1. Although see Holder, J ‘Law and landscape: the legal construction and protection of hedgerows’ (1999) 62 MLR 100 CrossRefGoogle Scholar; less directly, Olwig, KR ‘The law of landscape and the landscape of law’ in Howard, P, Thompson, I and Waterton, E (eds) The Routledge Companion to Landscape Studies (London: Routledge, 2013)Google Scholar. I am also grateful to Victoria Jenkins for discussions on this topic.

2. See Holder, ibid. See also the casual listing of nineteenth century industrial legislation in Drabble, M A Writer's Britain: Landscape in Literature (London: Thames and Hudson, 1979) p 204.Google Scholar

3. Offshore generating stations over 100 Mw, and until 2015 onshore generating stations over 50 Mw, see below n 24.

4. See eg Aitken, M ‘Wind power planning controversies and the construction of “expert” and “lay” knowledges’ (2009) 18 Science as Culture 47 CrossRefGoogle Scholar; Wynne, B ‘Creating public alienation: expert cultures of risk and ethics on GMOs’ (2001) Science as Culture 446 Google ScholarPubMed; Petts, J and Brooks, C ‘Expert conceptualisations of the role of lay knowledge in environmental decision making: challenges for deliberative democracy’ (2006) 38 Environment and Planning A 1045 CrossRefGoogle Scholar; Scott, JC Seeing like a state: how certain schemes to improve the human condition have failed (New Haven, CT: Yale University Press, 1998)Google Scholar especially ch 8.

5. Much of the literature has been about overcoming opposition, Aitken, M ‘Why we still don't understand the social aspects of wind power: a critique of key assumptions within the literature’ (2010) 38 Energy Policy 1834 CrossRefGoogle Scholar.

6. Aitken, above n 4.

7. Secretary of State decision letter, Department of Energy and Climate Change, 11 September 2015. All of the material discussed here is available at https://infrastructure.planninginspectorate.gov.uk/.

8. Twelve development consent orders for wind farms had been granted up to this date. The Mynydd y Gwynt Wind Farm was subsequently rejected by the Secretary of State on 20 November 2015, following a recommendation to approve by the ExA. The Secretary of State was unable to conclude that there would be no impact on the integrity of a Special Protection Area. S Treger and P Grace ‘”There weren't a few birds”: the Mynydd y Gwynt Wind Farm DCO refusal and the Habitats Regulations’ [2016] JPEL 545. These cases do not mark the end of nationally significant wind development: a development consent order was granted to the Hornsea Offshore Wind Farm (Project 2) on 16 August 2016.

9. Howard, Thompson and Waterton, above n 1.

10. The applicant also put forward a Turbine Area Mitigation Option (TAMO), with fewer turbines over a smaller area, primarily to address landscape issues.

11. Planning Act 2008, s 74.

12. See Bruno Latour's slightly amused discussion of the role of the ‘Commissioner’ in the French Conseil d'Etat The Making of Law: An Ethnography of the Conseil d'Etat (Cambridge: Polity Press, 2010) ch 5.

13. The ExA Report for Navitus is especially lengthy at 521 pages plus appendices.

14. That the distinction between fact or planning judgment is not always easily drawn, Lord Luke of Pavenham v Minister of Housing and Local Government [1968] QB 172, is perhaps self-evident from the perspective taken in this article. The parties must be given an opportunity to respond to any disagreement on the facts, Infrastructure Planning (Examination Procedure) Rules, SI 2010/103, r 19.

15. https://infrastructure.planninginspectorate.gov.uk/projects/south-east/navitus-bay-wind-park/?ipcsection=docs&stage=7&filter1=Recommendations.

16. Section 104(7). See the discussion in M Lee et al ‘Public participation and climate change infrastructure’ (2013) 25 JEL 33.

17. DECC, Overarching National Policy Statement for Energy (EN-1) (2011); DECC, National Policy Statement on Renewable Energy Infrastructures (EN-3) (2011).

