^' RECEIVED

2T JUNzott N:rth Wanvickshire

KingsburyWind Energy Scheme

Installationand operation of 1no;130m high wind turbine and associated infrastructure(includin g access track, electrical equipment, temporary constructioncompound and hardstanding).

Plann i ng Application Referen ce : PAP 1201 3I 0321

Appendix D - Reviewof RelevantWind Energy Developments

Preparedfor WienerbergerLtd by Wind Direct

June2014 Appendix D - Reviewof RelevantWind Energy Developments

D1. Rodba son ( APPI C343OI A I tO| 21322891- ap pe n ded

D2.Frodsham Canal Depot (DP|/A0655/1V131 - sent electronicallythrough the planningportal

D3.Burnthouse (APP/D05151 AlLOl2L237391) - sent electronically through the planningportal

D4.Spring Farm Ridge (COl8849 AND 892212012) - appended

RECEIVED

2 7 JUN?01[

North Warwickshire Council HIJ$5:1:?:I: RECEIVED 2 ? JUN?O1T Appeal Decision North Warwickshil€ Site visit made on 29 October2010

by Andrew Hammond MA MSc CEng HIET MRTPI an tnrpGctor rppolnted by th€ Sccretrry of Strt6 for communlticr and Locrl Gov€rnment D€clslon dats: 1 D€cenrblr 2OlO

Appeal Ref: APP/C343O I Al rO I 2L322e9 South Staffordshire College, Rodbaston Campus' Rodbaston, Penkridge' Staffordshire ST19 5PH. . The appealis madeunder section 78 of the Townand CountryPlanning Act 1990 againsta refusalto grant planningpermission. . The appealis madeby Wind DirectLtd againstthe decisionof SouthStaffordshire Council. . The applicationRef 09/00524/FUL, received by the Councilon 15 July 2009 was refused by noticedated 22 April2010. . The developmentproposed is the erectionof two wind turbines,access track and ancillaryequipment,

Decision 1. I allowthe appeal,and grant planningpermission for the erectionof two wind turbines,access track and ancillaryequipment at SouthStaffordshire College, RodbastonCampus. Rodbaston, Penkridge, Staffordshire ST19 5PH in accordancewith the terms of the application,Ret O9/OO524/FUL,received by the Councilon 15 July 2009, subjectto the conditionsin AnnexA. Main Issue 2. The main issuein this caseis whetherthe proposalconstitutes inappropriate developmentwithin the GreenBelt and, if so, whetherthe harm by reasonof inappropriateness,and any other harm, is clearlyoutweighed by other considerationsso as to amountto the very specialcircumstances necessary to justify the development. R€asons 3. Nationafpolicy in respectof renewableenergy is set out in PlanningPolicy Statement22: RenewableEnergy (PPS22), This statesthat "when locatedin the greenbelt, elementsof many renewableenergy projects will comprise inappropriatedevelopment, which may impacton the opennessof the green belt. Carefulconsideration will thereforeneed to be givento the visualimpact of projects,and developerswill needto demonstratevery special circumstancesthat clearlyoutweigh any harm by reasonof inappropriateness and any other harm if projectsare to proceed.Such very special circumstancesmay includethe wider environmentalbenefits associated with increasedproduction of energyfrom renewablesources."

http l//www.planning-lnspectorate, gov.uk AppeafDecislon APP/C343O/ N 70/2f32289

I n a p p ro p fi ate devetop m ent 4. PlanningPolicy Guidance2: Green Belts (PPG2)sets out national policy guidancein respectof GreenBelts. PolicyGBl of the SouthStaffordshire LocalPlan 1996 (LP)sets out localpolicy which broadly follows the guidance in PPG2.Both PPG2and PolicyGBl state that developmentin GreenBelts is inappropriateunless it is for one of a numberof specifiedpurposes. 5. The proposeddevelopment does not fit into any of the categoriesof developmentdeemed to be not inappropriatein PPG2or PolicyGBl. The Counciland the appellantare in agreementthat the proposeddevelopment is thereforeinappropriate development which is, by definition,harmful to the West MidlandsGreen Belt. In view of the presumptionagainst inappropriate development,substantial weight must be givento the harm to the GreenBelt. Other ham to the Green Bett 6. PPG2states that "the fundamentalaim of GreenBelt policyis to prevent urbansprawl by keepingland permanentlyopen; the most importantattribute of GreenBelts is their openness".In this context"open" refersto a lack of developmentand not to beingvisually open. The proposeddevelopment would result in the introductionof developmentwithin the GreenBelt where nonecurrently exists. However,despite the heightand visibilityof the wind turbines,the extent of the introduceddevelopment would be limitedand the harm to the opennessof the GreenBelt wouldonly carry moderateweight in the determinationof the appeal. Visual aspects 7. In additionto the effectson the GreenBelt, the Council'sreasons for refusal cite the effectson the qualityof the landscapein the area and viewsfrom ShoalHill Commonwhich forms part of the CannockChase area of OutstandingNatural Beauty (AONB). 8. The appealsite is locatedin the predominantlyflat landscapeof the StaffordshirePlain, an intensivelyfarmed area crossedby overheadpower lines. The closestpart of the AONBis some 3.5km away with an important viewpointat the toposcopeat ShoalHill Common. 9. Staffordshireand Stoke-on-TrentStructure Plan 1996-2011 (SP) saved Policy NC2and LPsaved Policy LSl seekto protect,restore and enhancethe landscape.SP saved Policy NC3 relates specifically to the CannockChase AONBand statesthat the acceptabilityof developmentproposals outside the AONBboundary will be assessedwith regardto the extent of any adverse impacton the landscape,nature conservation or recreationinterest of the AONB. 10. By virtue of their heightand the sweptarea of the turbine bladesit is inevitablethat wind turbinesof the type proposedconstitute prominent featuresin their locallandscape setting and I recognisethat the wind turbines wouldbe visiblefrom a numberof localviewpoints, including footpaths, locar roadsand the M6 motorway. 11. Howeverthe wind turbineswould be relativelyslender and spacedsome distanceapart. As suchthey wouldnot detractfrom any senseof space within the flat landscape,nor wouldany long distanceviews be blockedor

http://www. planning-inspectordte.gov,uk . Appeaf Decision APP/ C343O/Al l0l 21322A9

significantlyobstructed. Fromthe more localpublic vantage points the proposalwould not have an unacceptablevisual impact. 12. Theturbines would also be visiblefrom a numberof relativelylocal dwellings. Howeverthe closestof these is some 500m distant, Giventhe separation distanceand the broadexpanse of the StaffordshirePlain, the visualimpact experiencedby the occupiersof those dwellingswould not be unacceptable. 13. The most significantmore distantviews would be from higherground to the East,particularly from ShoalHill Common. Theseviews are expansiveand the turbineswould be seenin the contextof the M6 and built development, includingthe collegebuildings. Thereforethe presenceof the wind turbines would not havea significantlydetrimental effect in theseviews or on the specialqualities of the AONB. 14. Section72(I) ot the Planning(Listed Buildings and ConservationAreas) Act 1990 requiresthat specialattention be paidto the desirabilityof preservingor enhancingthe characteror appearanceof conservationareas. The Staffordshireand Worceste6hireCanal, the entiretyof which is designateda conservationarea, passeswithin approximately300m of one of the proposed wind turbines. Clearviews of the proposedturbines would be limitedto the stretchof the canalin the immediatevicinity, more distantviews being restrictedby high hedgesand trees. 15. The turbineswould be prominentin viewsfrom the canalalong a stretchof approximately700m length. Whilstthe changeto the landscaperesulting from the introductionof the proposedturbines would be substantial,in this vicinitythe characterand appearanceof the area is dominated,both visually and aurallyby the nearby,heavily trafficked, M6 motorway. Giventhe dominanceof the motorwayany detrimentto viewsout of the Conservation area would be very limited. Other malters 16. Whilstnot includedin the reasonsfor refusal,third partieshave raiseda numberof otherissues. 17. Someresidents have expressedconcerns in relationto noise. It is clearthat the major influencein the area is the presenceof the M6 motorway. The appellanthas demonstratedthat any noiseeffects will be acceptablein terms of ETSU-R-97which the Governmenthas confirmedremains the appropriate guidancein this respect. A suitablecondition can be imposedto ensurethe compliancewith the guidelines. 18. The majority of those with concernsover healthand safetycited fears over structuralfailure. Whilstthere have beena numberof accidentsduring constructionor maintenanceof wind turbinesthere are no substantiated instancesof injury to membersof the publicduring normaloperation. Such concernsare, thereforeunfounded, 19. Furthersafety concernswere relatedto driver distraction,particularly in relationto motoristson the M6. The HighwaysAgency did not objectto the proposalas motoristswould first see the wind turbinesfrom somedistance, so as to allow them to becomeacclimatised to their presence.

