R (Finn-Kelcey) v. Milton Keynes Council

Transcript date:

Thursday, July 17, 2008

Matter:

Court:

High Court

Judgement type:

Permission and Substantive

Judge(s):

Collins J

Transcript file:

Notes:

Wind farm dispute about wind data not being made available to objectors. At rolled up hearing for judicial review permission refused. Permission to appeal application lodged with Court of Appeal.

Neutral Citation Number: [2008] EWHC 1650 (Admin)

Case No: CO/3454/2008

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17 July 2008

Before:

Mr Justice Collins

Between:

Andrew Finn-Kelcey
Claimant

- and -
Milton Keynes Council
Defendant

- and -
MK Wind farm Limited
Interested Party

(Transcript of the Handed Down Judgment of

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Mr Paul Brown (instructed by Richard Buxton Environmental & Public Law) for the Claimant

Mr David Forsdick (instructed by Head of Legal Services, Milton Keynes Council) for the Defendant

Mr John Litton (instructed by Burges Salmon LLP) for the Interested Party

Hearing dates: 3 July 2008

Judgment

As Approved by the Court

Crown copyright©

Mr Justice COLLINS :

1. Wind farms attract vigorous opposition and support. Those who support them believe that they are a valuable means of helping to avoid the damaging effects on the environment of other energy providers. Some even suggest they are attractive. The government has made it clear in a White Paper of May 2007 that renewable energy projects (which include wind farms) are ‘key to our strategy to tackle climate change and deploy cleaner sources of energy' and that its target is to see such projects increase so that by 2010 they constitute 10% of electricity supplies in this country. Those who oppose them usually do so because of a concern for their effect on the landscape on a particular proposed site. They are intrusive and noisy and must be sited where they do not have such negative effects. Furthermore, it is essential that there is sufficient wind speed to achieve the necessary efficiency.

2. The claimant in this case owns land and tenanted properties which are bound to be affected by the wind farm. He is a member of an organisation calling itself Bucks Lacks Enough Wind (BLEW). As the name suggests, BLEW's main concern is that wind farms in the area are not sensible since there is insufficient wind power to make them economic and so to counteract their negative effects on the landscape and in particular on those who live near them. Planning permission for the development was granted by the defendant on 14 January 2008 following a meeting of the Special Development Control Committee on 17 December 2007 which, by a vote of 6 to 5, determined that such permission should be granted. The delay until 14 January was due to a motion by a councillor who opposed the grant of permission to the full Council to rescind the grant on the ground that the Committee was ‘provided with evidence that was inaccurate, incomplete and potentially biased which lead to an incorrect interpretation of the facts'. That motion was rejected by the full Council on 8 January 2008.

3. This claim was lodged on 10 April 2008. One of the matters raised by the interested party was delay: it was submitted that the claim had not been made promptly. There was also an application that the matter should, if permission was not to be refused on the papers, be dealt with expeditiously. On 3 June 2008 Simon J ordered that there be a ‘rolled-up permission and substantive hearing' as soon as conveniently possible. In those circumstances, it came before me on 3 July 2008. Because of the relatively short time since the claim was lodged, some evidence was served late since issues were raised which needed additional evidence. However, it was not suggested that any party was seriously disadvantaged or that all material points could not be properly developed before me.

4. Three main grounds were relied on by the claimant. First, it was said that the wind speed data relied on to support the environmental statement produced by the interested party (IP) and considered by the external consultants engaged by the defendant was not disclosed to the claimant or, indeed, to the committee which considered the planning application on 17 December 2007. This was not only a breach of the Town & Country Planning (Environmental Impact Assessment) Regulations 1999 as amended (SI 1999 No. 293) but also of the rules of natural justice inasmuch as material was available to and relied on by the Council but the claimant and BLEW as objectors were not provided with it.

5. Secondly, it is said that inaccurate advice which misconstrued the guidance given in PPS22 (containing the government's view of the correct approach to renewable developments) was contained in the officers' report to the committee. It is said that the advice wrongly indicated that it would be irrelevant that the amount of energy which would actually be provided was less than that which was relied on by the IP.

