NOTE - permission to appeal the decision of Mitting J was granted by the Court of Appeal and shortly before the CA hearing in July 2008 the Secretary of State conceded. Copies of these decisions can be downloaded from this page in .pdf format (the second and third documents on the right described as "judgments").
Neutral Citation Number:  EWHC 637 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
Wednesday, 19th March 2008
B e f o r e:
MR JUSTICE MITTING
THE QUEEN ON THE APPLICATION OF HULME
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
Computer Aided Transcript of the Stenograph Notes of
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Mr D Forsdick (instructed by Richard Burton Solicitors) appeared on behalf of the Claimant
Mr P Brown (instructed by Treasury Solicitors) appeared on behalf of the Defendant
J U D G M E N T
(As Approved by the Court)
1. MR JUSTICE MITTING: This is a challenge under Section 288 of the Town and Country Planning Act 1990 to the decision of Mr David Lavender, dated 22nd March 2007, to grant on appeal planning consent for a development in Devon. The development was a nine 3 bladed horizontal access wind turbine farm with electricity transformers and associated works.
2. The farm was to be built on open agricultural land, at the south east of North Tawton and south west of Bow. As is apparent from the decision, the land is an attractive valley and the windfarm will cover a significant part of it.
3. The inspector allowed the developer's appeal against the refusal of the local planning authority, West Devon Borough Council, of consent for the development.
4. A number of issues were in play in the appeal. First, the contribution which the development would make to the generation of electricity, without the use of non renewable fuels. Secondly, the impact upon the visual amenity of the countryside in the vicinity of the development. Thirdly, the impact upon people living near to it; and in particular, the impact caused by noise and by an effect called "shadow flicker"; the effect produced by the rotation of the blades through sunlight. The inspector decided that there would be a material contribution to Devon's contribution to renewable energy supplies. He applied a nationally and locally accepted test of the installed capacity which he assessed at 18 megawatt hours, by comparison with the target intended by Devon of 151 megawatt hours by 2010. There is a challenge to that aspect of his decision. He determined that there would be an impact on the visual amenities of and around the site, and upon the historic landscape, but concluded that the adverse impact would be outweighed by the economic benefit of the development.
5. The applicant in this claim, Mr Hulme, is the owner and occupier of a house just under two thirds of a mile from the outer edge of the proposed windfarm, called Coxmoor. He objected to the application when it was determined at local planning authority level, both on general grounds and on the specific impact which he believed would occur; in particular, from noise at his house. As is required by the environmental impact regulations, the developer produced an environmental impact assessment which dealt with, amongst other issues, noise. Measurements were taken over several days at varying wind speeds to demonstrate the background noise at various places on and around the site, and in particular at Coxmoor.
6. The local planning authority did not reject the application for planning permission on noise grounds. Mr Hulme maintained his objection on noise grounds and other grounds at the appeal. One topic of particular concern to him was his wish to see the raw data upon which the figures and graphs and diagrams had been produced, to illustrate the measurements of background noise made in the environmental impact statement.
7. The developer refused to produce the raw data for a variety of reasons, which for myself I find thoroughly unconvincing. First, commercial confidentiality; it is difficult to see how there could conceivably be any commercial confidentiality in the matter of wind noise anywhere, let alone on this site. Secondly, that Mr Hulme, unaided, would not understand them; that may well be so, but he had indicated a willingness to obtain expert advice to permit him to do so. Thirdly, that the developer was unwilling to spend professional time and cost in assisting Mr Hulme to understand the raw data; that too was not a sensible argument, because all that he sought was the data itself and not any explanation of it.
8. The developer's attitude to the disclosure of this information, as can readily be understood, might excite suspicion as to their motive in insisting that it would not be disclosed.
9. Mr Forsdick, who appears today for Mr Hulme, submits that the denial of access to the raw data was a denial of natural justice to Mr Hulme such as, in the end, to vitiate the decision made by the inspector on the question of noise. He accepts that there is no traditional natural justice challenge here because the inspector did not see the raw data either, and so did not take into account anything that was not made available to Mr Hulme.
