PINS NOTE 23/2015R7 To: All Inspectors; Customer Services; All Staff (England) Relevancy: Applies to Planning and Called-In Casework Involving Onshore Wind Turbines

PINS NOTE 23/2015r7 To: All Inspectors; Customer Services; All Staff (England) Relevancy: Applies to planning and called-in casework involving onshore wind turbines. Date of Issue: 18 June 2015 Currency: review at 6 months after issue Last update: 13 January 2017: Paragraph 10 updated to refer to the Secretary of State’s latest appeal decisions, and guidance added regarding the suggested approach to take. New SoS decisions added to Annexe E. Reference made to Holder v Gedling BC [2016] EWHC 3095 (Admin) regarding the application of the WMS in decision-taking.

LOCAL PLANNING (Written Ministerial statement regarding onshore wind turbine development)

Action 1. The Secretary of State has today published a Written Ministerial Statement (WMS) entitled ‘Local Planning’ (18 June 2015), together with a DCLG press release. The WMS sets out new considerations to be applied to proposed wind energy development so that local people have the final say on wind farm applications. 2. Subject to the transitional provision set out in paragraph 3 below, these considerations will take effect from the date of issue [18 June] and should be taken into account in planning decisions with immediate effect. When determining planning applications for wind energy development involving one or more wind turbines, local planning authorities should only grant planning permission if:

 the proposed development site1 is in an area identified as suitable for wind energy development in a Local or Neighbourhood Plan; and

 following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.

3. The transitional provision applies when a valid planning application for a wind energy development has already been submitted to a local planning authority and the development plan does not identify suitable sites. In such instances, local planning

1 Suitable areas for wind energy development will need to have been identified clearly in a Local or Neighbourhood Plan. Maps showing the wind resource as favourable to wind turbines, or similar, will not be sufficient.

authorities can find the proposal acceptable if, following consultation, they are satisfied it has addressed the planning impacts identified by affected local communities and therefore has their backing. 4. The WMS is supported by a number of consequential changes to the planning practice guidance on renewable and low carbon energy. 5. Inspectors should note that the WMS is the most recent expression of government planning policy for onshore wind development, which will be a material consideration in determining wind turbine proposals including decisions taken on appeal. Inspectors should note that the Secretary of State applied these provisions in his decisions listed at Annexe E. 6. The courts2 are clear about the importance of consistency in planning decisions, both for the sake of the parties and for confidence in the operation of the planning system. They stress that while it is important for decision-takers to exercise their own judgment, they would need to give clear reasons if they are to take a different approach from that taken in a previous decision. Failure to do this could itself give rise to legal challenge. Recent decisions make clear that this principle applies not only to questions of facts (eg similar types of development in neighbouring areas) but also to broader questions such as the interpretation and application of policy. The recent decisions of the Secretary of State fall into this category. 7. The law on whether a previous planning decision must be taken into account, was established in the 1993 Judgment by Mann LJ in North Wiltshire v SoS for the Environment (see extracts at Annexe D). 8. In the appeal by REG Windpower at French Farm [2220136] the Secretary of State concluded that the planning issues identified by local communities had not been addressed. He reached this conclusion following a finding by the Inspector that the proposed development would have a significant adverse effect on landscape and on the visual amenities of some residents. Even though the Inspector had concluded that those impacts were limited to the local area and would not result in the residents’ dwellings becoming unattractive or unpleasant places to live, the Secretary of State noted that because those impacts remained, and residents continued to object to the proposal, he was not satisfied that the impacts had been addressed. 9. The fact that the objections remained outstanding was therefore of great importance in that case, though it is worth noting that this was not a case where the impacts had been found to be negligible or adequately mitigated. Nor was it a case where it was considered that the objections were very few or isolated, such as they could not be considered to amount to impacts identified by “the community”. 10. Inspectors will note the Secretary of State’s approach to the application of the transitional provisions in his appeal decisions listed at Annexe E. These decisions are his most recent application of the WMS and, depending on the particular circumstances of the cases before an Inspector, may well be a material consideration to be taken into account by Inspectors. Having natural justice considerations in mind, if explicit reliance is to be placed on another decision the Inspector will need to consider whether s/he should ask the parties to comment on any implications of that decision for the current appeal. 11. It was held in Holder v Gedling BC [2016] EWHC 3095 (Admin) (a case expressly concerned with the transitional provision referred to in paragraph 3, above) that