6. Thirdly, it was submitted that the committee wrongly declined to visit various viewpoints which they were specifically requested to visit in order to gauge the impact of the development. They thus failed to take a relevant matter into account and further, the reasons given for granting permission in relation to the impact on the landscape were inadequate and unintelligible.

7. The application in question was for the construction of a wind farm comprising seven wind turbines up to 125 metres in height and associated equipment which would have a life of 25 years. Permission had been granted in 2004 for the construction of an anemometry mast some 50 metres high in order to record the wind speed data at the site in order to enable the IP to ascertain whether the construction of a wind farm on the site would be an economically sensible proposition. It was said that the farm would have a total installed capacity of between 14 and 21 megawatts which would provide the average annual electricity needs of between 6,780 and 9,000 homes, namely between 7% and 9.3% of homes in the area of the defendant. The application was necessarily accompanied by a substantial Environmental Statement. The defendant decided that it should employ expert consultants and chose White Young Green (WYG) who have considerable expertise in connection with wind farms. It was at one time suggested by the claimant's solicitors that WYG was unsuitable because they acted for wind farm developers. They have done, but also for opponents. The suggestion that they were unsuitable has not been pursued in the claim. Further, WYG were able to use the services of their technical experts to evaluate the evidence produced by the IP and the objectors and were satisfied that the evidence relied on by the IP was generally accurate and so the figures presented were reliable.

8. In April 2007, a letter was sent to the IP requesting further information following an audit of the environmental statement. The request was made pursuant to Regulation of 19 of the 1999 Regulations. So far as material, this provides (as amended by 2006/3295 Regulation 13):-

"(1) Where the relevant planning authority ... is dealing with an application ... in relation to which the applicant ... has submitted a statement which he refers to as an environmental statement for the purpose of these Regulations, and is of the opinion that the statement should contain additional information in order to be an environmental statement, they ... shall notify the applicant ... in writing accordingly, and the applicant ... shall provide that additional information' and such information provided by the applicant ... is referred to in these Regulations as "further information".

(4) The recipient of the further information or any other information shall send a copy of it to each person to whom, in accordance with the Regulations, the statement to which it relates was sent.

(7) Where information is requested under Paragraph (1) or any other information is provided, the relevant planning authority ... shall suspend determination of the application ... and shall not determine it before the expiry of 14 days after the date on which the further information or any other information was sent to all persons to whom the statement to which it relates was sent or the expiry of 21 days after the dates that notice of it was published in a local newspaper, whatever is the later."

"Any other information" is defined in Regulation 2(1) to mean:-

"... any other substantive information relating to the environmental statement and provided by the applicant ..."

9. The 1999 Regulations were passed to implement Directive 85/EEC. Article 6 of the Directive contains provisions which require the public to be informed of and have made available to them the information which has to be contained in an Environmental Statement. Article 5 requires the provision of an environmental impact assessment in respect of inter alia developments such as that with which this case is concerned. Article 6(3) provides that information gathered pursuant to Article 5 shall be made available to the public concerned within a reasonable time frame. The obligation is to make such information available and Regulation 19 goes further than that since it provides for the sending of a copy of it (usually in the form of the statement and any additional statement produced as a result of a request for further information) to the public concerned. But the applicable law for domestic purposes is that contained in the Regulations since Member States are entitled to implement Directives in a way which goes further than their requirements.

10. The request did not specifically include the wind speed data. However, by letter of 3 August 2007 the IP enclosed copies of Supplementary Environmental Information (SEI) provided in answer. There were 50 hard copies and 5 CDs. The second paragraph of the letter reads:-

"The CD also contains the wind data file documents and the noise measurement data file documents, which are not printed as they are vast and considered to be only really useable in their electronic form. You are free to copy these CDs, if you are required, as part of the wind farm application process."

The second sentence was material because previously the IP had expressed reluctance to provide the wind speed data for public consumption on the ground of confidentiality.