http://www. planning-inspectorate. gov.uk AppealDecision APP/C343O/ N 1012132289

20. Exceptfor the deliveryof a few largecomponents during construction the proposalwould not introduceany significanttraffic movementsto the area. 2L, The only premiseswhich would be sufficientlyclose to the wind turbinesto potentiallyexperience the effectsof shadowflicker are in the controlof the college. Shouldthis occur,mitigation measures could be introducedin accordancewith detailswhich could be the subjectof a condition. 22. Whilstit is notedthat there are ecologicallysensitive sites in the vicinity,such as the heronryat GaileyReservoir, neither the RSPBnor NaturalEngland objected. No evidencehas beenproduced to substantiateany significant concernswith regardto the possibleeffects of the turbineson birdsor bats. B€nefits of the proposal 23. PPS22states that "The wider environmentaland economicbenefits of all proposalsfor renewableenergy projects,whatever their scale,are material considerationsthat shouldbe givensignificant weight in determiningwhether proposalsshould be grantedplanning permission." 24. The appellantinitially estimated that the proposedwind turbineswould generate10512 MWhrsa year. Followinga requestfrom a 3'oparty the gross yield was recalculatedusing actual wind speeddata collectedon site over a 12 month period. The revisedgross yield wouldbe 10444Mwhrs a year. 25. Whilstthis may be smallcompared with total nationalelectricity generation, it would,nevertheless, be an importantcontribution towards renewable energy generation.The environmentaland economicbenefits of the proposalweigh substantiallyin favour of the proposeddevelopment. 26. The significantcontribution to meetingtargets for renewableenergy generation,and the consequentialeffect in tacklingthe challengeof climate change,represents a compellingargument in favour of the proposedwind turbines.The benefitsof the schemeclearly outweigh the harm by virtue of inappropriatedevelopment, the limitedharm to opennessand any other harm so as to justify the proposedscheme on the basisof very special circumstances. Conditions 27. Conditionsrequiring the approvalof the localplanning authority of detailed designand externalmaterials and limitingthe overallheight of the turbines are necessaryto ensurea satisfactorydevelopment. 28. Conditionsrequiring the turbinesand associatedequipment to be removed after 25 yearsor upon ceasingto operateare necessaryto ensurethe satisfactoryrestoration of the site. 29. A conditionrequiring the measurementand assessmentof noiselevels, togetherwith limits not to be exceeded,is necessaryto ensuresatisfactory levelsof noiseas is a conditionrequiring the submissionto the localplanning authorityof the manufacturerswarranty in respectof noise. 30. A conditionrequiring identification of occupiedbuildings which may be subject to shadowflicker, together with mitigationmeasures, is necessaryto ensure that any identifiedproblem can be rectified.

http://www.planning-inspectorate,gov.uk . AppeafDecfslon APP/C343O/ A/7O/21322A9

31. A conditionrequiring the approvalofthe route for constructionvehicles is necessaryin the interestsof highwaysafety. 32. Conditionsrequiring approval of detailsof the temporaryaccess and the reinstatement as verge or footway are necessaryto ensure a satisfactory form of developmentas is a conditionrequiring the approvalof detailsof routeing of undergroundcabling, construction methodology and hoursof construction working. 33. A conditionrequiring the installationof aviationlighting to an approved scheme is necessaryin the interests of aviation safety. 34. A conditionrequiring that no existingtrees, shrubsor hedgeson the site or its boundariesshall be lopped,topped or cut down without prior approval'as suggestedby the Council,would be excessiveand unreasonable.

AndrewJ{ammon[ INSPECTOR

http i//www. planning-lnspectorate.gov.uk 5 AppealDeclsion APP / C343O/ Al 70/2132289

ANNEX A - CONDITIONS 1) The developmenthereby permitted shall begin not laterthan threeyears from the date of this decision. 2) The maximumheight of the two windturbines hereby approved from base to rotatingblade tips shallbe 126m. 3) Beforeany developmentcommences details of the designof the turbines and the ancillarybuildings, structures and equipment,together with materialsto be usedexternally, shall be submittedto and approvedin writingby the LocalPlanning Authority. The equipment,buildings and structuresshall only be completedin accordancewith the approveddetail. 4) The equipment,buildings and windturbine bases hereby approved shall be removedand the land restoredto its former agriculturaluse at or beforethe expiry of 25 years from the date of this permissionin accordancewith a schemewhich shall be submittedto and approvedin writingby the Local PlanningAuthority not laterthan 12 monthsprior to the expiryof the said periodof 25 years. 5) If any turbine bils to produceelectricity to the grid for a continuousperiod of 12 monthsit, and its associatedancillary eguipment, shall be removed from the site withina periodof 6 monthsfrom the end of that 12 month oeriod.The landshall be reinstatedin accordancewith a schemeto be submittedto and approvedin writingby the localplanning authority, and implementedas approved.The schemeshall include the managementand timingof the workstogether with a trafficmanagement plan. 6) At the reasonablerequest of, and followinga complaintto, the Local PlanningAuthority, the operatorof the developmentshall measure and assessat its expensethe levelof noiseemissions from the windturbine generatorsfollowing the proceduresdescribed in "TheAssessment and Ratingof Noisefrom WindFarms, ETSU-R-97' published by ETSUfor the Departmentof Trade and Industry. The level of noiseemissions from the combinedeffects of the wind turbine generatorshereby approved,when measuredin accordancewith sectionA of the guidancenotes, shall not exceedthe followinglimits [measured as L A90,1Ominlat the followinglocations

Wind Speed in m per secondat standardized10m heisht Location 1 2 3 4 5 6 8 9 10 11 12 Durinqniqht-time hours of 23:00- 07:00 The Glen 48 48 48 48 48 48 48 48 48 48 48 48 The Old 49 49 49 49 49 49 49 49 49 49 49 49 Stables The Student 43 43 43 43 43 43 44 45 47 49 52 55 Halls At all other times TheGlen 53 53 53 53 53 53 53 53 53 53 53 53 The Old 53 53 53 53 53 53 53 53 53 53 53 53 Stables The Student 50 50 50 51 51 lz 53 54 55 57 58 60 Halls

http ://www,plannlng-inspectordte. gov, uk AppeafDecision APP/C343O/ N 70/2132289

7) Nodevelopment shall commence until a schemeidentirying the occupied buildingswhich may be affectedby shadowflicker, and detailinga mitigauon strategyto reducethe impactof shadowflicker on thosepremises, has been submittedto and approvedin writingby the LocalPlanning Authority. The approvedmitigation strategy shall be implementedin accordancewith the detail. The LocalPlanning Authority may requireamendments to the mitigation strategyin the eventthat complaintsare received. 8) No developmentshall commence until details of the temporaryaccess to be usedfor the constructionperiod of the development,shall be submittedto and approvedin writingby the LocalPlanning Authority. The temporary access shall be @mpletedprior to the @mmencementof the developmentin a@rdance with the approveddrawing. 9) No developmentshall commence until the detailsof a routefor useby constructionand caniagevehicles, including for the deliveryof the windturbines, hasbeen submitted to and approvedin wriungby the LocalPlanning Authority. The approvedroute shall thereafter be adheredto for the duration of the development,unless an altemativehas been agreed in writingwith the Local PlanningAuthority. 10) Beforethe proposeddevelopment is broughtinto use,the temporaryaccess shallbe reinstatedas vergefootwayin accordancewith detailsto be first submittedto and approvedin writingby the LocalPlanning Authority. 11) No developmentshall commence until details of the routeand construction methodology,for cablingto be laid undergroundto, from and betweenpieces of equipmentand whichtakes account of hedgesand treeswithin the landscape, shallbe submittedto and approvedin wriUngby the LocalPlanning Authority. The agreeddetail shall be implemented. 12) No developmentshall commence until the methodologyfor the construction phaseof the developmenthas been submitted to and approvedin writingby the LocalPlanning Authority. The approvedmethodology shall be adheredto for the durationfor the constructionphase. 13) No consbrctionwork shallbe caniedout, and no materialsshall be deliveredto the site,other than betweenthe hoursof 07.30and 19.00hours on Mondaysto Fridaysand betweenthe hoursof 07.30and 14.00hours on Saturdays,and no suchoperations shall take placeat any time on Sundaysand BankHolidays. t4) A copyof the warrantyreferred to in section7.5 of the environmenblnoise assessment(HM:2092R1 dated 6th May2009) shall be submittedto the Local PlanningAuthority prior to the erectionof the two windturbines on site. 15) Priorto the @mmencementof the developmenthereby approved, details of the positionsof 25 candelaomnFdirectional red aviationlighting to be attachedto the windturbines, shall be submittedto and approvedin writingby the Local PlanningAuthority. The approved lighting shall be providedimmediately followingthe ercctionof the windturbines and retainedin workingorder for the lifeof the development. 16) Beforethe developmentcommences a landscapescheme shall be submittedto the local PlanningAuthority for approval.The appmved sdreme shall be implementedwithin 12 monthsof the completionof the development.The Local PlanningAuthority shall be notifiedwhen the schemehas beencompleted. Any failuresshall be replacedwithin the next availableolantinq season.

http://www,plannlng-lnspectorate.gov.uk a

NeutralCitation Number: t20l3l EWHC 11(ADMINI

CaseNo: CO/8849AND 892212012 IN TIIE HIGH COTJRTOF JUSTICE OT,JEEN'SBENCH DTVISION ADMIITISTRATTVE COTJRT

RoyalCourts of Justice Strand.London. WC2A 2LL

Date:16/01/2013

Before :

HIS HONOURJUDGE MACKIE OC

Between:

SOUTH NORTIIAMPTONSHIRE COTJNCII,(I) DEIDR"EVEROMCA WARD(2) Chimants -and- SECRETARY OF STATE FOR COMMLTNTTIES At{D LOCAL GOVERNMENT(I) BROADVIEW ENERGY DEVELOPMENTS Defendants LIMITED(2)

Mr AsithaRanatunga (instructed by LegalServices, South Northamptonshire Council) for theFirst Claimant, Mr Juan Lopez(instnrcted by ) for the SecondClaimant Ms Lisa Busch(instructed by The TreasurySolicitor) for theFirst Defendant Mr Timothy Corner QC (instructedby EvershedsLLP for the SecondDefendant)

Hearinedate: 5b December2012 JudgmentApproved by the court for handingdown t

Hth Coun UuDFov.d Jrdgdent: Double-click aoenler the shorttitlc No p.rEl|slor li 8rrntcd to (oov or ||!. in courl

JUDGE MACKIE QC :

L By two separateclaims the Claimantsseek orders under section 288 of the Town and CountryPlanning Act 1990quashing the decisiondated 12 July 2012 ("the Decision")of a planningInspector (Elizabeth Fieldhouse DipTP DipuD MRTPI) appointedby the Secretaryof State.The Decisiongranted planning permission, following an appeal by Broadview Energy DevelopmentsLimited ('Broadview'),for a windfarmat SpringFarm fudge, located betweenGreatworth and Helmdon in South Northamptonshire("the Site").The permissionis for the erectionof five wind turbines(each with a maximum height of l25m to blade tip) plus undergroundcabling, meteorologicalmast, and other ancillary facilities ("the Development").