18. Lee et al, above n 16; Y Rydin, M Lee and S Lock ‘Public engagement in decision-making on major wind energy projects’ (2015) 27 JEL 139.

19. EN-1, above n 17, paras 5.9.8, 5.9.21.

20. ExA Report and Recommendations, Clocaenog Forest Wind Farm (2014) is particularly striking.

21. ExA Report and Recommendations, Navitus Bay Wind Park (2015) para 21.2.77.

22. Ibid, para 7.3.269. Note also the dismissal of claims of a precedent in the approach taken to the nearby, consented, Rampion wind farm, see ExA Report and Recommendations, Rampion Offshore Wind Farm (2014).

23. The previous Labour government had been especially positive about wind energy, and note the presence of Liberal Democrat Secretary of State in the Department of Energy and Climate Change 2010–2015.

24. Onshore wind has been removed from the NSIP regime in England (Infrastructure Planning (Onshore Wind Generating Stations) Order 2016, SI 2016/306); local decision making is now governed by fairly hostile policy: planning permission should only be granted where ‘following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing’, House of Commons: Written Statement (HCWS42) Department for Communities and Local Government (Greg Clark),18 June 2015, http://planningguidance.communities.gov.uk/blog/guidance/renewable-and-low-carbon-energy/particular-planning-considerations-for-hydropower-active-solar-technology-solar-farms-and-wind-turbines/. Paragraph: 015 Reference ID: 5-015-20140306. In Wales, Developments of National Significance (Specified Criteria and Prescribed Secondary Consents) (Amendment) (Wales) Regulations 2016 provide that onshore wind farms over 50 Mw, like those between 10–50 Mw, are ‘Developments of National Significance’, which under the Planning (Wales) Act 2015 are decided by the Welsh Ministers.

25. Notwithstanding an apparent ‘bar’ on policy challenges. For earlier examples, see Owens, S ‘Siting, Sustainable Development and Social Priorities’ (2004) 7 Journal of Risk Research 101 CrossRefGoogle Scholar.

26. Material changes to a National Policy Statement must be subject to a sustainability appraisal and public consultation, and laid before Parliament, Planning Act 2008, s 6. A strategic environmental assessment may also be required.

27. This is for another day. The literature is both vast and not quite on point, but see eg Stirling, A ‘“Opening up” and “closing down”: power, participation and pluralism in the social appraisal of technology’ (2008) 33 Science, Technology and Human Values 262 CrossRefGoogle Scholar; Wynne, B ‘Seasick on the third wave? Subverting the hegemony of propositionalism’ (2003) 33 Social Studies of Science 401 CrossRefGoogle Scholar; Lee, M, ‘The legal institutionalisation of public participation in the EU governance of technology’ in Brownsword, R, Scotford, E and Yeung, K (eds) Oxford Handbook on the Law and Regulation of Technologies (Oxford: Oxford University Press, 2016)Google Scholar.

28. Even ‘the’ central issue, eg Wolsink, M ‘Planning of renewables schemes: deliberative and fair decision-making on landscape issues instead of reproachful accusations of non-cooperation’ (2007) 35 Energy Policy 2692 CrossRefGoogle Scholar; Woods, M ‘Conflicting environmental visions of the rural: windfarm development in mid-Wales’ (2003) 43 Sociologia Ruralis 271 CrossRefGoogle Scholar; Aitken, M, McDonald, S and Strachan, P ‘Locating “power” in wind power planning processes: the (not so) influential role of local objectors’ (2008) 51 Journal of Environmental Planning and Management 777 CrossRefGoogle Scholar.

29. See also EN-1, above n 17, para 5.9.1.

30. Other than those very far out to sea eg ExA Report and Recommendations, Hornsea Offshore Wind Farm Project 2 (2016); at 90km out to sea, the project cannot be seen from the shore, para 5.8.3. Even far offshore, however, there is inevitably associated land-based development.