11. Unfortunately as it turns out, the council officer concerned, Peter Joel who has since retired but was then the Development Control Team Leader North, did not put this letter on the public files but on his working files. Representatives of BLEW had been requesting the wind speed data for some time. They received a hard copy of the SEI but not the CD. They inspected both the public and Mr Joel's working files on a number of occasions. At no time did they find the letter and the last investigation was in January 2008. It is suggested that Mr Joel cannot be correct in saying that he put a copy on his working files. There is no particular reason why he should not have kept the two files - the SEI, for example, would have to be disclosed to the public, the letter would not unless anyone specifically wished to inspect all the relevant documentation. It is said that there was other evidence of documents that should have been on a file not being there for some appreciable time. Thus it may be that the letter was not put on the file when it should have been. I am in no position to resolve the issue and no counsel suggested that there was a need for evidence to be tested. Suffice it to say that I have no reason to doubt the honesty of either side and can only assume that the letter's significance was missed or that for whatever reason it was not on the file when the inspections took place. Mr Peter Geary (whose wife is councillor Brock) was one of those who inspected the files. He says that he would have expected any wind speed data to be in electronic form and that ‘no compact discs, or indeed any other materials indicating the presence of, or containing wind speed data were to my knowledge ever produced to us'. He also says that he is sure that those searching the files would not have missed the letter of 3 August 2007 or failed to appreciate its significance if it had been on the file.

12. A hard copy of the SEI went to BLEW. It referred to the areas in respect of which requests had been made in tabular form. Under the heading ‘Noise' reference was made to the request for the calculation tables which were compiled in order to establish the cumulative noise levels at each receptor. On the other side of the table, this is said:-

"The raw wind data is shown graphically in Appendix N. The raw data is vast and has not been reproduced in the printed Appendix. The excel data sheets are available in the electronic version or on request."

Appendix N contains a number of graphs headed ‘base line noise data'.

The claimant says, in the light of this, that it was not appreciated that the raw wind data was that obtained by the anemometer: it was believed it related only to data obtained at the noise receptors, particularly as the graphs refer to a height of 10 metres. That is why the 3 August letter was so important. However, it may be that, if the view was taken that the raw wind data was not relevant, the reference in the letter would not have taken the matter any further.

13. There is no doubt that the Council were aware that BLEW had not received or appreciated that the CD contained the necessary data since in its submissions to the Council in October 2007 it said:-

"The proposed site has low average wind speeds (6.3 m/s @ 50m) that make it marginal for wind farms and the applicant refuses to release the data recorded by their anemometer mast despite many requests."

14. On 15 December, two days before the meeting, the IP was contacted by Mr Lockley of Friends of the Earth (who were one of some 1558 supporters of the application as against 272 opponents) who told their senior development manager, Mr Townsend, that he had been speaking to a councillor on the committee who had said he had not seen the raw data. Mr Townsend informed Mr Lockley of the true position and Mr Lockley told the councillor the information was available because it had been sent to the council in good time and forwarded the data to him electronically. Mr Clark told the meeting that he had the data provided to him the evening before but he had been unable to study or assess it carefully. It is thus apparent that the committee was aware of the material's existence at its meeting and that it had been considered by WYG but no steps were taken to adjourn consideration of the application.

15. It is conceded by Mr Forsdick (although Mr Litton did not concede the point, he did not make any submissions to the contrary) that there was in the circumstances a breach of Regulation 19(4) in the failure to send the CD to BLEW or to refer to it specifically in a local newspaper. Mr Brown submits that in the circumstances Regulation 19(7) applied so that permission could not lawfully be given. That is undoubtedly a powerful argument. Nevertheless, it is important to bear in mind that the regulation goes further than the Directive so that there would be no breach of the Directive provided that the data was made available. Thus this case is to be distinguished from Berkeley v Secretary of State [2001] 1 A.C. 603 for in that case there was a failure to comply with the Directive. The point made by Lord Hoffmann was that the information had to be in a statement to be made public and it was not permissible for ‘Member States to treat a disparate collection of documents produced by parties other then the developers and traceable only by a person with a good deal of energy and persistence as satisfying the requirement to make available to the public ‘the relevant information which should have been provided by the developer.'

