ecological and other policies, but concluded that its significant landscape and visual effects would have an unacceptable adverse impact on the setting and special qualities of the National Park. He regarded that harm as compelling and outweighing the renewable-energy and economic benefits.

The claimant alleged seven errors of law, including failure to assess compliance with the development plan as a whole, misinterpretation of “acceptable” in Policy 18 of Future Wales, failure to consider wholly exceptional circumstances, irrational treatment of ecological benefits, failure to consider peat and habitat benefits, and misunderstanding of the landscape evidence.

The statutory review claim failed and the inspector’s decision stood.

1. Development plan. The inspector was entitled to focus on Policy 18 of Future Wales, while also referring to the relevant local-plan policies. He found the proposal acceptable in principle, subject to environmental effects, but was then required to consider whether the proposal had an unacceptable adverse impact on the surrounding landscape, particularly the setting of the National Park.
2. Policy 18. The word “unacceptable” was not equated with “significant”. Reading the decision letter fairly as a whole, the inspector considered the appropriateness of the development and reached a planning judgment, based on the evidence and his site visits, that the impact on the National Park was unacceptable. Once that criterion was not met, Policy 18 did not require permission to be granted. It did not itself require refusal, but the inspector was entitled to find that the harm was compelling and outweighed the benefits.
3. Exceptional circumstances. The inspector applied an exceptionality test where appropriate, including in relation to protected ecological resources. There was no basis for treating that test as a free-standing requirement governing the planning balance in addition to the policy-specific analysis.
4. Ecological benefits. The inspector’s statement that ecological benefits could not be realised because permission was being withheld displayed a lack of logic. Nevertheless, read as a whole, the decision remained rational. The inspector had considered those benefits earlier and had found the National Park harm sufficient to outweigh the benefits of the scheme.
5. Landscape assessment. The inspector was entitled to reject the proposed distinction between “core” and other areas of the National Park as lacking policy justification. He nevertheless assessed effects in detail across different areas, including effects on tranquillity, remoteness, openness, skylines and dark skies.

The seven grounds therefore failed. A draft order and any consequential written submissions were to be filed within 14 days.