31. See eg O Woolley ‘Trouble on the horizon? Addressing place-based values in planning for offshore wind energy’ (2010) 22 JEL 223.

32. See eg J Raban ‘Second nature’ (2008) 102 Granta https://granta.com/second-nature/, including a discussion of ‘landscaping in reverse’, see also Olwig, K ‘Virtual enclosure, ecosystem services, landscape character and the “re-wilding” of the commons: the Lake District case’ (2016) 41 Landscape Research 253 CrossRefGoogle Scholar. Note the narrow approach to ‘natural’ beauty in Meyrick Estate Management Ltd v Secretary of State for the Environment, Food and Rural Affairs [2007] Env LR 26.

33. Much of the literature referred to here raises this at least implicitly. On ‘co-production’, see especially Jasanoff, S (ed) States of Knowledge: The Co-Production of Science and Social Order (London: Routledge, 2004)CrossRefGoogle Scholar.

34. Schama, S Landscape and Memory (London: Harper Collins, 2004) p 61 Google Scholar.

35. Drabble, above n 2, p 7.

36. Devine-Wright, P and Howes, Y ‘Disruption to place attachment and the protection of restorative environments: a wind energy case study’ (2010) 30 Journal of Environmental Psychology 271 CrossRefGoogle Scholar, citations omitted, see also the discussion of ‘place identity’. B Wattchow ‘Landscape and a Sense of Place: A Creative Tension’ in Howard, Thompson and Waterton, above n 1.

37. Devine-Wright and Howes, ibid.

38. See eg V Plumwood ‘Shadow places and the politics of dwelling’ (2008) 44 Australian Humanities Review http://www.australianhumanitiesreview.org/archive/Issue-March-2008/plumwood.html; MacDonald, H H is for Hawk (London: Penguin Random House, 2014) ch 28Google Scholar.

39. Schama, above n 34, p 7.

40. See eg Mabey, R Nature Cure (London: Vintage, 2008)Google Scholar; MacDonald, above n 38; Liptrot, A The Outrun (Edinburgh: Canongate Books, 2016)Google Scholar.

41. See eg Rebank, J The Shepherd's Life (London: Penguin, 2015)Google Scholar, which read next to Olwig, above n 32, speaks to the potential contest over ‘community’; McFarlane, R Mountains of the Mind (London: Granta Books, 2003)Google Scholar.

42. R McFarlane ‘Why we need nature writing’ New Statesman 2 September 2015.

43. M Cocker ‘Death of the naturalist: why is the new nature writing so tame?’ New Statesman 17 June 2015.

44. EN-1 and EN-3, above n 17, and the ExA Reports deal with ‘biodiversity’ separately from landscape and visual impacts.

45. See Drabble's chapter on ‘The Industrial Scene’, including discussion of mixed feelings towards ordinary (and ugly) urban landscapes, above n 2.

46. Council of Europe, ETS No.176, Articles 1, 2 and 5.

47. Natural England, Summary of Evidence: Landscape (2015) para 3.4.

48. Landscape Institute and Institute of Environmental Management and Assessment Guidelines for Landscape and Visual Impact Assessment (2013) especially ch 2.

49. Above n 17, para 2.6.200 and 2.6.203.

50. EN-1, above n 17, para 5.9.18.

51. Navitus, above n 21, para 7.2.29.

52. A Butler ‘Dynamics of integrating landscape values in landscape character assessment: the hidden dominance of the objective outsider’ (2016) 41 Landscape Research 238; K Olwig ‘The practice of landscape conventions and the just landscape: the case of the European Landscape Convention’ (2007) 32 Landscape Research 579.

53. Scott, above n 4, p 11.

54. Which persists in landscape assessment, A Lothian ‘Landscape and the philosophy of aesthetics: is landscape quality inherent in the landscape or in the eye of the beholder?’ (1999) 44 Landscape and Urban Planning 177; P Selman and C Swanwick ‘On the meaning of natural beauty in landscape legislation’ (2010) 35 Landscape Research 3.

