A wind farm operator has lost an appeal against a decision by Welsh Ministers to block construction of an 18-turbine facility in south Wales.
His Honour Judge Jarman KC heard in the High Court that Y Bryn Wind Farm challenged the Welsh Ministers under section 288 of the Town and County Planning Act 1990.
The company wanted to build the 18 turbines, at heights of up to 250 metres, with new access tracks and highway junctions between Port Talbot and Maesteg and with an overall capacity of up to 129.6 MW, sufficient to supply the annual electricity of some 85,700 average homes.
But the planning inspector concerned concluded that while the proposal would bring significant benefits in renewable energy production, it would have an unacceptable adverse impact on landscape character and visual amenity, including the statutory landscape designation of the Gower National Landscape and various other special areas.
Y Bryn advanced five grounds of challenge. It said the decision was procedurally unfair, misinterpreted national policy, was inconsistent with previous decisions, and erred in considering both landscape and heritage impacts.
HHJ Jarman dismissed all these grounds. He said the inspector’s procedure had been fair and it was for the inspector to weigh up the benefits of the off-setting measures in the claimant’s plan.
He said Y Bryn submitted the inspector should have taken the project’s benefits into account in assessing whether the harm was unacceptable, rather than carrying out that assessment and then going on to weigh up the benefits..
The judge said: “In my judgment that is the context in which the inspector proceeded to assess whether there was unacceptable harm as he was required to do against the criteria set out in policy 18.
“If the conclusion were that there was no such harm, then policy directs that the proposal should be permitted. Having found that there would be such harm, however, then the inspector went on the weigh up the harm against the undisputed benefits. It is not suggested he should not have taken these into account. What is submitted on behalf of the claimant is that he should have done so in his assessment of whether there was unacceptable harm.”
He added: “I do not accept that submission. In my judgment that was not only a permissible approach but a proper one.”
Y Bryn’s argument on inconsistency “can be dealt with briefly” as it concerned claims the inspector had used the words ‘considerable’ and ‘significant’ to have different means when assessing benefits and harms.
HHJ Jarman said: “In my judgment this is to read the respective reports in a way which is over legalistic and without the benefit of benevolence.”
The allegation that the inspector took a flawed approach to landscape impacts claimed he dealt with tranquillity and did not explain which landscape qualities would be affected or how. HHJ Jarman said the inspector had had regard to the natural, historic and built environment.
Turning to the alleged flawed approach to heritage, HHJ Jarman said the inspector was entitled to conclude the overall heritage balance attracted minor weight which on its own would not justify withholding permission.
He had then dealt with the registered historic landscape, where the overall significant adverse impact would result in a visual change to the setting of regionally and nationally important heritage assets to the detriment of the heritage value of the landscape.
“His reference to collective unacceptable impacts is in this context,” HHJ Jarman said.
The judge concluded: “Accordingly, notwithstanding the long list of errors which the claimant maintains the inspector made, which by their acceptance of his report were adopted by the Welsh Ministers, in my judgment reading the report fairly as a whole and with the required degree of benevolence, none of the grounds is made out.”
Mark Smulian
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