10. What the inspector did was to decide in a single sentence that he was satisfied that the background noise had been appropriately measured. He made that decision against a number of pieces of information. First of all, there is a 1996 paper prepared by the energy technical support unit for the then DTI which sets out how noise, in particular background noise, should be measured. It is not necessary for me to go into the detail of the methodology proposed, but all that need be noted is that in measuring noise, the measurer should take care to exclude the transient noise externally caused, which does not truly form part of the general background noise. For example, those seeking to measure background noise should exclude the noise of aircraft or hedge trimmers or mechanical devices of that kind.
11. Secondly, the inspector had the environmental impact statement itself, which set out in considerable detail and in tabular form the measurements which had been achieved. Paragraph 9.5.2 of the statement noted that:
"Data had been filtered and instances of unexpected peaks removed."
12. Accordingly, on its face, the environmental impact statement asserted that the steps recommended by the ETSU and which were of concern to Mr Hulme had been taken.
13. Mr Hulme's concern was that in measuring background noise, such externally influenced peaks had not been taken into account. He raised that issue before the local planning authority; he raised it with the expert, an independent expert instructed on behalf of the developer, Dr Bullmore. Dr Bullmore's report, which was read as undisputed evidence at the inquiry, was to the effect that he had himself checked the methodology used by the measurers and was satisfied that the assessment was undertaken in accordance with the methodology set out in the ETSU report; see paragraphs 2.2 and 2.3 of Dr Bullmore's report.
14. He said in terms in paragraph 7.2:
"All operational windfarm noise impact assessments have been undertaken in accordance with the guidance and procedures set out in the relevant documents,"
15. which he then identifies.
16. Accordingly, the inspector had before him not only Mr Hulme's objection that he had not seen the raw evidence, but three pieces of evidence which indicated that the measurement of background noise had been properly undertaken.
17. The inspector had no power to order the developer to disclose the raw data to Mr Hulme. He could have adjourned the hearing to permit that to be done and, if the raw data was not disclosed, could have drawn an adverse inference from the refusal to disclose it. But in the event, no application was made to him by Mr Hulme for an adjournment.
18. What Mr Hulme did was to speak to Dr Bullmore, and in a note of his discussions with him dated 29th November 2006, the penultimate day of the hearing of the appeal, he noted that Dr Bullmore had informed him that:
"So called 'infrequent noise' such as flail hedge trimming is supposed to be eliminated from the recorded data before deriving the permissible noise emission limits. Dr Bullmore informed me that these types of noise are eliminated by, firstly, comparing the day and nighttime data and then manually removing anomalies. There is an element of subjectivity in this process."
19. In one respect, Mr Hulme noted Dr Bullmore's agreement that the background noise in fact noted in October would be unrepresentative of background noise in the summer. A brook runs past Coxmoor; it is dry in the summer, but not in October. Accordingly, as Mr Hulme noted in paragraph 4 of his note, he and Dr Bullmore agreed that the minimum background noise during quiet periods would typically be around 16 18 dB(A), rather than the measured 22 dB(A).
20. There is no doubt that this issue was of importance in the appeal, because in due course it became the subject of a detailed condition; condition 13, to which I will refer shortly. In hindsight, it would have been better if the inspector had set out his reasoning on this aspect of the appeal in somewhat fuller terms than he did. But in fairness to him, he had a great deal to grapple with and his decision is, in all other respects, a model of thoroughness and clarity. But as regards this issue, all that he said was:
"Having reviewed the submissions, I am content that the background noise levels have been suitably established in accordance with ETSU R 97 methodology and that the calculations in the environmental statement, even after the modification according to the rebuttal evidence, indicates that an acceptable noise environment will prevail, both at this property and by extrapolation at others more distant from the proposed turbines."
21. In addition therefore to the natural justice challenge, there is a reasons challenge which Mr Forsdick has elaborated. The law on this topic is uncontroversial and is summarised in paragraph 36 of Lord Brown's speech in South Buckinghamshire District Council v Porter (No 2)  1 Weekly Law Reports, 1953 at 1964. I need not set it out in full.