55. Y Rydin ‘Re-examining the role of knowledge within planning theory’ (2007) Planning Theory 82 on the framing as ‘knowledge claims’.

56. Ibid. On the fragmentation and social construction of knowledge in regulation more generally, see J Black ‘Decentring regulation: understanding the role of regulation and self-regulation in a “post-regulatory” world’ (2001) 54 Current Legal Problems 103.

57. B Wynne ‘May the sheep safely graze? A reflexive view of the expert-lay knowledge divide’ in S Lash, B Szerszynski and B Wynne (eds) Risk, Environment and Modernity: Towards a New Ecology (London: Sage, 1996); M Pieraccini ‘Rethinking Participation in Environmental Decision-Making: Epistemologies of Marine Conservation in South-East England’ (2015) 27 JEL 45.

58. Rydin, above n 55.

59. Rydin, ibid, argues that there should be a claim of causality. H Collins and R Evans ‘The third wave of science studies: studies of expertise and experience’ (2002) 32 Social Studies of Science 235 argue that experience is not knowledge, but see Wynne, above n 27.

60. In a different context, Wynne, above n 57 and ‘Misunderstood misunderstanding: social identities and public uptake of science’ (1992) Public Understanding of Science 281.

61. See eg Lee et al, above n 16; C Armeni ‘Participating in environmental decision-making: reflecting on planning and community benefits for major wind farms’ (2017) JEL forthcoming.

62. A Sarat, L Douglas, M Merrill Umphrey ‘Complexity, contingency and change in law's knowledge practices’ in A Sarat, L Douglas, M Merrill Umphrey (eds) How Law Knows (Stanford, CA: Stanford University Press, 2007) 2.

63. Above n 17, para 5.9.8.

64. Navitus, above n 21, all para 7.3.5.

65. Arts 1–4.

66. UNESCO Convention Concerning the Protection of the World Cultural Heritage (1972).

67. Criterion viii, UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention (2015) WHC.15/01. On the Jurassic Coast, see http://whc.unesco.org/en/list/1029

68. EN-1, above n 17, para 5.8.14.

69. Above n 21, paras 9.3.14, 9.3.10.

70. See more generally N Hewitson ‘Heritage assets and their setting: views from a lawyer’ [2015] JPEL 13 Supp OP66. Planners are generally obliged to have ‘special regard’ to the ‘setting’ of listed buildings, Planning (Listed Buildings and Conservation Areas) Act 1990, s 66; Jones v Mordue [2016] JPEL 476 (CA). For NSIPs, ‘regard’ must be had, Infrastructure Planning (Decisions) Regulations 2010, SI 2010/305, reg 3).

71. Above n 21, para 9.3.15.

72. DECC, above n 17, paras 23–29.

73. ExA report, above n 21, para 9.3.15.

74. Ibid, para 9.3.20.

75. Development within a designated area should only be granted ‘in exceptional circumstances’, EN-1, above n 17, para 5.9.10; the applications discussed here are for projects that affect designated areas.

76. National Parks and Access to the Countryside Act 1949, s 5.

77. Countryside and Rights of Way Act 2000, s 82. Natural Environment and Rural Communities Act 2006, s 99 confirms that human intervention in the landscape (including explicitly agriculture, woodlands or park) does not prevent land being of (outstanding) natural beauty, under any enactment. This was a response to the narrow interpretation of ‘natural’ beauty in Meyrick, above n 32.

78. Natural England Corporate Report: Heritage Coasts: Definition, Purpose and Natural England's Role (2015). Heritage coasts are not statutorily designated, but are ‘defined’ by agreement between the relevant local authorities and Natural England.

79. Landscape character assessments are discussed extensively in ExA reports. They are a process for identifying landscapes spatially and then characterising them as particular types of particular value, see Special Issue Landscape Research (2016) 41(2).