2. The appealfollowed the decisionof SouthNorthamptonshire Council ("The Councll") the first Claimant,in a notice dated I I July 201I to refusethe Development.The decisionof the Inspectorwas issuedfollowing a public inquiry held on 15-18md,22-24 May 2012. Sitevisits were made on2l,24 and28 May 2012.Mrs. Ward,the SecondClaimant, opposed the appeal.She is a memberof HelmdonStuchbury and Greatworth Windfarm Action Group c'HSGWAG).

3. By orderdated 13 November2012 the two claimswere consolidated.Under both claims the Secretarvof Stateand Broadvieware defendants.

The challengesin outline

4. The Council challengesthe decisionon three groundseach supported by Mrs Ward.The Council submits that the Inspectorfailed

e properlyto applythe statutoryduty undersection 38(6) of the Planningand CompulsoryPurchase Act 2004('the 2004Act') andthereby failed to attach anyor anyproper weight to conflictswith DevelopmentPlan pollcy.

r properly to apply the statutoryduties under sections66 and 72 of the Planning(Listed Buildings and ConservationAreas) Act 1990('the Listed BuildingsAct') andthereby failed to havespecial regard to the desirability of preservingthe setting of Listed Buildings and failed to give special attentionto the desirabiliryof preservingor enhancingthe characteror appearanceof ConservationAreas.

o to provide adequatereasons on materialmatters to the decision,namely how theduty undersection 38(6) ofthe 2004Act had beenapplied and / or how the benefitsof the proposaloutweighed the harmto culnral herit'ge assets in the light of identifiedconflicts with DevelopmentPlan policy and the dutiesunder the Listed Buildings Act.

i. Mrs Wardrelies on two additionalgrounds not supportedby the Council.She submitsthat the lnspector

. failed adequatelyto considerthe actualnoise impactof wind turbinesin amenityterms and./or to examineand/or focus upon noise impacts beyond

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the issueof compliancewith 'EISU-R-97: TheAssessment and Ratingof Noisefrom Mnd Farms'. The Inspectorfailed to provideadequate reasons for her approachto examiningnoise impacts and concludingupon them in termsof ETSU;

r erred in law by adoptinga test relatingto visual impactson residential amenitywithout any basisin law or policy, misappliedthe relevantpolicy in this context,and failed to take into accountrelevant considerations, namely the impactswhich she regardedas falling below the thresholdshe has wronglyset.

The Legal Framework

6. Section288(l) ofthe 1990Act provides,so far asrelevant:

" If anyperson -

(a)...

ft) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds-

(, that the action is not within the powers of this Act, or

(i, thal any of the relevant requirementshave not beencomplied with in relation to that action,

he may make an application to the High Court under this section".

7. Section38(6) of the Planning and Compulsory PurchaseAct 2004 provides:

"If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the detemination must be made in accordance with the plan unless material considerations indicate otherwise ".

Section 66(l) of the Planning (Listed Buildings and ConservationAreas) Act I 990 provides:

"In considering whether to grant planning permksion for development which affects a listed building or its selting, the local planning authority, or, as the case may be, the Secretary of State shall have special regard to the desirability of preseming the building or its

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sefting or any features of special architectural or historicinterest which it possesses".

9. Section72(l) ofthe sameAct provides:

"In the exercise,with respec,to any buildings or other Iand in a conservationarea, of anyfunctions under or by virtue of any of the provisiors mentioned in subsection (2) [the Planning Acts], special attention shall be paid to the desirability of preserving or enhancingthe choracteror appearanceof that area".

Principles

10. The approachofthe courtto an applicationunder Section 288 is not in dispute and in the next threeparagraphs I adoptthe surnmaryin the skeletonargument of Ms Busch who appearsfor the Secretaryof State.A challengeto the decisionofan Inspectoron a planningapplication made under section 288 of the 1990Act may be madeon standardpublic law grounds,including the gomds that the Inspector'sconclusion was perverse,that he failed to take accountof relevantconsiderations or took accountof irrelevantones, and that he failed to give reasonswhich were properand adequate,and./or clear and intelligible,and/or which dealt with the substantialpoints which had been raised in a precedingInquiry (SeddonProperties v Secretaryof State for the Environment[978] JPL 835 per ForbesJ; cited in Bolton MBC v Secretary of Statefor the Environment[ 991] JPL241 (CA)).

1l. The weightto be attachedto materialconsiderations and mattersof planning judgmentare within the exclusivejurisdiction of the Inspector(Tesco Stores Ltd v Secretaryof State[1995] 1 WLR 759). 12. An Inspectoris not writing an examinationpaper. His decision-lettermust be readin goodfaith and references to policiesmust be taken in thecontext of the generalthrust of the lnspector'sreasoning. The adequacyof reasonsmust be assessedby referenceto whetherthe decisionleaves room for genuinedoubt as to what the decision-makerhas decided and why, on a straight-forward, down-to-earthreading of the decision, without excessivelegalism or exegeticalsophistication (South SomersetDC v SecretarJrof State for the Environment[993] I PLR 80 at 83E-Gand ClarkeHomes Ltd v Secretarvof Statefor theEnvironment (1993) 66 P&CR253 at 27| -271).

13. Similarly it is common ground that the requirementto give reasonsis accuratelysummarised by Lord Brown of Eaton-Under-Heywoodin South BucksDC v Porter [2004] I WLR 1953,atl964 at paragraph36 asfollows:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and 'principal what conclusions were reached on the importanl controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be

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brieJly stated, the degree of particularity required depending entirely on the nature of the issuesfalling for deckion. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example, by misunderstanding some relevanl policy or some other important matter or by failing to reach a rational deckion on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every malerial consideration. They should enable disappointed developers to assesstheir prospects of obtaining some alternative development permission, or, as lhe case may be, their utsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon funre such applications. Decision letters must be read in a straigh{orward manner, recognising that they are addressed to parties well aware of the issues iwolved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substontially prejudiced by the failure to provide an adequately reasoned decision".

14. Reliance is also placed in Clarke Homes Limited v Secretarvof State for the Environment and East StaffordshireDistrict Council (1993) 66 P&CR 263, where Sir Thomas Bingham MR said at p27l-272 that the question, when deallng with an allegation of inadequate reasoning in a decision of the Secretaryof State,is whether the decision letter

" leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a staighforward downlo-earth reading of his decision letter wilhout excessivelegalism or exegetical sophbtication. "

Guidance about the approach to Section 38(6)

15. While Counselfor the Defendantsplace emphasison the desirabilityof leaving the Inspectorsimply to apply the languageof Section38(6) the Claimantspoint to the context in which the sectionwas enactedand the guidancein thecase law aboutthe approach to it.

16. In Ciw of EdinburghCouncil v Sesretar.vof Statefor Scotland[1997) I WLR 1447the House of Lords examinedthe approachto be properlytaken by the decision-makerover the Scottishprovision then equivalent to section38(6) of the2004 Act (namely,s.l8A ofthe Town andCountry (Scotland) Act 1972):

"By 't)irtueof section 18A the developmentplan is no longer simply one of the material considerations. Its provisiont, provided that they are relevant to the

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particular application, are to govern the decision unlessthere are material considerationswhich indicate lhat in the particalar case the provisions of the developmentplan should not be followed. If it is thoughtto be usefulto talk of presumptiorcin thisJield, it can be said that there is now a presumptionthat the developmentplan is to govern the decision on an applicationfor planningpermiss ion... Moreover the section has not touched the well- established di.stinclion in principle between those matterswhich are properly within thejurisdiction of the decision-makerand those matters in which the court canproperly intentene.It has innoduceda requirement with which the decision-makcrmust comply, namely the recognition of the priority to be given to the developmentplan. But beyond that it still leaves the assessmentof the facts and the weighing of the considerationsin the handsof the decision-maker " (per Lord Clydeat 1458C- H)." t7. The approach to be adopted by the decision-maker in respect of the developmentplan has recentlybeen specifically considered in the contextof wind farm development,in Sea& LandPower & EnergyLtd. v SSCLGet al. l-20121EWHC l4lq (Admin) in which it wasobserved that section 38(6) gives effect to a systemwhich is "planJed":

"There is thus a statutorypresumption in favour of the statutory developmentplan, here that includesthe local plan and itspolicies on landscape.In contrast national planning policies...are merely other material considerations " (per Lang J, para. 53).

