Offshore wind farmer wrong-footed by the Planning Inspector

18 April 2012 by David Hart KC

Dudgeon Offshore Wind v. Secretary of State for Communities and Local Government et al, HHJ Waksman QC, hearing 23 March 2012, read judgment

Running a hearing can be difficult enough when you are sitting as a judge and are faced with parties in a civil case. At least then you have an agenda set by the legal documents (or pleadings) and  your primary role as judge is to decide whether the points made by one or other side are good or bad. Sometimes you may be sorely tempted to suggest better ones, but usually you do not run parties’ cases for them. And if you do, it is obviously fair for you to tell both parties what is going through your mind. After all, there may be very good reasons why a party has not taken a point apparently advantageous to them. Anyway, you must give the other side the opportunity to deal with the point.

All the more difficult in an inquiry, of which a planning inquiry is a good example. Here you are not just the judge. Your job is to inquire into whatever you think is necessary to decide whether to let a scheme proceed. Much of the time, it is a bit like a civil case, with the local planning authority trying to uphold its grounds for refusal, and the developer trying to show why the grounds do not stack up. But then in many planning appeals you have the third or fourth dimension, a group or groups of (usually) objectors who are saying that there are additional grounds for refusing the scheme. Sometimes, these issues come out all tidily before the inquiry starts, because the objectors have asked to participate in the formal procedures (Rule 6 parties in the jargon). On other occasions, it all just comes out as the inquiry proceeds.

This case is a good example of the latter.

Dudgeon is planning a large offshore wind farm some 20 miles north of the North Norfolk coast. But offshore wind requires onshore infrastructure, in this case an electricity substation deep in the countryside near Swaffham (for non-Norfolk-ites, think Stephen Fry and Kingdom) – more particularly in a field near Little Dunham. But the Little Dunhamites (out in force in my image) did not want to be blessed with offshore wind industrial infrastructure. The case got to inquiry. At the beginning of the inquiry, the Inspector said that the main issues were landscape, noise and traffic impact, at which point one of the objectors raised the possibility of other sites also being an issue. The Inspector replied that the Secretary of State would make a decision based on the appeal site. There might or might not be superior sites but that was not to be taken into account. Later another objector sought to raise the issue of better alternative sites and again the Inspector dismissed this as not to be taken into account. So the inquiry proceeded.

In the end, the Inspector said that the appeal should be turned down, and the Secretary of State endorsed this view; no sub-station near Little Dunham, everyone thought. But, given what had been said at the beginning of the inquiry, Dudgeon were hence a little surprised to read in the Inspector’s reasons that

Subject to further assessment, there may be alternative sites, although at present it cannot be determined that any would necessarily offer more attractive solutions in planning terms. Nevertheless, in current circumstances the possibility of locating an acceptable site elsewhere tells against acceptance of the environmental consequences that would be associated with this particular development at Little Dunham.

They brought a statutory appeal, which proceeds on essentially the rules applicable to judicial review. And were successful on the basis of the unfairness which they said resulted from this. Dudgeon were not saying that the Inspector was wrong in considering potential alternative sites. This is a ticklish issue in planning cases, well summed up by the judge:

The key point made by Carnwath LJ [in a previous case] was that while it may be difficult to say that a decision-maker has erred when he has considered the question of alternative sites, it does not follow that he must have erred when he has not.

Here, the Inspector obviously changed his mind between his initial announcement of his views and his ultimate thoughts about the potential merits of other sites. Indeed, he might have done rather better by inviting all parties to address him on the alternative sites issue. But there was nothing wrong with him changing his mind, except that if he was thinking of doing so, he needed to give the developer warning of his thinking. That would enable submissions to be made on whether it was or was not correct to consider alternative sites and/or make submissions about the alternative sites which the developer had considered.

The Secretary of State, whose ultimate decision it was, sought to argue the very limited significance of the Inspector’s views on alternative sites. There were indeed other grounds for refusal. But it may be an uphill struggle for a party to say that the decision would necessarily have been the same, leaving out of account something which the Inspector said he did take into account.

The Inspector here got himself into trouble by what he said on day 1. But that does not mean that an Inspector must say exactly what is going on in his mind throughout the hearing. As I posted recently about an onshore wind farm case, the duties of an Inspector in these circumstances are set out in  Castleford Homes Ltd v Secretary of State & RB Windsor & Maidenhead [2001] EWHC Admin 77, in which Ouseley J stated, at [53]:

“It is obviously helpful if an Inspector does flag up issues which the parties do not appear to have fully appreciated or explored. The point at which a failure to do so, amounts to a breach of the rules of natural justice and becomes unfair, is a question of degree, there being no general requirement for an inspector to reveal any provisional thinking. It involves a judgment being made as to what is fair or unfair in a particular case.”

As ever with judicial review-type proceedings, Dudgeon’s success here does not necessarily mean that Little Dunham is saddled with extensive electrical switchgear. Yes, this decision is quashed, but it is now for a procedure to be devised which gives Dudgeon a chance of addressing what it did not address before. In that process, it may turn out that the other reason for refusal (essentially visual impact) stands on its own two feet.

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