2 St Albans Council v SSCLG & Helioslough & Herts CC [2015] EWHC 655, 13 March 2015

howsoever trenchant the articulation of policy in a policy statement was or might appear to be, this could never serve to disqualify or prevent a decision-taker from exercising its own legitimate discretion as a matter of administrative law pursuant to section 38(6) of the Planning and Compulsory Purchase Act 2004. Therefore, the fact that the WMS stated that "local people have the final say" was not, and could not, be justification for attributing decisive weight to the particular views of particular local people and thereby fettering the decision-takers discretion. Background 12. The renewable and low carbon energy section of the planning practice guidance has been updated as follows:  Paragraph 2 – inserts new text to explain the intended changes to devolve power to LPAs for all planning applications involving wind turbines.  Paragraph 5 – inserts new text to make clear that in the case of wind turbines, a planning application should not be approved unless the proposed development site is an area identified as suitable for wind energy development in a Local or Neighbourhood Plan.  Paragraph 14 – inserts a new consideration when determining applications for wind turbines ‘Do local people have the final say on wind farm applications?’  New paragraph 32 inserted – New question ‘How is ‘suitable areas’ defined in relation to wind energy development?’ and inserts accompanying text on the requirement for ‘suitable areas’ to be allocated clearly in a Local or Neighbourhood Plan – maps showing favourable wind resource will not be sufficient.  New paragraph 33 inserted – New question ‘Do local people have the final say on wind farm applications?’ and it inserts accompanying text to make clear that planning permission will only be granted if i) development site is in an area identified as suitable for wind energy development in a Local or Neighbourhood Plan, and ii) following consultation, it is demonstrated that the planning impacts identified by the affected local communities have been fully addressed and therefore has their backing. Also makes clear that whether the proposal has the backing of the affected local community is a planning judgment for the LPA. 13. Inspectors will wish to ensure that the weight they give to the WMS is consistent with the government’s intentions, and that progress is maintained in the decision-making process without allowing any significant unnecessary delay. Advice on the handling of appeals [and called-in] casework is at Annexe A. Advice concerning Local Plans casework can be found at Annexe B. 14. The government is planning to remove new onshore wind farms above 50MW from the consenting regimes in the Planning Act 2008 and the Electricity Act 1989. The effect of this will be that new applications for onshore wind farms in England and Wales will need planning permission through the Town and Country Planning Act 1990 and, in England, applications will need to be submitted to local planning authorities. DECC have also announced the intention to end new subsidies for onshore wind farms through the Renewables Obligation (RO). Primary legislation will be laid to close the RO to new onshore wind farm applications from 1 April 2016. 15. Please contact XXXX if you have any queries on this Note generally and XXXX if it relates to a specific appeal casework matter or XXXX for Local Plan matters. Non Salaried Inspectors (NSIs) should contact XXXX initially for general queries on this Note, or the GM concerning possible quality assurance reading or the need to re-open an event or refer back to the appeal parties. 3

XXXX Head of Inspectors / Group Manager (Planning)

Annexe A APPEALS, CALL-INS

Before a case file is sent to the Inspector, for an interim period case officers will alert the main parties3 of the need to consider the implications of the WMS in their representations on already submitted appeals and request those are provided within 14 days in normal circumstances. To facilitate this for all cases not with the Inspector a letter has been produced to be sent by Case Officers – reproduced at Annexe C. It is anticipated, however, that appeal parties will rapidly assimilate the contents of the WMS so this will be a short-term measure. Case officers will be instructed not to turn away representations on this specific matter as “late”. Where a site visit, Hearing or Inquiry is yet to be held or is sitting Inspectors are advised to accept evidence or submissions on the policy change at the event or as written representations. Where it is evident to an Inspector upon receipt of a file that the above process has not been conducted, s/he should promptly ask the Case Officer to undertake it, but should not postpone the site visit or other event.

With regard to undecided cases already before the Inspector, the following approach has been developed to assist in determining which cases can proceed and should not need any additional action, and those which, due to their current position, require reference back to the parties for comment (or merit reopening):

a) there may be cases where the balance that the Inspector is required to make would be unaffected by the change in policy, such that the appeal would be dismissed in any event. Provided that the Inspector is satisfied that there would be no infringement of natural justice, it is likely that s/he need not refer back to the parties, can simply note the WMS and PPG changes in his/her decision indicating that they have not borne on the decision. Suitable wording might be along the lines: “I have noted / had regard to the changes to policy from the WMS which, in the light of the facts in this case, do not alter my conclusion and decision that….”