18. Mr Ranatungafor the Councilalso points to the contextof Section38 as the successorto Section54A of the Planning and CompensationAct 1991, describedin the Ens,ys,lglediaas weighting "the balance in favour of the developmentplan by requiring all decisionsunder this section actually to be made in accordance with the plan except where material considerations indicate otherwise." t9. I attachimportance to the entirety of the relevantparts of the speechesofLord Hope and Lord Clyde in City of Edinburghand alsoto the summaryof the position,on which the judge in Sea& Land basedthe observationset out above,by Lindblom J in Cala Homes(South) Ltd v Secretaryof Statefor Communitiesand Local Govemment and Winchester Cilv Council[20] l] I P. & C.R.22 at paras.27 - 28,32and 48:

"27. In England (as elsewhere in the United Kingdom) the planning system is still "planJed". In statutor-y--asopposed to policy-terms, the priority to be given to the developmentplan in development

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control decision-making is encapsulated in s. 38 (6) of the 2004 AcL which provides:

"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise. "

28. Section 38(6) must be read together tt,ith s.7G(2) of the 1990 Act. The effect of those two provisions is that the determination of an application for planning permission is to be made in accordance with the development plan, unless malerial considerations indicate otherwise. The provision then equivalent to s.38{6) in the Scottish legislation ( S.I8A of the Town and Country Planning (Scotland) Act 1972 , the counterpart of s.54A of the 1990 Act) was examined and explained by the House of Lords rn Edinburgh City Council v Secretary of State for Scotland |9971 1 Wl.R. 1447. In hk speechin that case Lord Hope said this (at pp. 1449H-1450G):

" Section l8A of the Act of 1972 ... creates a presumption in favour of the development plan. That section has to be read together with section 26(I) ofthe Act of 1972 [the provision in the Scoftish legislation equivalent to section 70(2) of the 1990 Artl. Under the previous law, prior to the introduction of section I8A into that Act, the presumption was in favour of development ... it is not in doubt that the purpose of the amendment introduced by section I8A was to enhance the status, in this exercise of judgment, of the development plan. It requires to be emphasised, however, that the matter is nevertheless slill one of judgment, and that this judgment is to be exercised by the decision-taker. The developmentplan does not, even with the benefit of section I8A, have absoluteauthority. The planning authority is not obliged, to adopt Lord Guest's words in Simpson v. Edinburgh Corporation 'slavishly 1960 S.C. 313, 318, to adhereto'it. It is at liberty to depart from the development plan if material considerations indicate otherwise. No doubt the enhanced status of the development plan will ensure that in most cases decisions about the control of development will be taken in accordance with what it has laid down. But some of its provisions may become outdated as national policia change,or circumslanca may have occurred which show that they are no longer relevant In such a case the decision where the balance

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lies betweenits provisions on lhe one hand and other material considerationson the other which favour the development,or which may provide more uplo-date guidance as to the testswhich must be satisfied, will continue, as before, to be a matter for the planning authority.

The presumption which section l8A lays down is a statutory requirementIt has the force of law behind it But it is, in essence,a presumptionoffact, and it is with regard to the facts thdt the judgment has to be exercised. The primory responsibility lies with the decision-taker.The function of the court is, as before,a limited one. All the court can do is to review die decision, as the only grounds on which it may be challenged in terms of the staute are those which section 233(l) of the Act loys down. I do not think that it is helpful in this context,therefore, to regard the presumption in favour of the developmentplan as a governingor paramounl one. Theonly qu*tions for the court are whether lhe decision+akerhad regard to the presumption, whether the other cowiderations which he regarded as material were relevant considerations to which be was entitled to have regard and whether, looked at as a whole. his decision was irrational. It would be a mistake to think that the efect of section I8A was to increasethe power of the courl to intervene in decisioraabout planning control".

32. ...a statementof nationalplanning policy, however made, is capable of being a material considerationin the determinationof a planning application. This was recognisedby Lord Hope in the passageof his speech rz City of Edinburgh which I have set out above (see, for example,the decision of Carnwath J., as he then was, rn R. v Bolton MBC Ex p. Kirkrnan p9981Env. L.R.560 (at p.567); (1998) 76 P.AC.R. 548)

48. Four features of the planJed systemare salient in the decision of the House of Lords lz City of Edinburgh:/rst, that both the relevantprovisions of the developmentplan and olher malerial considerations mustbe takeninto accountby the decision-maker(see what wassaid by Lord Clyde in hisspeech at p.457F-H, citing Lord Guest's distinction betweenhaving regard to the plan and slavish adherencero r7 in Simpsonv Edinburgh Cup 1960 5.C.313, at pp.3l8-319);

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secondly,that the developmentplan has "priority " in the determination of planning applications (see what was said by Lord Clyde at p.l458B); thirdly, that this "priority" is not to be equatedto a " meremechanical preference",for there remains "a valuable elementof flexibility" and if there are considerationsindicating theplan shouldnot befollowed a decisioncontrary to itsprovisions can properly be made(see what wassaid by Lord Clydeat p,1458F);and fourthly, that s.38(6) leavesto the decision-makerthe assessmentof thefacts and the weighing of the considerationsmaterial to the decision(see what Lord Clydesaid at p,1458G-H).This exerciseis a practical one. It entoilsfor the maker of the decision the question "whether there are considerationsof such weight as to indicdte that the developmentplan should not be accorded the priority which the statute has given to it" (see Lord Clyde's speechat P.1459D-H). As was aclonwledged by Lord Hope (atp,1450D) it may be,for example,that someof the provisions of the developmentplan "become outdatedas national policies change,or circumstances may have occurred which show that they are no longer relevant". Whenthis happens,the balancebetween the provisions of the plan and the considerationspulling against it isfor the decision-makerto strike (ibid.)- " 20. I concludefrom all this that the sectionrequires not a simpleweighing up of the requirementof the plan againstthe materialconsiderations but an exercise t}tat recognisesthat while material considerationsmay outweigh the requirementsof a developmentplan , the startingpoint is the plan which receivespriority. The scalesdo not startoff in evenbalance.

21. Thereis moredebate about the legalapproach to the ListedBuildings Act and thegrounds relied upon by Mrs Wardwhich I will dealwith later.

The Appeal Decision

22. The detailednature of someof the groundsrequires me to summarisethe Decisionwith particularemphasis on the passagescriticised by the Claimants. I observefirst that the Decision is acceptedto be very thorough and conscientiousexcept, on the caseof the Claimants,in somedetailed respects referredto below and secondlythat, as appearsfrom the Statementof CommonGround, it is agreedthat the Inspectoridentified the correctplanning policies. In summarisingthe Decision I will, like the parties,refer to its paragraphsas "DLl" etc.

23. Themain issues are listed at DL 4 asbeing:

i) The impact of the proposal on the surroundingarea in terms of landscaoecharacter and visual effects.

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ii) Theeffect of the developmenton the settingofheritage assets.

iii) The effecton the amenityofnearby occupiers both duringconstruction and in operation,particularly with respectto visual intrusion,shadow flicker andnoise and general disturbance.

iv) Whetheras a resultof the proposedturbine siting therewould be an unacceptableperception of harm to the saferyof usersof the local publicrights of way networkand the byway open to all traffic.

1A Thelnspector then added:

"Finally, I consider whether any harm which may result from the above issueswould be suficient to outweigh the beneJits,particularly in terms of climate change, which Jlo, from renewable energ) generation"- 'Polia7 25. At DLs, under the heading "Reasons", and the sub-heading framework in respect of renewable energt", the Inspector summarised Governmentpolicy with respectto renewableenergy as set out in its UK RenewableEnergy Strategy,Overarching National Policy Statementfor Energy,the UK RenewableEnergy Shategy Roadmap and the CarbonPlan. At DL6 she noted that the CompanionGuide to PPS22:Planning for RenewableEnergy remained relevant.

26. In DL7-8 the Inspectorsummarised the policy for renewableenergy described in theNational Planning Policy Framework("the Framework")and dealt with the developmentplan at DL9. As to the Local Plan,the Inspectorsaid, at DL t2:

"The LP does not refer to renewableenergt but the Council adopted the South Northamptonshire Wind Turbines in the Open Countryside Supplementary PlanningDocament in December2010 (SPD). The SPD is afrorded some weight as a material consideration. This guide setsout a positive approach to wind energt but does not set targets. However, the Low Carbon Energt Oppornnifies and Heat Mapping for Local PlanningAreas Across the East Midlands: Final Report March 2011 identifies SouthNorthamptonshire as one of only four districrs in which on-shore wind has the greatestpotential. On-shore wind is likely to provide the overwhelmingcontibution to capacity. The appeal site is in a location which is identified as one of the areas having the greatest technical resource for owhore wind energtproduction".

27. The relationshipbetween the Frameworkand developmentplan policiesis describedat DLl3:

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"Since the Framework came into force, the saved policies of the adopted RSSand the LP should be given due weight according to the degreeof consistencywith the Framework, as advised in paragraph 215 of the Framework. In the absenceof any local plan policies on renewableene/g), the policies in the Framework in relation to renewableenerg) are afforded considerable weight. The other relevant policies consideredin the bodyof thisdecision are found to be concistentwith the broadpolicy principles of the Framework".

28. The Inspectornoted at DL 14 that the West NorthamptonshireJoint Core Strategy- Pre Submission- February201I was at a fairly early stagein its preparationand could be subjectto change,so could only be affordedvery limitedweight.

29. The Inspectorthen turned to landscapecharacter and visual effects,the characteristicsof the appealsite and its surroundingsat DL 15-16,location within the 2003County wide landscapecharacter assessment at DL18 and at DL 19 with the resultsof a local landscapeand visualassessment canied out by the First Claimant.

30. The Inspectorobserved, atDL2l, that the appealsite lay within an areawith no specificlandscape designation and would not impactharmfully on views from theAONB or its character.A|DL23, the lnspectorobserved that in view of the scaleand number of turbinesproposed, the developmentwould havea major impact on the landscape.ln DL24-32, the Inspectorconsidered the impactwhich theproposal would haveon landscapeand views from a number of viewpoints.She concluded at DL 33:

" Views within the theoretical windfarm landscape would benefit from the filtering of nearby trees and hedgerows but the turbines would be dominant elements in the landscape and are not one of the exceptionsin LP policy EV2 to thepresumption against development in open countryside or are(N for the distribution of developmentin CSpolicy Sl ".