16. In this case there was one other piece of information provided by the developer. The first question I must ask is whether it was available. Mr Brown submits it was not since it was not apparent on the face of the SEI that the data related to that obtained by the anemometer. Mr Forsdick submits that, since BLEW was interested in wind speed data, it should have been obvious that the CD containing such data ought to be obtained. The officers' report to the committee nowhere suggested that the data was not available and it would have been difficult for WYG to approve the forecasts without having seen it. Indeed, it was made clear that WYG had seen it. Further, BLEW was aware on ‘or immediately after 17 December 2007 (Councillor Brock being married to one of its members) that the Council had received the information and could have obtained it before the meeting of the Council on 8 January to obtain, albeit in a short time scale, a view as to its reliability. BLEW had in fact instructed an expert who had based his opinions on data obtained from the nearest meteorological station. That was rejected by WYG.

17. There can be no doubt that the IP did all it should in providing the information to the Council. The Council failed to comply with its statutory duty under the Regulations, but I am satisfied that in all the circumstances, particularly having regard to the disclosure at the committee of the position and the failure of any of BLEW's supporters to act on it at the time or at the meeting of 8 January, there was no unfairness to BLEW. Further, I am satisfied that the information was made available in that the CD was available as part of the SEI albeit BLEW chose not to obtain it. Mr Brown drew my attention to the Environmental Information Regulations 2004 (SI 2004 No. 33917 which require environmental information held by it to be progressively made available to the public by electronic means which are easily accessible and to take reasonable steps to organize the information relevant to its functions with a view to the active and systematic dissemination to the public of the information: Regulation 4(1). Similarly, such information must be made available on request, Article 5(1). This is a general provision not specifically aimed at information in a statement produced for the purpose of a planning application, which is covered by the 1999 Act. Nevertheless, the words of Regulation 4(1)(b) in particular, seem wide enough to comprehend such information. Mr Brown submits that this shows a positive duty to take steps to ensure that such information is received and that it should not be left to members of the public to trawl through files to find what they have requested. I do not think that the duty in reality extends beyond the need to make the information available and whether it was available will depend on the circumstances of a particular case. In this case, I think it was.

18. I have, even though there was a breach of the Regulations, to consider whether relief should be given in the exercise of my discretion. The test is whether in all the circumstances the decision could have been different. Mr Brown in the context points to the 6 to 5 vote in favour. He argues that the amount of electricity which could be generated was of importance since the balance between the advantages and disadvantages had to be considered on a proper basis. Mr Litton drew my attention to the claimant's expert's report based on the data (which was not obtained or requested by the claimants' solicitors until 19 May 2008). Suffice it to say that I am satisfied that his methodology is unsatisfactory in that he continues to rely on the approach he adopted in his earlier report based on the data from the meteorological station. The committee would not properly have been advised or believed that there were as a result of his reporting flaws in the views expressed by WYG. Thus, even if the data was not available, the claimant was not prejudiced since it could have made no difference to the result. Further, as will be seen, the reasons given for granting permission make it clear that the committee formed the view that there was no detrimental impact on the landscape. This conclusion, which I am not prepared to go behind, means that the wind speed data could not have made any difference.

19. I turn to the second ground. The relevant principles in PPS22 are as follows:-

"1. Regional planning bodies and local planning authorities should adhere to the following key principles in their approach for renewable energy:

(i) Renewable energy developments should be capable of being accommodated throughout England in locations where the technology is viable and environmental, economic, and social impacts can be addressed satisfactorily.

(ii) Regional spatial strategies and local development documents should contain policies designed to promote and encourage, rather than restrict, the development of renewable energy sources. Regional planning bodies and local planning authorities should recognise the full range of renewable energy sources, their differing characteristics, locational requirements and the potential for exploiting them subject to appropriate environmental safeguards.

(iii) At the local level, planning authorities should set out the criteria that will be applied in assessing applications for planning permission for renewable energy projects. Planning g policies that rule out or place constraints on the development of all, or specific types of, renewable energy technologies should not be included in regional spatial strategies pr local development documents without sufficient reasoned justification. The Government may intervene in the plan making process where it considers that the constraints being proposed by local authorities are too great or have been poorly justified.

(iv)The wider environmental and economic benefits of all proposals for renewable energy projects, whatever their scale, are material considerations that should be given significant weight in determining whether proposals should be granted planning permission.