b) where a site visit has taken place or an inquiry or hearing has closed, and the Inspector judges that the parties must be asked to comment, s/he should seek written representations from the main parties on the implications of the publication of the WMS, which must be cross-copied between the main parties (ie LPA, Appellant and any R6(6) parties). The Inspector must then consider and apply reasonable judgment to the question as to whether it is necessary to re-open the inquiry or hearing (advising Chart as necessary) or, exceptionally, where the case is being conducted by WR, to arrange an oral event if the responses merit further exploration of the issues. Before deciding to re-open / arrange an event Inspectors should discuss the case with their SGL or GM; Non Salaried Inspectors (NSIs) should contact XXXX, who will refer to the GM. In bespoke cases the target may need to be adjusted (in such instances Inspectors should contact XXXX for further advice); and

c) although ordinarily for SoS casework we would not seek views once an event has closed, PINS will refer back to the parties on the implications of the WMS and, as above, may in certain circumstances consider the need to re-open events. Inspectors who already have the case file should contact XXXX for further advice on such cases.

3 This in all such circumstances should cover the main parties (LPA, Appellant’s side, and Rule 6 Parties), with others included at the Inspector’s discretion.

In the event that a decision has been sent to Despatch prior to the publication of the WMS, but had not been issued at the point of the WMS’s publication, the Despatch Team will return the decision to the Inspector (in cases where the file has been received in the office it will not be returned unless the Inspector requests it). Having applied the principles above as to whether the case merits re-consulting with the parties or whether suitable explanatory text can be inserted, the decision should either be sent to Despatch or to the CPI Reading Unit address, in each instance the email subject bar should state ”WMS considered”.

Annexe B

Local Plans

a. The new policy as expressed in the WMS is directed at the determination of planning applications (and, by extension, appeals).

b. The NPPF policy that LPAs should consider identifying “suitable areas” for renewable and low-carbon energy schemes does not change. However, the policy changes referred to in paragraphs 2 and 7 above set out requirements that apply in circumstances where LPAs have identified “suitable areas” and, with that in mind, the PPG has been amended at Paragraph: 005Reference ID: 5-005-20150618 and Paragraph: 032Reference ID: 5-032-150618, Paragraph: 014Reference ID: 5-014- 20150618 & Paragraph: 033Reference ID: 5-033-150618.

c. This raises the question of what action the Inspector should take if a plan currently before him or her for examination contains a criteria-based policy that would permit wind energy development if its criteria are met, but the plan does not identify “suitable areas” for such development. The Inspector may need to assess whether or not such a policy can now be regarded as effective or consistent with national planning policy.

d. The following advice has been formulated:

1. The WMS’s expectation is that any future wind energy development must be in an area identified as suitable for wind energy in a local or neighbourhood plan– 3rd bullet point of paragraph 97 of the NPPF. 2. While the NPPF considers ‘soundness’, and must be taken into account, Inspectors have wide discretion as to whether the test is met. The test at paragraph 182 of the NPPF is flexible. 3. If the Inspector’s assessment is that a plan is unsound on this point, then there appear to be three possible options (which will ultimately need be canvassed with the Council as it will be its decision as to how it wishes to proceed), as listed below: i. delete any criteria-based policy (or part thereof) that looks to approve wind turbines, leaving future planning decisions to rely on the WMS. ii. add to the criteria-based policy the additional WMS tests saying a wind turbine proposal must be in area identified as suitable for wind energy development / fully address the planning impacts identified by local communities. This would mean the plan would include the up-to-date policy, and support any future part of the development plan (including a neighbourhood plan) that identifies suitable areas. The rationale could be provided in the supporting text (otherwise it might appear that the plan was requiring wind turbines to be in identified areas but not identifying any area as suitable for wind energy). iii. amend the plan to make it clear that any generic policy on renewable energy development does not relate to wind turbines, that the wind turbine issue will be dealt with in a subsequent review of the plan or single issue DPD, and that in the meantime wind turbine proposals will be considered against the WMS.

e. Suspending the examination to allow for a Council to identify suitable areas for wind energy development should not be encouraged as it will incur significant delays. However, it will be for the Council to decide how they wish to proceed. f. In reaching judgments Inspectors should, of course, seek to minimise delays wherever possible. Where hearings are imminent, the Inspector should consider the need to raise the issue of the WMS and revised PPG with the Council in advance of the hearing with the option of giving the parties an opportunity to make representations in the interests of fairness and natural justice. g. Where the hearings have been completed and the examination is at an advanced stage, Inspectors should seek the views of the Council on the implications of the WMS for the plan. Since the Council may seek advice from the Inspector in this matter it would be appropriate to outline the options above as potential ways forward. Any such changes to the plan would have to be brought forward as main modifications (MMs) in accordance with s20 of the 2004 Act. As in the case of all proposed MMs, the need for sustainability appraisal (SA) and public consultation must be considered. The Council and the Inspector have joint responsibility for SA at the examination stage. If SA and public consultation on all other MMs has already been completed it may be appropriate for the Inspector to invite the Council to consider whether there is a need for a further round of SA and public consultation on the proposed MM(s) in relation to the WMS, having regard to the nature of the proposed change that would be made to the plan. The Council may reach the view that there is no need for further SA and public consultation, having considered any potential for legal challenge. In this case, it would be possible to recommend the MM(s), explaining why this is necessary and proportionate and is at the request of the Council, and complete the report without any further delay.