31. The Inspectorthen tumed to heritageassets. She noted that the development would not havea direct impacton any heritageassets, any potentialimpact wouldbe to the settingsofthose assets. At DL35 the Inspectorsaid:

"The Framework requires local plans to set out a positive strategt for the conservationand enjoymentof the historic environment.It recognisu that heritage asse$ are an irreplaceableresource and they shouldbe conserved in a manner appropriate to their significance.The significance ofa heritageasset can be harmedor lost throughalteration or destructionof the heritageasset or developmentwithin itssetting".

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32. She noted that there were many designatedheritage assets within five kilometresofthe appealsite, including eight scheduled monuments, 319 listed buildings,eight conservation areas and one registered park andgarden as well asundesignated assets nearby (DL37). At DL38 the lnspectorstated:

" In considering whether a proposed development would lead to substantialor lessthan substantialharm to the signiJicance of a designated heritage asset, paragraphs I 33 and I 34 of the Framework,put simply, require the harm to be weighed agairct any public beneJits- the greater lhe negative impoct the greater the benefitrequired to justify approval".

33. From DL39-54 the Inspectorconducted a detailedassessment of the impact whichthe developmentwould have on the settingsof the heritageassets liable to beaffected by it, concluding,at DL55:

"While in some instances considerable, the adverse impact of the proposed wind turbines would be reversible and there would remain areasfrom which the nrbines would not be seen. Overall, the proposal would cause harm to the selting of a range of designatedherilage assetsand thereforefail to accord with the relevant parts of RSSpolicy 26, LP policies G3, EVI I and EVl2 and CS policy SI I that aim to preserve or enhance the character, appearanceand setting of heritage assets.However, in no case has the 'substantiol impact of the proposal beenfound to be harm' in terms of paragraph Ij3 of the Framework. Therefore the impact would fall h,ithin the policy in paragraph I 34 of the Frameworkand this harm should be weighedagairct thepublic benefitsof theproposal".

34. The Inspectornext dealt with the issueof " Residentialamenity - visual intrusion",introducing this topic @L 56): "The planning system exists to regulate the use and developmentof land in the public interest and there is public interestin avoiding the efects of climale change. The outlookfrom private property is a private interest not a public one. However,where the visual impact of a proposal is such as lo cause unreasonable living conditions/amenityfor the occupants of individual homes,and might be widely regarded as making the properly an unattractiveplace in which lo live, that is a legitimatematter of public interest".

35. At DL 58 shesaid:

"The residential sumeys by the Appellant and the Council consideredviews from residential properties

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wilhin 2 km to determinewhether the proposed turbines would be overbearing or overwhelming,dominate the outlook to the extent that the proposal would be oppressiveor adverselyafect the living conditions.The Appellant found no overbearing or overwhelming effectsfrom the proposal on any property although accepted that housu that within 0.8 lon of the feil 'dominant' nearestturbine wouldfall within the range of the proposal. The conclusions,were not disputed by the Council for the majority of properties except Snchbury Hall Farm from where the Council consideredthe wind rurbine(s) would be a noticeably overwhelmingand an unqvoidablepresence ".

36. The visual impact which the developmentwould have for StuchburyHall Farm,for the reasonsset out from Dl-59-6l,wouldnot be overwhelmingor inescapablein the overallviews from theproperty. As to theview from within the fields the developmentwould be "unpleasantlyimposing and pervasive". However, it would not be "io overwhelming as to make the property unattractiveand/or an unsatisfactoryplace to live" (DL62)

As regardsGrange Farm and otherproperties, the turbinesand bladeswould be likely to be viewedfrom the edgeofthe field adjoiningthe properties;but thoseviews would be filteredor indirect.There would be visual harm from rotatingblades, and the turbineswould " dominateas a naruowarc in the overall view". Nevertheless"in view of the aspect,planting and width of view, the visibility of the turbineswould not be overwhelmingor inescapable". (DL63).

38. At DL64 the Inspectorsaid:

"From other curtilages and/or properties visited in the area, somehave limited screeningthat would break up views but the attractieenessof some of the properties would be diminished. The impact on someproperties would be likely to be substantial and unpleasantly imposing.Nevertheless, the najorily would have other aspectsor are well separatedfrom rheproposal so that the wind nrbines would not be overwhelmingnor malce themunattractive and/or unsatisfactoryplaces in which to live. The relevantprovisions of LP policy G3 and CS policy SI 1 would not be contravenedin this respect".

39. As regards the issue of " Residential amenity - noise and general disturbance",the Inspectornoted at DL66 thatPPS22 indicated that the report entitled "The Assessmentand Rating of Noisefrom lYind Farms" (ETSU-R- 92) should be used when assessingand rating noise from wind energy developments.This was carriedthrough, as she also noted,to more recent Governmentadvice, with the footnoteto paragnph 97 of the Framework advising that, in assessingthe likely impacts of potential wind energy development,the approachin EN-3 readwith EN-l shouldbe followed;while

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EN-3 providedthat the ETSU-R-97report should be usedfor assessingthe impactof noisefrom a windfarm.

40. Thelnspector then recorded @L69) thata suggestedcondition "would accord with the maximumday and night time noise immissionlevels in ETSU-R-97", adding:

"No harm is found in respectof noise immissionlevels suggested in the condition snd there would be no conflict with the advice in CG PPS22, EN-l, EN-3 and the Framework in this respect.Subject to the proposed condition there would be no conflict with LP policy G3 @) or emergingCS policy SI I(j) in respectof noise".

41. At DL70, the Inspectorconsidered Amplitude Modulation C'AM), remarking that ETSU-R-97took accountof this. Sheadded that maximumnoise levels couldbe controlledby condition.

+2. The Inspector'soverall conclusion about residential amenity is at DL72:

" Overall in relation to the efrect on the living conditions of residents, it has been found that the proposed developmentmay be dominant but would not be overwhelming and inescapable for residential occupiers.There may be unsettlingstacking of turbines or at least blades visible from someproperties and a considerable number of residents would see the turbines as prominent and uncharacteristicstruclures. Such impactswould diminish t$ith distanceand there is nothw to Euggesl that such efects would be experiencedin relation to the house and garden as a whole of the afected properties. Theproperties would not become unatlractive and/or unsuitable places in which to live. Subject to appropriate controls through conditions, there would be no harm by reason of shadowflicker and any noiseas a result of theproposal couldbe controlled to accordwith Governmentpolicv".

43. At DL73-79 the Inspector dealt wlth the impact of the development "Public footpaths, bridlewaysand byway" , concluding,at DL 79, that:

"The proposed development would be a visible presence in the area and result in the loss of a perception of tranquillity contrary to the aims of RSS policy l, LP policy G3 and CS policy 51. Nevertheless, with the intermittent filtering/screening ffict of vegetation and any twists and turns along routes, the ever changing views would not necessarily always include turbines. The proposal would not result in PRoWs or the BOAT being inaccessible or unavailable

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and no significant harm is found in relation to the usageof public rightsofway".

44. " Othermatters", namely, ecology, aviation, grid connection,highway safety andhuman rights are dealt with in DL80-84.

45. The Inspectorset out her "Overall balanceand conclusions" at DL85-92. Thereis a clearnational and regional need for renewableenergy which weighs heavily in favour of the developmentand is supportedby Govemmentand regionalpolicy and a local SPD.Wide economicand environmentalbenefits attach to all renewableenergy proposalsand are significant material considerationswhich have to be given substantial weight (DL85). Nevertheless,the Government'sintention is not that all renewableenergy schemesshould be supportedirrespective of any harm that might be caused. The Frameworkadvises that planningplays a key role in helpingto shape placesto secureradical reductions in greenhousegas emissions. The delivery of renewableand low carbonenergy and associated infrastructure is identified as being centralto the economic,social and environmentaldimensions of sustainabledevelopment. However, the Frameworkadvises that it is necessary to ensurethat the impactof the developmentis acceptable(DL85). LP policy EV2 and CS policy Sl aim to preventdevelopment in the countryside/rural areasthat doesnot fit into the identifredcategories. Wind rurbinesdo not fall into the acceptedand identified uses. However, due to the sizeand number of turbines,the proposalwould be likely to haveto be locatedin the countryside ratherthan in a settlement(DL86).

46. As the concludingparagraphs are much relied on I setout the relevantones in tu[;

"87 The beneJits of producing renewable energt and assisting in meeting national obligalions, aspirations and helping to reduce the impact of climate change have to be set against the identified harm. Any wind farm is likely to bring change to the landscape and outlook of people living nearby but the fact that the development would be for a period of 25 years and is reversible has to be borne in mind. However, such a period would be a long time for any perceived harm and therefore the fact that the development would be for a temporary period carries little weight. The question is whether any harm would be so serious as to significanlly damage interests of acknowledged tmportance-

88 In this particular case, the proposal would bring about a significant change to the landscape and from some viewpoints the proposed windfarm would become a key feature at odds with the scale of the landscape with a subsequent adverse impact. There would be harm to the setting of a range of heritage assets at the level of harm would be less than substanlial.

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89 Residentialamenity could beprotected from shadow flicker and the noise immissionlevels controlled by the imposition of conditions. The proposal would change the outlook from many homes and could be unpleasantlyimposing and pervasive to the occupiers of StuchburyHall Farm, who work the adjoining land. Turbine blade stacking could be visible from some properlies. However, the proposal would not be so overwhelmingas to make any Property an unat ractive and/or unsatisfactoryplace in which to live.