(v) Regional planning bodies and local planning authorities should not make assumptions about the technical and commercial feasibility of renewable energy projects (e.g. identifying generalised locations for development based on mean wind speeds). Technological change can mean that sites currently excluded as locations for particular types of renewable energy development may in future be suitable.

(vi) Small-scale projects can provide a limited but valuable contribution to overall outputs of renewable energy and to meeting energy needs both locally and nationally. Planning authorities should not therefore reject planning applications simply because the level of output is small.

(vii) Local planning authorities, regional stakeholders and Local Strategic Partnerships should foster community involvement in renewable energy projects and seek to promote knowledge of and greater acceptance by the public of prospective renewable energy developments that are appropriately located. Developers of renewable energy projects should engage in active consultation and discussion with local communities at an early stage in the planning process, and before any planning application is formally submitted.

(viii)Development proposals should demonstrate any environmental, economic and social benefits as well as how any environmental and social impacts have been minimised through careful consideration of location, scale, design and other measures."

They were drawn to the committee's attention in the report. Reference was made to WYG's expert's conclusions (which incidentally show that he had had access to the wind speed data) and the report continued:-

"In summary his conclusions are that:

ii) The data on wind speed monitoring over time supplied by the applicant is reasonable with accepted methodologies being employed.

iii) The methodology (including the software) used to predict likely electricity production by the applicants is both sound and reasonable.

iv) There are a number of erroneous and misleading arguments made in the reports for both Mr Sinclair and Dr Constable in respect of energy production and the role of wind power generally (these are alluded to further below).

On the basis of the evidence provided (both for and against) White Young Green's Principal Energy Consultant is more inclined to believe the applicants' figures relating to the energy production forecasts arising from the proposal. In reviewing the objectors critique predicted electricity outputs, it is important, to bear in mind government policy advice PPS22 that:

i) Local Planning Authorities should not make assumptions about the technical or commercial feasibility of renewable energy projects: and

ii) That small scale projects can provide a limited but valuable contribution to overall outputs of renewable energy and to meeting energy needs both locally and nationally and that planning authorities should not, therefore reject planning applications simply because the level of output is small.

It is therefore important to note that even if the applicants' claims regarding the amount of energy production prove to be exaggerated, there is no reasonable basis to refuse the application on those grounds. The relevant point is the extent to which the claimed benefits of the proposal in this respect can be weighed in the balance against the collective disadvantages."

Mr Brown recognises that if the adverb 'simply' was included in the first sentence of the last paragraph, he would have no complaint. But in context it was, since it followed from the reference to ii) of the advice. And the last sentence clearly applied the right test for the committee.

20. It is also to be noted that under the heading ‘Community benefits' the report states:-

"In summary, we conclude that the proposed development will bring with it substantial benefits in terms of both a contribution to electricity production through renewable resources and a contribution towards a reduction in the emissions that contribute towards global warming. Even if the level of contribution of the proposals in respect of these considerations is less than the applicants suggest, these are still benefits which must be weighed in the balance against the perceived disadvantages of the proposal. In addition there is uncontested information about the potential benefits of job creation and investment in the local economy, these are also material benefits. It is considered that the suggested benefits associated with tourism and use of the facility as an educational resource are, in this case, likely to be relatively low key. The suggested community benefits, in the form of monetary contribution towards nominated community projects, is a benefit, but one which should not be used to tip the balance in terms of the decision on the planning decision. "

It then went on to identify the perceived disadvantages. It concluded with a recommendation to approve the application but advised that, if it reached a different conclusion on the impact of the proposal on the Ouse Valley Area of Attractive Landscape and was minded to refuse, it should give the reasons set out. This approach was if anything favourable to the objectors since the committee was not being advised that, even if minded to consider that there would be (contrary to the officers' advice) such an adverse impact, the committee would nevertheless be entitled to approve the application if on balance they thought the advantages outweighed their adverse impact. But it is necessary to identify the reasons given for the grant. These were:-

