Wind, peat and reasons: do I know why I lost?

9 July 2011 by

RWE Npower Renewables Ltd v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin) Read judgment

There are two things which public law fairness demands of a judge or a planning inspector before they rule against a party. The first is to make sure that any doubts about a party’s case is put to that party so he can respond. The second is that the judge or inspector explains his reasons for his conclusions in summary form. Unfortunately, in this case, the inspector did neither, and hence the decision was quashed by Beatson J. The judgment, at [37], contains a very good summary of the current cases on the adequacy of reasons in both planning and non-planning contexts. 

So what was the case all about? RWE wanted to put up a wind farm at Mynydd y Gwair to the north of Swansea, in a wild and beautiful spot, as can be seen from our wintry photograph. Swansea Council refused the application, RWE appealed, the inspector hearing the planning inquiry recommended refusal, and the Welsh Ministers confirmed that refusal. RWE then brought an appeal against that refusal, under s.288 of the Town and Country Planning Act 1990; the grounds under that section effectively equate to the principles of judicial review, in other words, the decision of the public authority must be fair, within the law and not irrational.

One of the issues at inquiry was whether the impact of the construction of the wind farm on the peat bog habitat was significant, taking into account mitigation measures proposed by RWE. The battlelines were as follows. In the Environmental Statement accompanying the application, RWE’s experts said that the peat deposits on site were minor. The Countryside Council for Wales (the Welsh equivalent to Natural England) made written submissions to the inquiry disagreeing with this. RWE’s experts carried out further investigations and found rather more peat; but they still said that the anticipated effects of the development on the peat were of minor significance, but advanced additional mitigation measures in the form of floating tracks plus the appointment of a project ecologist and project hydrologist.

The inspector concluded that there would be a significant degree of impact on the peat deposits. He reached this conclusion, “having regard to the appellant’s evidence…and from my own observations on site. In my view the risk of an unacceptable degree of harm to the peat habitat is sufficient to justify refusal.” The Welsh Ministers simply agreed with this conclusion.

RWE’s main point was that these reasons were simply not sufficient; they did not know why their experts’ evidence had been rejected. And the judge agreed: the reasons

do not enable the reader to understand why, notwithstanding the evidence of [RWE’s experts] on the peat issue, the principal controversial issue, he concluded that the impact of the proposal was significant and sufficed to justify refusing the application. [43]

The judge stressed that reasons need only to be stated briefly, and that the courts should be astute not to read an inspector’s decisions like a contract or a statute – don’t get too pernickety. Nor should a reasons challenge be a disguised attempt to revisit the planning merits [40] – a challenger can creep imperceptibly from contending that “the reasons were expressed inadequately” to the rather different claim that “there were no good reasons anyway.” But the judge cited Bingham LJ’s wise words in the 1988 case of Eckersley v. Binnie :

a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other reasons

And such a reasoned rebuttal could not be found in the inspector’s report.

The underlying problem lay in two facts. The first is that CCW did not attend the appeal (despite indicating earlier that it would) and hence it did not give its view on RWE’s amplified case, and the second is that no-one at inquiry challenged RWE’s experts on their evidence about impact.

The second gave rise to RWE’s second challenge; they said it was procedurally unfair for the inspector to reach the conclusion he did without putting that case to RWE’s experts. The judge did not reach a settled conclusion on this, but at [47] he

inclined to the view that because…there was nothing to alert the claimant or those witnesses to the Inspector’s doubts about that evidence, it was procedurally unfair not to alert the claimant to those doubts.

This problem happens quite often in practice; a judge is by no means bound to agree with one side or the other; he may take an entirely different view, but if this has not been canvassed with the parties, then unfairness can arise.

There is a hint in the inspector’s reasoning ([27] of the judgment, [90] of his report) that he saw something on his site visit that led to his conclusion. If so, even more reason why he should have drawn this to the parties’ attention, even if this was done only after the inquiry was formally closed.

One aspect as to why reasons are particularly important in the planning context is that (unlike most litigation) a particular decision may well not be the end of the story. It is always open to a developer to have another bite of the cherry, by addressing the defects in his last application. The inspector had this in mind; he thought that a relatively minor re-design of the layout of the turbines might remove most, if not all, of the impacts on the peat deposits; however, this was not the application before him.

For planning aficionados, nothing striking or new in this judgment. But for a concise summary of the learning on reasons, it is an excellent place to start.

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