9l Taking accounl of the statutory duties imposedby the Planning (Listed Buildings and Conservation Areas) Act 1990 and the harm identilied to the setting of heritage assets,the balance indicatesthat the wider benefts attributable to the proiects contribute to the casefor approval. 92 National policy seel

47. The Inspectorthen went on to considerthe conditionsthat shouldbe attached to anygrant of planningpermission.

48. I now tum to theindividual challenges made by theClaimants.

Ground I - failure to givethe weight to the developmentplan required by Section38(6)

49. Mr Ranatunga,supported by Mr Lopezsubmits as fiollows.The lnspectorwas requiredto give effect to the planJed systemthrough section 38(6) by determiningthe appealin accordancewith the DevelopmentPlan unless materialconsiderations indicated otherwise. The statutorytest is not referred to anywherein the DecisionLetter. The Council doesnot contendthat the Inspectorwas required to referexpressly to section38(6) of the 2004Act and its terms,rather than the DecisionLetter taken as a whole,must show that the statutoryduty hasbeen applied. On a fair readingof the DecisionLetter, the

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Inspectorapplied the policy testsin the recentlypublished National Planning PolicyFramework. This wasonly a materialconsid€ration under section 38(6) of the 2004 Act and the Inspector failed to give due weight to the DevelopmentPlan policies in the assessment.Whilst the Inspectordid identiff the relevantDevelopment Plan @L, 9) and did considerthe advicein the NPPF that weight shouldbe given to its policiesaccording to the degreeof consistencywith the Framework (DL, 13), nowhere did the Inspector acknowledgethe statutorytest undersection 38(6) and give priority to the DevelopmentPlan unless material considerations indicated otherwise.

50. The Inspectorfairly noted that the Local Plan did not containpolicies on renewableenergy and therefore attached considerable weight to the policiesin the NPPFin relationto renewableenergy. The readercould therebyproperly understandthe relative weight attachedto renewableenergy policy in the NPPF.However, the Inspectorexpressly left openthe positionin respectof otherDevelopment Plan policies at DL 13.

51. The Inspectoridentified conflicts with DevelopmentPlan policies in respectof the main issuesin the appeal.In termsof the scheme'seffect in landscapeand visualterms there was a conflictwith policy EV2 of the Local Planand 51 of the CoreStrategy (DL, 33).In termsof effectson HeritageAssets, there would be conflict with policy 26 of the RegionalShategy, G3, EVI I, and EVl2 of the LocalPlan, and policy Sll of the CoreStrategy (DL,55). In respectof impactson PublicRights of Way, the Inspectorfound conflicts with policy I of the RegionalStrategy, G3 of the Local Plan and policy S1 of the Core Strategy(79). However,there was no otherreference to the conflictswith the otherpolicies (Regional Strategy policies I md 26, Local Plan policiesG3, EVI l, andEVl2, andCore Strategy policy S1 l).

52. Far from reflectingthe priority to be given to the DevelopmentPlan unless material considerationsindicate otherwise, the Inspector expressedthe questlonas:

'.. whether any harm would be so serious as to signiJicantly damage interests of acknowledged importance.' (DL, 87)

JJ. The Inspectorappears to have stateda test which was containedin national guidancebefore the amendmentswhich gave rise to the plan-ledsystem: 'There is always a presumption in favour of allowing applications for development,having regard to all material considerations,unless that developmentwould causedemonstrable harm to interestsof aclcnowledged importance.'

(para. 15 of Planning Policy Guidance I (1988), referred to at P70.40 of the Planning Encyclopedia ll36al).

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54. Further, in the concluding paragraphof the main text of the Decision Lefter (DL, 92) the lnspectorappears to havecarried out a straightforwardbalancing exerciseof weighingharms against benefits. The NPPFis acknowledgedas a materialconsideration carrying significant weight, but thereis no recognition of the primacy of the developmentplan policies or the plan-ledapproach undersection 38(6) of the 2004Act. Therewas a focuson the NPPFwithout acknowledgementof the referenceswithin that policy documentto the statutorytest. There was referenceto an out-ofdate 'test' which appearedin nationalpolicy beforethe plan-ledapproach was adopted (DL, 87 andPPGI), andthe application of a sraightforwardbalancing exercise.

)). Ms Busch for the Secretaryof State, supportedby Mr Comer QC for Broadview,submits that this claim is without merit.The lnspectoridentified the constituentelements of the developmentplan at DL9. At DL32,55,'19and, 86, she set out variousbreaches of the policiesset out. The Inspectoralso identifiedat DL64 and 69 the respectsin which the developmentdid not conflict with the relevantpolicies in the developmentplan. It carurotsensibly be maintainedeither that the Inspectorfailed to assessthe developmentin the light of the relevantpolicies of the developmentplan, or that she failed properlyto undertakethat exercise.

56. The Inspectormade it clearthroughout her decisionnotably at DLl3 and 85 that sheconsidered that therewere material considerations arisine in this case to which substantialweight required to be attached.

JI. Thus the "balancing exercise" which the Inspectorconfirmed she had undertakenin DL92 wasprecisely that which she was required to undertakeby section38(6) of the 1990Act. Therewere conflicts with the developmentplan which the Inspectoridentified but she took the view that those were outweighedby materialconsiderations in the form ofnationalplanning policy.

58. The lnspector'sremark, at DL87, that "The questionis whetherany harm would be so serious as to significantly damage interests of acknowledged importance"does not showthat sheapplied the wrongtest. Ms Buschsubmits that theremark was made in the contextof theInspector's consideration of the question of whether the fact that the developmentwas temporaryand reversiblewas of any materialsignificance. Mr Cornersubmits that it mustbe seenin the contextof thereasoning as a whole.

59. Mr Corner'ssubmissions support those of Ms Busch.A properapplication of s 38 (6) requiredthe lnspectorfirst to identirythe relevantprovisions of the developmentplan, secondly to identi$ whatshe considered to be the conflicts with the developmentplan andthirdly to ask herselfwhether there were any materialconsiderations of suflicientweight as to warrantthe grantof planning permission,notwithstanding these conflicts. The Inspectordid all thesethings. In particular,in the last sectionof her decisionletter she drew logetherthe conclusionsin theprevious sections, and reached the overallview that despite the conflictswith the developmentplan therewere reasonswhy permission should be granted,see DL 92. It is clear from DL92 that the Inspector balanced,as shewas requiredto do, the conflictswith the developmentplan

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againstthe countervailingconsiderations which might point to the grant of permission.

StuchburyHall and GrangeFarms

60. The Claimantshave a particularconcern about these properties and submitas follows. Whilst the Inspectordid not find that the impactson Residential Amenityin relationto a numberof propertieswould give rise to conflictwith DevelopmentPlan policies (DL, 64), sheexpressed no view on whetherthere was a breachof DevelopmentPlan policy in respectof the impactson key residentialproperties at the heartof the argumenton impactson Residential Amenity: StuchburyHall Farm and GrangeFarm. This omissionwas all the more significant given the Inspector's conclusion that the proposed developmentwould be unpleasantlyimposing and pervasive(though not overwhelming)at StuchburyHall Farm(DL,62), andthat the turbineswould dominatea nanow arc in the overallview at GrangeFarm (DL, 63). Thercis nothingin the DecisionLetter to indicatewhether the Inspectorconsidered there to be a breachof DevelopmentPlan policy in respectof those key properties,

61. Quite separately,the Inspectorfailed to expressany view as to whetherthere wasconflict with DevelopmentPlan policies when considering the Residential Amenity impactson StuchburyHall Farm and GrangeFarm. This omission raisesthe questionof whetherthe Inspectorproperly considered there was a breachof DevelopmentPlan policy at all in relationto thoseproperties, how much weight (if any) would be attachedto any conflicts, and whether any conflictsof DevelopmentPlan policy were consideredas part of the balance applyrngthe statutorytest.

62. Ms Buschresponds that claimsthat the lnspectorfailed to reacha conclusion as to whetherthe visual amenityimpact of the proposalson StuchburyHall Farm and GrangeFarm would be contraryto the policiescontained in the developmentplan are incorrect.The Inspectoraddressed the issue of the impactwhich the developmentwould haveon "Residentialamenity - visual intrusion" at DL56-64. At DL64 she concludedthat the " relevantprovisions of LP policy G3 and CSpolicy Sl I would not be contavened in this respect" with regardto all of thevisual impacts which she had considered in this partof the DL, includingthose at StuchburyHall and GrangeFarm. Mr ComerQC addsthat evenif this sentenceis not readbroadly, as he saysit shouldbe, the substanceof the Inspector'sremarks about eachproperty indicate that the Inspector had formed the same view that the policies would not be contravened.I agree.

63. On this particularaspect I considerthat the Defendantsare right. This Inquiry was a complexand detailedexercise and the lnspector'sfindings necessarily containthe inaccuracyofany prdcis.On this aspectof the issueit is clearwhat shehad in mind. The Claimants'criticisms do not crossthe legal threshold whichI haveset out above.

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Ground I - Decision

64. I identifiedthe approach to an Inspector'sdecision above. There is no needfor an Inspectorto set out sectionsfrom statutesor recite any particular Manta. The Decisionmust not be readlike a judgmentor a statute.The courtshould not readily infer that the decisionmaker erred in law. Neverthelessmany peoplesee their livesas being fundamentally affected by a decisionto permita large wind farm in their community. They are entitled to know whether the law has beenfollowed by an Inspectorwhose decision is so crucialto them. Thereis no doubtthat the Inspectoridentified the relevantdevelopment plan and appliedas a materialconsideration the Frameworkand other national policy or thatshe conscientiously weighed up the competingfactors.