"The planning application has been determined, taking into account relevant Development Plan policies, national planning policies and all other material considerations and addressing the balance of benefits and disadvantages associated with the proposal. The proposal, on balance, is not regarded to have a detrimental impact on ecology and wildlife habitats, cultural heritage, highway/air safety, residential amenity or landscape character and the enjoyment of the countryside. The proposal is considered to make a contribution to electricity production for households within the authority area and will contribute to the goal of reducing CO2 emissions set out in the Energy White Paper. Issues were raised over the extent of CO2 reduction and energy production that would be apparent in comparison to the scale of development proposed and it should be understood that relevant planning policy relating to this development states that there is no reasonable basis to refuse an application for renewable energy on the basis that it does not meet a particular level of polluting gas emission reduction or energy production. In addition there are benefits of job creation and investment in the local economy."

No detrimental impact was on balance regarded as resulting from the development. Thus in considering the PPS22 principles, there were no adverse impacts. It is obvious that the IP would not have pursued the application unless satisfied that it would provide value for money and be economically viable. I appreciate that there were grants available from the government, but it was proper for the Council to have regard to this in determining the application.

21. The third ground I can deal with briefly. The committee members had the opportunity of viewing the site and were requested to visit various points. They all had photomontages and some at least would have had personal knowledge of the area. It was decided that it was not necessary to go to the viewpoints which had been requested. That decision was in the circumstances reasonable since, the members were entitled to conclude that they had sufficient information without doing so.

22. It was suggested that the reasons for grant did not make clear whether there would be no detrimental impact or whether such detrimental impact as there was would be outweighed by the advantages. This focuses on the words ‘on balance'. I see no ambiguity. All it means is that the committee has considered the advantages and disadvantages and concluded that there was no detrimental impact.

23. I should add that Mr Brown referred me to notes taken at the 17 December meeting which record a councillor saying:-

"Impact on Area of Alternative Landscape - such an impact to turn down? Minded on balance to vote for."

This is said to indicate that there might have been a change if for example there had been a view or a change of emphasis because of the wind data. I do not think that anything can be read into such a note save that that councillor was concerned to decide whether there was in truth such an adverse impact so that, in accordance with the approach suggested by the report, the application should be refused.

24. Finally, I must consider delay. On 7 January 2008, the claimant's solicitors wrote a letter in very general terms raising the possibility of judicial review. Nothing further was heard until a pre-action protocol letter of 26 February 2008. This was replied to by the Council (who were the defendants, not the IP) on 14 March but the claim was not lodged until 10 April 2008. Expense which would not otherwise have been incurred was incurred by the IP in January and February and there is no doubt that they would be prejudiced if this claim were to succeed. Mr Brown submits that they were aware from the letter of 7 January that there was a possibility of judicial review - indeed the letter was written in very positive terms - and so should not have incurred irrecoverable expense. He submitted that if a claim had been lodged by 15 February it could not have been claimed that it had not been made promptly.

25. The need for expedition is of particular importance in challenges to grants of planning permission. The recipient is prima facie entitled to implement the permission. In this case, as ought to have been appreciated, the government target for 2010 was relevant so that the development needed to be undertaken as quickly as possible. Three months is not to be regarded as a time limit which will prevail in all circumstances. It is important that at the very least a claimant demonstrates that he is serious at a very early stage and then goes ahead with due expedition. That in my view did not happen in this case. It is suggested that there was much work to be done to assess whether a claim should be brought and what grounds should be relied on. But the alleged failure to make the wind speed data available, the alleged errors relating to the approach to PPS22 and the refusal to go to the viewpoints coupled with the alleged ambiguity of the reasons were all easily identifiable. I do not think it was in the circumstances reasonable to wait until 10 April, nearly 3 months after the formal grant, particularly as it was known from 17 December that such grant was likely to be made. To wait for almost a month after the response to the pre-action protocol letter was wrong, even though no specific indication of prejudice was raised.

26. While it may be that to refuse permission on the ground of delay is unnecessary in the light of my decision that the claim must in any event fail, I think that it should follow. It makes little difference in the result save that any appeal has to be made within 7 rather than 21 days. That is I have no doubt desirable where any further delay would be disastrous for the IP since they have to commit themselves to a payment of £750,000 by 8 July to enable the project to go ahead in reasonable time.

27. I accordingly refuse permission.