Annexe C

Temple Quay House Customer Services: 0303 444 5000 2 The Square e-mail: Bristol, BS1 6PN

Your Ref: By E-mail Our Ref:

Date: xx xxxx 2015

Dear Sir/Madam

TOWN AND COUNTRY PLANNING ACT 1990 – SECTION 78 DETAILS OF WINDFARM CASE

The Inspectorate invites the appellant (or their agent) and the LPA to comment on how the Written Ministerial Statement on Local Planning made by Greg Clark MP on 18 June 2015 (HCWS42) and the Department for Communities and Local Government’s amended online guidance on renewable and low carbon energy affects the proposed development which is the subject of this appeal.

The statement can be read here http://www.parliament.uk/documents/commons-vote- office/June%202015/18%20June/1-DCLG-Planning.pdf and the amended guidance here http://planningguidance.planningportal.gov.uk/blog/guidance/renewable-and-low-carbon-energy/

Please send your comments to me by [insert date - 14 days from date of letter] and copy in the other party (ie the appellant / agent / LPA as appropriate). If, having seen the other party’s comments as mentioned above, you wish to comment on what they’ve said, please do so within 7 days of receipt (again, sending to me but copying to the other party too). A letter in identical terms has been sent to the appellant (or their agent) and the LPA.

Yours faithfully Xxxx Xxxxxx Case Officer Name

Annexe D North Wiltshire DC v Secretary of State for the Environment (CoA)

The general principles were laid down in the judgment of Mann LJ in North Wiltshire DC v SoS for Environment (1993) 65 P. & C.R. 137, p. 145:- “It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An Inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision. To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the Inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is a disagreement then the Inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate…. In other situations a previous decision may relate to a completely different proposal on a different site but the interpretation of a planning policy is relevant to a subsequent determination [e.g. the "spatial objectives" for Sandbach considered in R (Fox Strategic Land and Property Ltd) v Secretary of State [2013] 1 P. & C.R. 6]. Alternatively, a previous decision may be material because of the way in which a particular policy relevant to a later decision was applied in circumstances of sufficient similarity to the case under consideration.

Annexe E Decisions issued by the Secretary of State since the Wind Turbine WMS of 18 June 2015 i) APP/N2535/A/14/2217829 – S78 Appeal by RWE Innogy UK Ltd, Land North of Hemswell Cliff, Lincs. DN21 5SL – 10 Wind Turbines [Max height 126.5m]. Inspector recommended dismissal, SoS agreed – appeal dismissed 14/9/15/. – see paragraph 27 in particular. ii) APP/J0540/V/14/2220136 – S77 Application by REG Windpower Ltd, Land at French Farm, French Drove, Thorney, Peterborough PE6 0PQ – 4 Wind Turbines [Max height 100m] – Inspector recommended approval, SoS disagreed – application dismissed 21/9/15. – see paragraph 27 in particular. iii) APP/Z4718/A/2219268 – S78 Appeal by Mr S Searby, 25 Wakefield Road, Grange Moor, Wakefield WF4 4BG – 2 Wind Turbines [Max height 32.2m]. Inspector recommended dismissal, SoS agreed – appeal dismissed 29/9/15. - see paragraph 19 in particular. iv) APP/MO933/A/14/2221985 – S78 Appeal by Mr Dennison, Land at Gleaston Park Farm, Gleaston, Ulverston, Cumbria LA12 0QT – 1 Wind Turbine [Max height 79.6m]. Inspector recommended dismissal, SoS agreed – appeal dismissed 30/9/15. - see in paragraph 23 in particular. v) APP/P2935/A/13/2195630 – S78 Appeal by Mr W Jackson, Land at Shoreswood Farm, Ancroft, Berwick-upon-Tweed, Northumberland TD15 2NQ. 1 Wind Turbine [Max height 74m] - Inspector recommended dismissal, SoS agreed – appeal dismissed 30/9/15. – see paragraph 21 in particular. vi) APP/Y3425/A/14/2212769 – S78 Appeal by Mr Andrew Barnett, Land near Stone Park Farm, Pingle Lane, Stone, Staffords. ST15 8QT – 2 Wind Turbines [Max height 45m] – Inspector recommended approval, SoS disagreed – appeal dismissed 21/10/15. – see paragraph 21 in particular. vii) APP/Y2430/A/12/2187098 (linked with 2186471) – S78 Appeal (Redetermination) by Mrs H Tolton, Park Farm, Klondyke Lane, Thorpe Satchville, Melton Mowbray, LE14 2TB – 1 wind turbine [Max height 50m] – Inspector recommended dismissal, SoS agreed – appeal dismissed 11/11/15 – see paragraph 30 in particular. viii) APP/Y2430/A/12/2186471 (linked with 2187098) – S78 Appeal (Redetermination) by Prof. G England, Hall Farm, Klondyke Lane, Thorpe Satchville, Melton Mowbray, LE14 2TB – 1 wind turbine [Max height 46.1m] – Inspector recommended approval, SoS disagreed – appeal dismissed 11/11/15. – see paragraph 32 in particular. ix) APP/N2739/A/14/2221816 – S78 Appeal by Mr Walker, Land South West of Lumby, North Yorkshire, LS25 5LD – 1 wind turbine [Max height 87m] – Inspector recommended dismissal, SoS agreed – appeal dismissed 09/12/15. – see paragraph 25 in particular. x) APP/E3715/A/14/2227479 – S78 Appeal by RES UK & Ireland Ltd, Land at Cestersover Farm, Cestersover, Pailton, Rugby, Warwickshire, CV23 0QP – 4 wind turbines [Max height 126.5m] – Inspector recommended dismissal, SoS agreed – appeal dismissed 18/01/16. – see paragraph 28 in particular.