65. But as I read the Decisionshe did not accordthe developmentplan the priority requiredby law. At no point doesshe mention the priority dueto the 'plan planor expressherself in termsthat indicatethat sheis awareofthe led' concept.It is clearthat this test was drawnto the Inspector'sattention at the Inquiry.

66. At DL13 sherefers to the plan but in the contextof its consistencywith the Frameworkand by referenceto its Paragraph215. That paragraph emphasises that dueweight should by givento policiesin existingplans according to their degreeof consistencywith the Framework.But the paragraphdoes not stand on its own andthe Framework makes clear-see Paras 2. I I and210 to 212that applicationsmust be determinedin accordancewith the developmentplan unlessmaterial considerations indicate otherwise. [n the secondhalf of DLl3 otherrelevant planning policies are evaluatedagainst the broadprinciples of the framework but in terms giving the appearanceof being Frameworkrather thanplan led.

67. When addressing"overall balanceand conclusions" the Inspectorstarts at DL85 with the Frameworkand other national policy and at DL86 again identifiesplanning policies that conflict. At DL87 the benefitsof national policy haveto be setagainst the identifiedharm. The questionis identifiedas whetherany harmwould be so seriousas to sigrificantlydamage interests of acknowledgedimportance. 'Harm' is mentionedat the startand at the end of DL87 andthen twice in DL88 (aswell as in DL4). While generallygiving the Inspectorthe benefitof the doubton semanticissues I am unableto seethe harm questionbeing referableonly to the 25 yearspoint in the middle of DL87, asMs Busch(but not Mr Comer)contends. However I do not think that the assessmentis assistedby close investigationof wherethe vocabularyof thequestion may havecome from.

68. Mafters are drawn togetherin DL92. National policy seekswell planned developmentsand the drivefor renewableenergy should not be at theexpense of environmentand heritage. The impactof theproposal with its conflictswith the plan does not outweighthe wider benefits.On renewableenergy the Frameworkis up to datebut the LP policiesdo not addressthe issue.

69. Recognisingthat I needto read the Decisionin a down to earthway as a wholeand in contextI detectno identificationofthe priority to be givento the

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plan (which may of coursehave to give way to the materialconsiderations referredto). The exerciseis a carefulevaluation of competingconsiderations without any indicationthat the plan has priority. I concludethat the first Groundsucceeds because the Inspectorhas not accordedthe Development planthe weightwhich Section 38(6) requires.

Ground 2. Failure to apply the statutory duties under sections66 and 72 of the Planning(Listed Buildingsand ConservationAreas) Act 1990 '10. Mr Ranatungasubmits that the flaw in the Inspector'sapproach to the impacts on heritage assetswas similar to the approachto the statutory duty under section38(6) of the 2004 Act. The Inspectorfocused almost entirely on the positionunder the NPPF,without properly taking into accountor applyingthe statutorytests, in this caseunder sections 66 and 72 of the Listed Buildings Act.

71. He submitsthat the Inspectorwas requiredto apply separateduties under section38(6) of the 2004Act and sections66 and72 of the ListedBuildings Act (Heatherington(IlK) Ltd. v per KeeneJ at p.382). There is a bare mention of the statutorytests under the Listed Buildings Act but these were not applied properly. The focus of the Inspector'sanalysis on culfuralheritage impacts was asto whetherthe harms identifiedamounted to 'substantialharm' in termsof paragmphs133 and 134 'special of the }{PPF(DL55). The statutoryobligations to have regardto the desirability of preserving' listed buildings and their settings,and to give 'specialaltention to the desirability of preserving or enhancing' the character or appeafinceof conservationareas were material considerationsin that assessmentand shouldhave carriedconsiderable weight .In grapplingwith this statutoryduty, the lnspectorhad to give a high priority to the objectiveof preservingthe listed buildings and their settings and to enhancingthe characteror appearanceofthe ConservationAreas (Heatherington, per Keene J, p.380 by referenceto SouthLakeland DC v SOSEil9921 2 AC 141 at l46F). The statutorytests under the ListedBuildings Act werenot referredto in the analysisof culturalheritage impacts in the DecisionLetter (DL, 34 - 55). The only referenceto those statutorytests was the bare referencein paragraph9l of the DecisionLetter. It is far from clearfrom this passagethat the Inspectorunderstood that a separatestatutory duty was being applied,that that duty constituted(at least)a materialconsideration.

72. Ms Buschand Mr Cornerrespond that the lnspectorexpressly stated that she hadtaken account of the statutoryduties imposed by the ListedBuildings Act. In the First Defendant'ssubmission, it is plainly apparentthat she did take thoseduties into account,and her reasoningand conclusionswere fully in accordancewith them. Thus, at DL34 to DL55 the Inspectorexamined in detailand witl carethe impactwhich the developmentwould haveupon the settingofthe listedbuildings and Conservation Areas in issue.In so doingshe was herselfactively paying due regardand specialattention in accordance with sections66(l) and72(l) ofthe ListedBuildings Act. '13. Accordingly,in the FirstDefendant's submission, it is manifestfrom theterms ofthe DecisionLetter that shehad oaid very closeconsideration to whatthose

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sectionsrequired of her in contrastwith Heatherington.Having, as she expresslystated, taken account of the dutiesset out in the Listed Buildings Act, the Inspectorwas entitledand indeedobliged to take into account,in addition,the relevantpolicies of the developmentplan (to which shereferred at DL55), and thosecontained in the Framework(to which she referredat DL35, DL38 and DL55) as a materialconsideration to which she attributed significantweight. '14. It does not follow from the fact that the Inspectorconcluded that the developmentwould causeharm to the settingof listedassets the shefailed to "have specialregard" or to pay attentionto the considerationsreferred to in sections66(l) ail'12(l\ of the ListedBuildings Act. Shewas entitledto and did arriveat the latterconclusion as a resultof her assessmentof the impacts of the proposalpursuant to the dutiesset out in thosestatutory provisions. As wasmade clear in Heatheringion,whether the duty hasbeen complied with is a matterof substance,based on an examinationof the decisionletter as a whole.

Ground2 - Decision

75. This ground is not madeout. The Claimantscomplain essentially that the Inspectorcarried out an exerciseunder the Frameworkand not that required by Sections66 and72. Ms Buschand Mr Comerargue that the performance of the statutoryduty involvesan exerciseand is not a separatetest. That may be right. Further the Framework test had to be carried out anyway as they point out. More firndamentallythe Inspectorstates explicitly (as she did not have to do) that she has had regardto the sectionsand she has clearly examinedthe heritageaspects in carefuldetail over manyparagraphs. It was concededthat the Inspectordid not haveto repeata detailedexercise, applying the sections,paragraph by paragraph.She was not obligedto write an exam answerto show that she has done what she has statedshe has done.The sinrationis different from casessuch as Heatheringtonwhere there was no sign that the lnspectorhad paid explicit regardto the statutoryduties. In Heatheringtonthe Appellant'sargument for permissionfor continueduse of a listed building for oflices restedpartly on its contentionthat the Council's preferredresidential use would fail to preservefeanres of specialinterest of that building. The Inspectordid not ask himself whetherintroduction of a residentialuse would fail to preservespecial features,but only whether residentialuse would have a "seriouseffect". In contrastin this casethe Inspectorwas aware ofthe dutiesand had regard to them.

Ground 3 - Reasonschallenge arising from Grounds I and 2

76. This groundis developedin the skeletonarguments but I do not proposeto deal with it separately.The argumentis superfluousgiven my conclusion aboutGround I . lt will not succeedon Ground2 for the samereasons as that Ground fails. Furtherthe reasonschallenge on its own does not meet the requirementof the last sentenceof Paragraph36 of SouthBucks which I set out above.

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Ground 4. Failure to consideradequately noise impact of the wind turbines

77. This relatesto the issue"the ffict on the amenityof nearbyoccupiers both during constrttction and in operation, particularly with respect to visual intrusion,shadow Jlicker and noise and general disturbance"@L4). The Inspector'sconclusions on noiseat DL72 were:"any noiseas a resultof the proposal could be controlled to accord with Governmentpolicy" and , at DL89 "residential amenity could be protectedfrom shadowJlicker and the noise immission levels controlled by the imposition of conditions". DL 90 indicatesthat othernoise issues will bedealt with by conditions.

78, Mr Lopez for the SecondClaimant complainsthat the Inspector only considerednoise in termsof compliancewith noiselimits derivedfuom ETSU- R-97: TheAssessment and Ratingof Noisefrom l ind Farms ('ETSU) (DL 66 and69). Whilst identifoingthat thedecision-maker should use ETSU in the assessmentand ratingof noisefiom wind energydevelopments the Inspector has wrongly equatedcompliance with ETSU with there being"no harm" in planningterms and/or with there being no conflict with the relevantpolicy underthe Local Plan,policy G3(D). ln summary,it is saidthat the Inspector erredby failingto considerwhether the noiseimpact of the proposalwould be harmful notwithstandingthat it would be requiredto comply with noise conditionsthat followedthe ETSU guidance.It is saidthat this amountedto a u'rongful substitutionof a test of ETSU compliancefor the actual test in policy G3 @) of the Local Plan, namely that a developmentshould not unacceptablyharm the amenities of localresidents.