22. Lord Brown observed that the reasons could be briefly stated, and that a reasons challenge would only succeed if the party aggrieved could satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.
23. The sentence which I have quoted from this decision demonstrates with perfect clarity the inspector's conclusion, that background noise levels had been suitably established in accordance with the appropriate methodology and they indicated that an acceptable noise environment would prevail at Coxmoor. He is therefore to be taken to have accepted Dr Bullmore's conclusion and evidence that the methodology used was appropriate. He can be taken to have accepted the assertion in the environmental impact statement that the methodology used accorded with the ETSU document.
24. It was unnecessary for him to set out the reasons for his acceptance any more fully than that. What mattered was that he accepted that it had been properly done, and that the impact of noise upon Coxmoor would be acceptable.
25. If I stand back and ask myself whether, having regard to both issues viewed together, natural justice and sufficiency of reasons, Mr Hulme has demonstrated that he has been substantially prejudiced by either the procedure adopted or the brevity of the reasoning, the answer is simply no; at least in relation to the principal decision whether or not noise caused at Coxmoor should lead to the refusal of planning consent for this development. The questions feed into the second issue raised in this appeal, the sufficiency of condition 13. Condition 13 provides:
"The level of noise emissions from the turbines, as measured below, at any lawfully existing flow, shall not exceed (a), between 7 and 2300 hours on any day, the greater of 37.5 dBL(A)9010 minutes, or 5 dB(A) above the quiet waking hours, day, time, background noise level at that property, or (b), between 2300 hours on any day and 07 hours on the following day. The greater of 43 dBL(A)9010 minutes or 5 dB(A) above the night hours background noise level at that property ...
"At the request of the local planning authority, following a complaint to it, the developer shall measure the level of noise emissions resulting from the operation of the turbines, in accordance with the methods recommended in section 2 on pages 102 to 104 of ETSU R 97. Wind speed shall be measured on site and referenced to a height of 10 metres. Where it is necessary to convert between measured wind speeds and the wind speed at 10 metre height, this conversion be shall be undertaken using the methodology to be agreed with the local planning authority. The terminal noise should be assessed and noted in accordance with the advice contained in sections 2.0 and 2.1 on pages 103 to 109 of ETSU R 97. The developer shall supply wind speed and direction data to, and at the request of, the local planning authority to enable it to evaluate measurements made by the developer and to satisfy the foregoing requirements of this condition."
26. There then followed detailed definitions of the phrases used in the condition which include:
"'Background noise level' means the background noise levels as reported in 9.5 to 9.8 of the environmental statement, volume 3."
27. Mr Forsdick submits that the condition is insufficiently precise and mistaken in its drafting for the following reasons.
28. First and principally, the background noise level "reported in figures 9.5 to 9.8" of the environmental statement is not to be taken as a reference to the so called "best fit line" as shown in figures 9.5 and 9.7 of the environmental statement, but would be treated, were the condition to be the subject of an enforcement notice as a reference to the scattered dots or crosses by which each measurement was noted on the graph.
29. Secondly, the reference to 5 dB(A) imports mistakenly a reference to transient noise, rather than to background noise.
30. Thirdly, the condition does not specify whereabouts on the windfarm wind speed and background noise level are to be measured.
31. Fourthly, although he, I think, concedes that this point adds nothing of significance to the earlier points, it is unsatisfactory to rely upon measurements taken by the developer to demonstrate that it may be in breach of this condition.
32. Again, the law on the interpretation of conditions is not in doubt. It is set out in paragraph 49 of the judgment of Mr Justice Sullivan in Carter Commercial Developments Limited v Secretary of State for the Environment  EWHC 1200:
"I accept Mr Morshead's submission that conditions should not be construed narrowly or strictly, nor should they be construed contra proferentes the local planning authority. Rather, they should be construed in a benevolent manner. Construing them in such a manner will mean that the court should be astute to ensure, if at all possible, that conditions are not so interpreted that they are imprecise and unreasonable."