xi) APP/E2001/A/14/2217703 – S78 Appeal by Mr Roger Bramhill, Land at Humberside Farmers Ltd, Newbald Lodge, North Newbald, York – 1 wind turbine [Max height 34.2m] – Inspector recommended approval, SoS agreed – appeal allowed 19/5/16. – see paragraph 13 in particular. xii) APP/G0908/A/14/2224912 – S78 Appeal by Mr Steven Todhunter, Land to the east of Black Brow Farm, Great Orton, Carlisle, Cumbria – 1 wind turbine [Max height 79.6m] – Inspector recommended approval, SoS agreed – appeal allowed 24/05/16. – see paragraph 6 in particular. xiii) APP/Z2830/W/15/3013875 – S78 Appeal by Mr Tom Fromant, Land North-East of Bugbrooke, Kislingbury, Northamptonshire – 1 wind turbine [Max height 87m] – Inspector recommended approval, SoS disagreed – appeal dismissed 23/06/16. – see paragraph 19 in particular. xiv) APP/B3030/W/15/3003130 – S78 Appeal by Wind Prospect Ltd, Agricultural land west of Newark Road, Hawton, Newark-on-Trent Nottinghamshire, NG24 3RJ – 4 wind turbines [Max height 130m] – Inspector recommended approval, SoS disagreed – appeal dismissed 30/06/16. – See paragraph 20 in particular. xv) APP/G0908/A/14/2220065 – S78 Appeal by Fine Energy Ltd, Grange Grassings, Gilcrux, Wigton, CA7 2DU - 1 wind turbine [Max height 77m] – Inspector recommended approval, SoS disagreed – appeal dismissed 05/07/16. – See paragraph 16 in particular. xvi) APP/Y1138/A/14/2217719 – S78 Appeal by Mr Adam Westaway, Stone Barn, Chulmleigh, Devon, EX18 7EQ – 1 wind turbine [Max height 34.2m] – Inspector recommended approval, SoS disagreed – appeal dismissed 10/08/16. – See paragraph 20 in particular. xvii) APP/D0840/W/15/3097706 – S78 Appeal by Mr James Bolitho, Wilton Farm, Herodsfoot, Liskeard, PL14 4RB – 1 wind turbine [Max height 77m] – Inspector recommended approval, SoS agreed – appeal allowed 27/10/16. – See paragraph 8 in particular. xviii) APP/A4710/W/15/3134617 – S78 Appeal by Mr Ian Whitley, Land at Green Holes Farm, Coal Gate Lane, Soyland, Halifax, HX6 4NA – 1 wind turbine [Max height 36.55m] – Inspector recommended approval, SoS agreed – appeal allowed 28/10/16. – See paragraph 19 in particular. xix) APP/H0928/W/15/3132909 – S78 Appeal by Urban Wind Ltd, Low Abbey Farm, Cross End, Kirkby Thore, Cumbria, CA10 1XR – 1 wind turbine [Max height 45m] – Inspector recommended approval, SoS agreed – appeal allowed 07/11/16. – See paragraph 6 in particular.