79. Mr Lopezsubmits that the approachof the Court of Appealin Tegni Cvmru CJrfv Welsh Ministerst20l0l EWCA Civ 1635confirmed the needfor the Inspectorto look beyondthe mereissue of ETSU complianceand to further considerthe actualnoise impact of wind turbinesin amenityterms, reflecting the needto strikea balance.The fact of ETSU compliancedid not meanthat local residentswould not be adverselyaffected by noiselevels which do not exceedguideline levels. Hence, ETSU did not afford a completeanswer. ln Tegni Cymru Cyf Pitchford LJ noted that it had beendecided by the inspector that 'E?SU indicative levels in relation to the proposal which he was consideringwere not the last word on "acceptable"noise levels", and that Wyn Williams J (at first instance)had acknowledgedthat ETSU "did not representan absolutestandard against which the proposal was to bejudged'. He submitsthat a similar approachwas adoptedby the High Court in consideringETSU in Leev SSCLGt201ll EWHC807 (Admin) and in Hulme v SSCLGt20l0l EWHC2386 (Admin).

80. He saysthat it followsthat compliance with ETSU-derivednoise limits cannot amountto the only relevantconsideration and that it wasnecessary, either in principleor within the contextof the particulardetermination to be madeby the Inspector,for the Inspectorto considerthe acceptabilityof noiseeffecB moregenerally, and in actualterms (i.e. in thereal world). In failing to address her mind to the properapplication of the policy G3@), or altemativelyin failing to haveregard to the applicationof this policy at all, the Inspectothas failed to dischargethe s.38(6)duty and hasfailed alsoto take into accounta

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(highly) relevant consideration,namely the actual impact of noise on residentialamenity in the realworld.

81. In the First Defendant'ssubmission, the Inspectoracted entirely lawfully in treatingETSU-R-97 as settingthe benchmarkfor acceptablenoise impacts. The Inspectorrecorded that, in the absenceof any competingbackground noise data and having regardto all the material,she acceptedthe Second Defendant'sbackground noise evidence. She rejected the contentionthat the directionfrom which noisewas received would leadto greaternoise levels or that thoseprovided for (ie by condition)having regard to ETSU-R-9?would not be met. Sheheld that, as a resultof an appropriatecondition designed to ensurethat maximum day andnight time noiseimmission levels would accord with the limits set out in ETSU-R-97,the developmentwould be consistent with the relevantpolicies contained in PPS22and the Framework.She also held that, subjectagain to the impositionof the envisagedcondition, the developmentwould not causeharm in termsof noise,and that it would not conflict with LP policy G3(D) or emergingCS policy Sl l(3). The lnspector did not fail to consider whether the noise impacts would be harmful, notwithstandingcompliance with ETSU-R-97or to applyLP policy G3(D).

Mr Comer submitsthat the casesshow that the Secretarvof Stateor his Inspectoris entitledto find thatalthough a proposedwind farm would operate within the relevantETSU limits,local residents would still sufferunacceptable noise disturbance.However, it is one thing to say that an Inspectormay rationallyconclude, in the exerciseof his planningjudgement, that ETSU indicativelevels should not bedeterminative of theassessment ofnoise impact in a particularcase. It is quite anotherto contendthat a differentlnspector, assessinga different proposal for a differentsite, may not concludethat ETSU does,in factprovide an appropriatebasis for assessment.

83. ln the presentcase, the Inspectordecided that ETSU did, in fact,provide an appropriatebasis for assessment,stating at DL 66 that

"ETSU-R-97gives indicative noise levels calculated to ofer a reasonabledegree of protection to wind farm neighbours,without placing unreasonablerestrictions on windfarm development." 84. That was the methodologyrecomrnended by centralgovemment in current policy documents.Mr Comer saysthat i1 is 5rrggestedby Mrs Ward that in following the approachin ETSU the Inspectortook an approachat oddswith policy G3 (D) of the Local Plan. Howeverthat policy (see Wl/pagel09) simpfyrequires that the impactsof development"will not unacceptablyharm the amenitiesof any neighbouringproperties. " The policy necessarilygives rise to the needfor a methodologyto assesssuch impacts, and the Inspector cannotbe faultedfor havingchosen to applythe ETSUmethodology.

Ground 4 - Decision

85. As I seeit this Groundwas raised and decided at the Inquiryand is not for this Court. The fact that the law recognisesthat in somecases an Inspectorcan

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validly decideto takefactors other than ETSU into accountdoes not meanthat in other situationsan Inspectormay not lawfully concludethat ETSU complianceis the right measure.In this casethe Inspectorconsidered the matterwith careand then decided,unsurprisingly perhaps given the national guidance,to apply ETSU and attacha condition.This was a matterfor her to decideand she did so lawfully.

Ground 5. Visual Impactson residentialamenity

86. Mr Lopezcontends that in assessingthe impactof the proposalon residential amenity,the Inspectorened by applyinga test that had no basisin law or policy, askingwhether the impactwould be suchas to make a properlyan "unattractive" or "unsatisfactory"or "unsuitable" place to live. The Inspector'sconclusions atDL72 andDL 89 indicatethat if an impactwas not consideredby the Inspectorto meet thosethresholds, it was not taken into accountby her in the planningbalance. I will set out the argumentof Mr Lopezin moredetail.

87. Mr Lopezstarts at DL56 wherethe Inspectorsaid:

"The planning system exists to regulate the use and developmentof land in the public interest dnd there is public interestin avoiding the efects of climate change. The outlookfrom private property is q private interest not a public one.However, where the visual impactof a proposal is such as to cause unreasonable living conditions/amenityfor the occupants of individual homes,and might be widely regarded as making the property an unattractiveplace in which to live, that is a legilimate matter of public interest."

88. He submitsthat the Inspectorthen applies this asa testin reachingconclusions aboutindividual properties such as StuchburyHall Farmand overall atDL 62, 64,72 and89. The sourcefor the 'test' is not referencedin theDL but appears to be takenfiom the decisionof anotherInspector on an appealin respectof landat EniferDowns, Langdon, Dover. At the inquiry,the Councilhad argued beforethe Inspectorthat the aboveshould not be appliedas a test (as the lnspectordid in fact apply r0 and pointedout that it had no basisin law or policy.(TheDefendants accept that this mightwell havebeen the sourceofthe wordsused.)

89. Mr Lopez submits that DL 56 indicates that visual impacts of the Developmentwhich fell belowthe thresholdthere set out amountedto private and not public concernsfor the planningsystem and were not taken into accountby the Inspector.The conclusionsat DL 89 and72 areconsonant with the Inspectornot including visual impactsassessed as falling below this threshold,as part of a globalassessment of the cumulativeadverse effects in the overallbalance. The lnspectorwas howeverrequired to takeinto account the visual impactsshe has dismissed.The Inspector'sapproach is not in accordancewith Govemmentpolicy. The "General Principles" document which formerlyaccompanying Planning Policy StatementI had advisedthat

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the questionto be consideredwas: "whether the proposal would unacceptably afect amenitiesand the existing use of land and buildings which ought to be protected in the public interest". The TechnicalAnnex on Wind in the CompanionGuide to PPS22: RenewableEnergy advises:"rfte material qtrestion is whether the proposal would have a detrimental efect ... on omenitiesthat ought, in thepublic interest,to beprotected'. Local plan policy G3 requiredthe Inspectorto considerwhether the developmentwould "zot unacceptoblyharm the amenitiesof any neighbouringproperties" and whether the developmentwould be an "unacceptablevisual intnrsion into the surroundinglandscape" . Theserequirements are materiallydifferent from the test which has in fact beenadopted by the Inspector. In essence,these developmentplan policy requirementspresented a lower thresholdfor visual impactsto be takeninto account.Impactswhich would havefallen shortof the lnspector's threshold would nonethelesshave amounted to relevant considerationsrequired to be taken into account.The Inspectorrecorded instancesof harm arisingfrom the Developmentin terms of visual impacts which were significant,amounted to materialconsiderations and shouldnot havebeen left out of accountin the overallbalance. Accordingly, the Inspector haserred by adoptinga testwithout any basisin law or policy,has misapplied the relevantpolicy, and has left out ofaccountrelevant considerations, namely the impactswhich she regarded as falling belowthe threshold she has wrongly set.

90. Ms Buschresponds that the Inspector'sfindings need to be readin the light of the distinctionshe draws at DL56 betweenimpacts on amenitywhich are of purelyprivate concern, and those which are mattersof public interestso asto amountto legitimateplanning considerations. The lnspectorwas plainly right and entitledto draw such a distinction,and to conducther assessmentof impactin the light of it. In DL 64, the Inspectorassessed the effect on visual amenityagainst LP policy C3, which requiredher to considerwhether the developmentwould unacceptablyharm the amenities of neighbouring propertiesand to assesswhether the developmentwould be an unacceptable intrusioninto the surroundinglandscape. In assessingwhether the proposals would contravenethe policy, the Inspectorwas entitledand boundto useher own judgment,and shewas entitledto usethe adjectivesshe did in orderto reachand explain her conclusions as to whetherthe policywas contravened.

Ground $Decision

91. I can put my decisionbriefly. The Defendantsare correct. The Inspectorwas making a planningjudgment. As I see it, looking at the reasoningin the mannerwhich the law requires,she did not apply a higher thresholdof acceptabilitythan that set out in the Local Plan. She was conductingan exerciseby referenceto theplan. For thereasons given in the casesreferred to aboveit would be wrong for the Court to judge the Decisionby applyingthe ingeniousbut closeanalysis of the text adoptedby Mr Lopez.

Conclusion

92. Groundone succeeds but theother four sroundsfail.

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93. I am smding out a draftjudgment on 2l Dece,ober,even though judgncnt camot be handoddoq'n this rcruu as I undsshni that thereis a degrceof urgency.

94. Questionsof remedyand other mafiere which cannotbe Egre€dwil be d€alt with at the handdown of thir judgmerd"I shallbe Eratefulif Counsel!vi[ let firehave, not lessthan 48 houmbefore thc hearing,a list of oorrec'tionsof the kind anda draft ordcr,both preferably agreed md a noteof anymafiers wishto raise.

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