80. Above n 21, para 21.2.27.

81. See eg S Jasanoff ‘Serviceable truths: science for action in law and policy’ (2015) 93 Texas Law Review 1723; Latour, above n 12, on the ‘arret’. Objectors of course are not likely to want to unsettle the award of a designation, since it supports their claims.

82. Butler, above n 52.

83. Selman and Swanwick, above n 54. There have been no recent new AONBs, but boundary variations are more common, and do include consultation and reporting, http://www.suffolkcoastandheaths.org/about-us/aonb-boundary-review/. An order must be confirmed by either a minister or the National Assembly for Wales, Countryside and Rights of Way Act 2000, s 83; National Parks and Access to the Countryside Act 1949, s 7, schedule 1.

84. Natural England Guidance for Assessing Landscapes for Designation as National Park or Area of outstanding Natural Beauty in England (2011) para 6.3.

85. Meyrick, above n 32.

86. See Olwig, above n 52, arguing that the meaning of landscape is found in the process rather than in a top down definition (or in scientific reasoning); Selman and Swanwick, above n 54.

87. Countryside and Rights of Way Act 2000, s 89.

88. Selman and Swansick, above n 54.

89. Cited in Navitus, above n 21, para 7.3.50.

90. Dorset AONB Management Plan 2014-2019, http://www.dorsetaonb.org.uk/the-dorset-aonb/management-plan.

91. Butler, ibid.

92. Above n 46.

93. Although ‘local landscape designations should not be used in themselves to refuse consent’, EN-1, above n 17, para 5.9.14.

94. Navitus, above n 21, para 7.3.234 onwards.

95. Ibid, para 7.3.258.

96. Countryside and Rights of Way Act 2000, s 85; National Parks and Access to the Countryside Act 1949, s 11A(2) and s 5(1).

97. Rampion, above n 22, para 4.53.

98. The decision not to have public inquiries under the Planning Act 2008 seems to have sidestepped some of the boundary work around the personal qualities of the speaker when evidence enters law. See Aitken above n 4; in courts, S Jasanoff Science at the Bar: Law, Science and Technology in America (London: Harvard University Press, 1995) especially ch 3.

99. There is a startling example in the applicant's Seascape, Landscape and Visual Impact Assessment: ‘large scale, open views / panoramas’ necessarily reduce the susceptibility of a landscape, para 13.3.76. This is however obliquely challenged in the ExA Report as a misapplication of guidance, above n 21, para 7.2.26.

100. EN-1, above n 17, para 5.9.5, footnote 125; including the second edition of the Landscape Institute publication, above n 48.

101. The use of guidance was important to the ExA's explicit finding that the applicant's visualisations had not been ‘deliberately misleading or intentionally under-representative’, above n 21, para 7.2.54 onwards.

102. ‘if the DTI definitions had been used in their complete form then seascapes might have been ascribed higher sensitivity’, ibid, para 7.2.26.

103. See the list of thirteen guidance documents used in the applicant's seascape, landscape and visual impacts assessment, para 13.28.

104. Rydin, Y et al ‘Artefacts, the gaze and sensory experience: mediating local environments in the planning regulation of major renewable energy infrastructure in England and Wales’ in Kurath, M et al (eds) Rethinking Planning: Tracing Artefacts, Agency and Practice (London: Palgrave, forthcoming)Google Scholar.

105. Above n 21, all para 7.2.22.

106. Ibid, para 7.2.38.

107. Ibid, paras 7.2.45, 6.2.46.

108. Links to detailed submissions and documents can be found in Annexes to the ExA Report, above n 21. Most contributions are actually very measured in Navitus, certainly without the emotional intimacy observed in P Burke Wood and J Young ‘A Political ecology of home: attachment to nature and political subjectivity’ (2015) 34 Environment and Planning D 474. Woods, above n 28, notes the failure of emotional claims in planning.

