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Three of the country’s top judges today upheld Mrs Justice Lang’s decision to quash planning permission granted by the government in March 2012 for the Barnwell Manor wind farm proposal.
The decision of the inspector who granted permission was branded as “fatally flawed” by the court.
Barnwell Manor Wind Energy Ltd had asked the Court of Appeal judges to overturn the High Court decision and revive its plans to build four turbines, each more than 120 metres tall, on land north of Catshead Woods, Brigstock Road, Sudborough, Northamptonshire.
East Northamptonshire Council, English Heritage and the National Trust had successfully claimed at the High Court that the wind farm would spoil the countryside and threaten a number of listed buildings of national significance in the area, including picturesque churches and country houses in surrounding villages. 
They argued that harm would be caused to “heritage assets” in the area, including the Grade I listed Church of All Saints and Church of St Peter, both in Aldwincle, the Grade II listed Church of St Michael and All Angels in Wadenhoe, Wadenhoe House, Grade I listed Drayton House and the National Trust property at Lyveden New Bield.
But, last month, Gordon Nardell QC argued on behalf of the energy company that the judge’s decision to quash the permission was “wrong”.
Nardell argued that the government inspector who granted consent for the scheme had taken the view that its benefits outweighed that it could cause to the landscape and heritage assets. 
However, today Lord Justice Sullivan, one of the country’s most senior judges dealing with planning matters, as he gave the Court of Appeal’s ruling, upheld the High Court decision.
He agreed with Mrs Justice Lang that, in drafting section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990, Parliament intended decision-makers to give “considerable importance and weight” to the desirability of preserving the setting of listed buildings when carrying out a balancing exercise in planning matters.
He continued: “I also agree with her conclusion that the inspector did not give considerable importance and weight to this factor when carrying out the balancing exercise in this decision. 
“He appears to have treated the less than substantial harm to the setting of the listed buildings, including Lyveden New Bield, as a less than substantial objection to the grant of planning permission”. 
He said that, at no stage in the decision letter did the inspector expressly acknowledge the need to give considerable weight to the desirability of preserving the setting of listed buildings, adding: “This is a fatal flaw in the decision.”
Morag Ellis QC had argued on behalf of the council and conservation bodies that no error in the judge’s decision had been shown. 
She claimed that the judge’s analysis of the case demonstrated that the inspector failed properly to assess the effect of the turbines to the extent required by planning policy, and that clearer reasoning was needed from the inspector.

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Nearly half of onshore wind applications in England were rejected in 2013, according to new Department of Energy and Climate Change (DECC) figures which also reveal that the proportion of such applications refused has risen for five straight years.

ImageThe statistics, published in a written Parliamentary answer, show that 141 onshore wind applications involving projects with a generation capacity greater than 0.01 megawatts (MW) were approved and 134 refused in 2013.

The proportion of onshore wind applications rejected has increased each year for the past five years, jumping from 35.9 per cent in 2012 to 48.7 per cent in 2013, the figures reveal.

The statistics also show that the total capacity of the approved applications had fallen by 37 per cent in the last year, from 2,140MW in 2012 to 1,346MW in 2013. But the capacity of refused applications increased by more than 47 per cent over the same period, from 856MW to 1,262MW.

The figures also suggest a trend towards more, smaller onshore wind applications. The average generation capacity of the applications decided in England in 2013 was 9.5MW, down from 12.2MW in 2012 and 10.7MW in 2011, according to the data.

Philip Lewis, regional director Northern England for environmental advisers Atmos Consulting, said that approval rates may have fallen because “onshore wind development has been taking place for a number of years and it is becoming more challenging to identify sites which will be consented in England”.

Lewis added that the refusal rate may also have risen due to the increase in number of smaller applications. He said that such proposals “often do not have the same level of professional support”.

Paul Maile, a partner at law firm Eversheds, said that the increasing number of applications for smaller-sized schemes was not a surprise. He said: “The technology has advanced. Farmers see (wind power) as an income. I suspect there are a number of local authorities supporting smallto medium-sized schemes to demonstrate support for renewables. This makes it harder to approve bigger commercial developments in the same area.”

A study published last November by trade body Renewable UK found that the average generation capacity of UK onshore wind farms that are gaining planning permission is declining and more schemes are being approved at appeal. In its annual report on the state of the industry, the body said that the average size of a project consented in 2012/13 was 11MW, down from 14MW in 2011/12.