Impact on Norfolk Broads character correctly assessed in turbine appeal

A challenge to an inspector's decision (DCS No. 200-001-934) to grant permission for a 2MW wind turbine bordering the Norfolk Broads, was rejected by the Court of Appeal which ruled that there had been no error in applying the statutory duty under section 17A of the Norfolk and Suffolk Broads Act 1988.

The inspector had acknowledged that the turbine would be sited 800 metres from the boundary of the Broads and adjoining land which contained the claimant’s house. The inspector had concluded in applying the statutory duty under the 1988 act, that the proposed turbine would not harm the natural beauty of the designated Broads landscape nor conflict with the purposes of designation. Any adverse effects were not significant in policy terms and the noise impact could be controlled by conditions. It had also been concluded that the benefits of the scheme including the predicted electricity generation from a renewable source, outweighed the harm.

In challenging this decision the claimant asserted that it had not been open to the inspector to find that the scheme would conserve the natural beauty of the Broads given his conclusion that it would affect views from the nearest part of the protected area. Section 17A it was claimed created a presumption in favour of achieving its statutory purpose and against inflicting any harm to the natural beauty of the area. It was also suggested that the inspector had erred in his interpretation of development plan policies and in his conclusion that noise levels could be mitigated to acceptable levels.

Sir David Keen concluded that the inspector had taken into account the NPPF and had been entitled to conclude that the nearest parts of the Broads to the proposal had been characterised by the Broads Authority as not having a "Broads character". Despite concluding that the turbine would have significant adverse impacts within one kilometre of the site and in recognising that developments outside the designated area may have an impact on the protected area, the judge concluded that it was a matter of fact and degree and lay within the inspector’s planning judgement. The concept of a statutory presumption under s,17A was an unnecessary gloss on the statute where the statutory duty was clear.

The inspector had assessed various development plan policies and had determined which one should be given greater weight which was acceptable in law. The fact that he had given greater weight to a development management policy rather than one within an adopted within a core strategy, was not unreasonable. The inspector had clearly set out why he though the development management policy was more relevant and specific to the proposal before him. Additionally he had used his planning judgement to determine whether the proposed noise condition which had been agreed between the council and developer, was satisfactory and enforceable. And the benefits of the scheme in terms of electricity generation had also been properly understood, the court concluded.

Howell v Secretary of State for Communities and Local Government

Date: 19 November 2015

Ref: C1/2014/4276

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