33. Mr Brown for the Secretary of State and Mr Nardell for the developer both expressly submit and accept that the condition is to be read as if the baseline from which the 5 decibel uplift is to be measured is the best fit line drawn in a solid line on the two diagrams, and not the scattered dots or crosses.
34. Any planning officer, any planning inspector, any court construing condition 13, and in particular the definition of "background noise level" contained in it, would look at the two figures. He would see the scattered dots and crosses and, drawn through them at wind speeds of 4 metres per second up to 8 metres per second, a solid curve more or less through the middle of the dots or crosses. Above it, he would see precisely 5 decibels higher a dotted line, described as the "derived noise limit". Nobody construing this condition could construe it without reference to the two figures and to the features which I have identified. Those features would inevitably lead the person construing the condition to conclude that the baseline from which the 5 decibel increase was to be assessed was the solid best fit line. If not so, then the "derived noise limit" indicated by the dotted line 5 decibels above it would be without meaning.
35. Accordingly, applying Mr Justice Sullivan's observations to this condition, I conclude that there is no ambiguity, doubt or mistake in it in this respect. It is perfectly clear.
36. As to the second point, the exact meaning of 5 dB(A) may be a matter of debate, but the reader of the condition will have had his attention drawn to the ETSU guidance which itself uses 5 dB(A) as the appropriate measuring yardstick. Accordingly, no one could possibly be in any doubt that what the condition means is that in similar conditions, the noise level created by the wind turbines against the background level of noise should not raise it more than 5 decibels above the best fit line for any given wind speed.
37. Mr Forsdick's point that the point of measurement of noise and wind speed is not identified in the condition is correct. The condition leaves it to the developer to measure the level of noise emissions resulting from the operations of the turbines, in accordance with methods recommended in section 2 of the ETSU.
38. At pages 102 to 104, that part of the report sets out a detailed methodology for the procedure to be followed, in the event of a complaint. It, in my view, suffices for the purposes of establishing a viable method of measuring wind speed and noise.
39. As to Mr Forsdick's final point that it should not be for the developer to provide the measurements which will indicate whether or not it is in compliance with or in breach of the condition, it is a term of the condition that the developer shall measure the level of noise emissions by the method set out in pages 102 to 104 of the ETSU document. If it does not fulfil that obligation, it will be in breach of the condition and an enforcement notice can require it to undertake it. Although the procedure may be a little round about, there is in reality no alternative to reasonable cooperation between landowners affected by a complaint of excessive noise. Measurement by the developer is not an impermissible method.
40. Applying those considerations therefore to this condition, I am satisfied that it is sufficiently precise and is capable of enforcement upon a complaint by Mr Hulme, were the measured noise levels to exceed those permitted in the condition.
41. There is one final point which should be addressed and that is the fact that the measurements of background noise were taken in October, not in high summer when the brook was not flowing. The inspector did not specifically address this in his decision letter, but a moment's consideration can show that it was not in fact a relevant consideration. The upper limit imposed by the condition was 37.5 dB(A)s in daytime. If the background noise at its lowest and on a calm day were to be below 22 dB(A)s, then the expected increase in noise level produced by the wind turbines, according to the figures in the environmental impact statement and Dr Bullmore's own evidence, would fall well short of that upper limit. Accordingly, although the measurements were not apt to deal with a calm summer day, they had no bearing on the outcome.
42. Mr Forsdick submits that the inspector, in his general balance of material interests, should have looked beyond the installed capacity of the windfarm to the likely output. Only by doing so, he suggests, could a proper balance have been struck between the harm caused to the environment and in particular to Mr Hulme's circumstances, against the economic benefit. But the answer to that can shortly be given; both national and local plans require the input from windfarms to be assessed by reference to their installed capacity, rather than their anticipated output in practice. Accordingly, the inspector did not err in law in failing to ask himself that additional question.
43. For the reasons which I have explained, this decision contained no error of law, nor is it open to challenge on what can be termed "Wednesbury grounds", see Ashbridge Investments Limited v Minister of Housing and Local Government  1 WLR 1320.
