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Tegni Cymru Cyf v The Welsh Ministers & Anor.

Country/Territory
United Kingdom
Type of court
National - higher court
Date
Nov 24, 2010
Source
UNEP, InforMEA
Court name
Court of Appeal
Seat of court
London
Judge
Carnwath, Elias and Pitchford.
Reference number
[2010] EWCA Civ 1635
Language
English
Subject
Air & atmosphere, Energy
Keyword
Land-use planning Noise pollution Protection of habitats Renewable energy Noise standards Energy conservation/energy production Vehicle noise Noise emission Aircraft noise
Abstract
The developer, Tegni Cymru Cyf, had sought permission for a 13 turbine development in an area designated as suitable for such development within WAG guidance. However, there was already one other wind farm that had been built and was operating in the immediate vicinity, another had been consented and at least one more (apart from Gorsedd Bran) was proposed. The High Court judge found that the Inspector had sufficiently explained his planning judgment on visual amenity. However, he found that he had given no adequate exposition of his reasons for his conclusions on noise and therefore quashed the decision on that narrow basis, adding a ‘tentative’ conclusion that, in the light of the support for ETSU-R-97 in TAN 8 and given that this was a Strategic Search Area as identified within that guidance, it was ‘irrational’ to find that the development would comply with those levels but would nevertheless be objectionable, at least in the absence of very particular (and clearly explained) circumstances. In the view of the Court of Appeal, it could not be said that the Inspector was bound to apply ETSU-R-97 even in a TAN 8 area, irrespective of whether there were or were not exceptional circumstances. There are differences in the way that the policies (and policy guidance) are expressed in England and Wales. In England, paragraph 22 of PPS 22 states that ETSU “should be used to assess and rate noise from wind energy development”. In Wales, on the other hand, Annex C of TAN 8 simply says that ETSU “can be regarded as good practice”. For those reasons, as the Court held, it was not possible to say that there was an identifiable error of law or fundamentally erroneous application of principle by the Inspector: essentially, there was therefore no principled basis on which the Court could or should interfere with his ‘planning judgments’.
Full text
COU-159699.pdf