High Court backs Kendal wind farm




Solicitor's Journal


Armistead Wind Turbines

The High Court has rejected an appeal by campaigners and farmers against a wind farm near Kendal in Cumbria, on a ridge of hills between the Lake District and Yorkshire Dales national parks.

Rejecting all six of the campaigners' grounds of appeal, George Bartlett QC, sitting as a deputy High Court judge, said it was "most unfortunate" that after many years of wind farm developments there were still no generic noise conditions for councils and planning inspectors to impose.
"The result is that resources have to be spent by developers, local planning authorities and objectors in agreeing, or disputing, what the noise conditions should contain; and, on appeal, inspectors have to devote time at the inquiry and afterwards in resolving the matter," he said.

"And then there can be challenges to the conditions that are imposed, as has happened here. Unsurprisingly appeal decisions come up with different answers, as I was shown, and the scope that there is for inconsistency in this respect is obviously undesirable."
Giving judgment in Barnes and Barnes v Secretary of State for Communities and Local Government and Ors (9 July 2010), Judge Bartlett said the development, known as Armistead wind farm, would be located on a ridge of low, rounded hills near the M6.

The court heard that Brian and Rebecca Barnes, who raise sheep and cattle on their farm, lived in one of the two houses most affected by the proposal, Gilsmere Nook.
"The nearest turbine would be just over 600m from their house," Judge Bartlett said. "Their land, on which they raise sheep and cattle, would at its nearest point be little over 100m from the turbine."

The planning application was refused by South Lakeland District Council, but overturned on appeal.
"In his decision the inspector said that the decision turned on the balanced judgment that had to be made between the benefits of renewable energy production and the adverse effects on the landscape and people in the surrounding locality. 
"He concluded that whilst some significant adverse effects would exist, including the visual impact on Mr and Mrs Barnes's house and another property, overall the effects would be quite limited in extent."

Judge Bartlett said there was no need for a condition limiting the size of the turbines, because it would not be open to the council to approve turbines significantly different from those featured in the planning application.
He rejected suggestions of procedural unfairness, resulting from the withholding of wind speed data and three further grounds relating to noise.

Judge Bartlett said the impact of the turbines on those working in the fields nearby had been considered by the planning inspector and rejected a final argument based on the safety risk to people working and children playing 100 metres away.

He dismissed the application, under section 288 of the Town and Country Planning Act 1990, to have the planning permission quashed.