44. This application must therefore fail.
45. MR BROWN: My Lord, I am very grateful. In the circumstances, I ask for the Secretary of State's costs in defending the matter. I don't know whether a cost schedules schedule has reached you.
46. MR JUSTICE MITTING: Yes, it has.
47. MR BROWN: My Lord, it is a one day hearing where the schedule has been exchanged in accordance with the procedure.
48. MR JUSTICE MITTING: Yes.
49. MR BROWN: I would ask your Lordship to summarily assess costs in the sum of £9,124.
50. MR JUSTICE MITTING: Mr Forsdick?
51. MR FORSDICK: Could I hear if there is any other application first?
52. MR JUSTICE MITTING: Yes.
53. MR NARDELL: My Lord, this is one of those cases, very often for a party in my client's position, it is more a hope than an expectation, given the strictures of Their Lordships in Bolton. But this is one of these cases where it might aptly be said, indeed it has in the Court of Appeal in not dissimilar circumstances, that this claim without the active participation of those I represent would be like Hamlet without the prince.
54. The way the case was put, particularly on those aspects of it that have evidently most troubled your Lordship, necessarily invited a response from those I represent, and an active participation in all stages.
55. Your Lordship has a discretion whether to award the whole or part of our costs or no costs at all. In this case it would be appropriate for at least some part, and in my submission properly the whole, of the interested party's costs in order to get the claim summarily assessed.
56. Does your Lordship have a costs schedule?
57. MR JUSTICE MITTING: What I have is a costs schedule from the claimant and a cost schedule from you, but I don't think I have a cost schedule from yes, I do.
58. MR NARDELL: Yes. It is in three parts, because the
59. MR JUSTICE MITTING: I have your costs schedule. What I have not got is the Secretary of State's. As you say, yours is in three parts.
60. MR NARDELL: It is, because of the range of fee earners involved. The grand total is £18,975,51, including VAT. In my submission, that compares favourably with the costs claimed by the claimant in this case. In my submission, (inaudible) costs for the third defendant.
61. MR FORSDICK: My Lord, I object most strenuously against the suggestion that there should be two orders for costs. First of all, the interested party has not got a separate interest in this case, as in the Bolton scenario. Secondly, my learned friend stood up and said he could add very little to Mr Brown's submissions, and that was always obvious. Thirdly, on the one question my Lord asked him, he did not have an answer; namely why on earth the interested parties did not provide the data. Fourthly, in light of the approach of Lord Justice Sedley, this is a matter where my clients were, I say, entitled to bring the unfairness brought upon them by the third defendant to the court's attention. In one sense, at least from my Lord's judgment, the third defendants brought this on themselves. My Lord held that
62. MR JUSTICE MITTING: I am aware of what I said, and I meant it.
63. MR FORSDICK: Yes. My Lord, it would be an abuse of the powers of this court to grant a second set of costs in this sort of situation. As to the Secretary of State's costs, I don't object as to principle or quantum.
64. MR JUSTICE MITTING: This is not an appropriate case in which to order the applicant to pay two sets of costs. This could have been dealt with simply by a response by the Secretary of State; and furthermore as Mr Forsdick has observed, the only criticisms that I have made in this case are of the attitude of the developer in failing to make disclosure of the raw material upon which the environmental impact statement was based.
65. As far as the Secretary of State's costs are concerned, Mr Forsdick accepts, as do I, that they should be paid by the applicant and that the sum claimed, £9,124, is reasonable. I therefore assess the Secretary of State's costs at £9,124 and order that the applicant pay that sum.
66. MR BROWN: My Lord, I am grateful.
67. MR FORSDICK: I now have the poisoned chalice, my Lord, of having to do the customary thing of having to ask for permission to appeal, just to preserve my
68. MR JUSTICE MITTING: Second appeal?
69. MR FORSDICK: It is not a second appeal.
70. MR JUSTICE MITTING: oh, it is an application, of course.
71. MR FORSDICK: It is an application for permission to appeal. I have to ask my Lord. I know what the answer will be.
72. MR JUSTICE MITTING: No. Well, the answer, I am afraid, will be that which you anticipated: no.
73. Thank you all for your submissions.