109. Above n 21, para 7.2.1.

110. Ibid, para 7.2.1 and 7.2 generally.

111. Natural Environment and Rural Communities Act 2006, s 2(2)(b).

112. Countryside and Rights of Way Act 2000, s 84.

113. Planning Inspectorate Advice note 1: local impact reports (2012). Local Impact Reports are often a little bland, and as there is no requirement to ‘balance’ the pros and cons of the development, they do not always advocate any particular outcome. But see eg Bournemouth Borough Council para 5.2.12 onwards, Dorset County Council para 5.1.1 onwards, Christchurch Borough Council para 4.54 onwards. Note also the tendency to support the judgments of others when they are perceived to be more expert, eg Dorset County Council and Purbeck District Council support Challenge Navitus' visualisations, Hampshire County Council supports the representations of Dorset County Council, the New Forest District Council and the New Forest National Park Authority in respect of landscape and visual issues.

114. Although some of the material was to be ‘treated with some caution’, above n 21, para 7.2.62.

115. See eg ibid, para 7.3.62.

116. See See eg Clocaenog, above n 20, paras 4.62, 4.70.

117. Planning Inspectorate, above n 113.

118. Executive Summary, para 1.

119. New Forest National Park Authority Local Impact Report, p 13.

120. Above n 21, para 4.0.4.

121. Ibid, paras 7.2.59-60.

122. ExA Report and Recommendations Burbo Bank extension wind farm (2014) para 4.18.

123. Ibid, para 4.19.

124. Above n 22, para 4.342.

125. ExA Report and Recommendations Brechfa Forest West wind farm (2012) para 4.12.

126. Ibid, para 4.30.

127. The Secretary of State has statutory responsibility for making these decisions, see by analogy Wind Prospect Developments Ltd v Secretary of State for Communities and Local Government [2014] EWHC 4041 (Admin).

128. Notwithstanding judicial agreement that a photomontage is ‘no substitute’ for a site visit, the Secretary of State can disagree with a planning inspector on landscape issues, even when the inspector visited the site, but the Secretary of State did not, provided that he ‘had sufficient material before him’, Ecotricity (Next Generation) Limited v Secretary of State for Communities and Local Government [2015] EWCA Civ 657 [35], [38]. Here we see considerations of administrative practicalities shaping the construction of knowledge on landscape.

129. Although they do appear in professional guidelines.

130. Above n 14, r 16.

131. Above n 21, para 1.4.13.

132. Ibid, para 7.2.27, 7.3.108.

133. Ibid, para 7.2.65.

134. Especially interesting are expressions of tranquillity and openness.

135. Rydin, Lee and Lock, above n 18.

136. Ibid, para 7.2.67.

137. Above n 20, para 4.210.

138. Above n 22, para 4.338.

139. Ibid, para 4.340.

140. Jasanoff, above n 33.

141. Butler, above n 52.

142. G Nardell and J Thornton ‘Inspectors and experts: the scope and intensity of the duty to give reasons in cases turning on expert evidence’ [2012] JPEL 888. It may be more arduous evidentially to provide good reasons for disagreement on the facts, but see above n 14.

143. Jasanoff, S ‘The practices of objectivity in regulatory science’ in Camic, C, Gross, N, and Lamont, M (eds) Social Knowledge in the Making (Chicago, IL: University of Chicago Press, 2011)Google Scholar.

144. Although note Jasanoff's observation that the British use of the authority of ‘the great and the good’ in scientific controversy is almost the opposite to distance, ibid. She argues that these elites can provide a ‘view from everywhere’, a common sense knowledge whose truthfulness will appear to all, ibid and Designs on nature: science and democracy in European and the United States (Princeton, NJ: Princeton University Press, 2005). The members of the ExA are named, and so their professional authority is to some degree personalised, but distance may be a greater feature of the sorts of routine regulatory decision making that we are discussing here.

145. Bird modelling in these cases provides an even starker example than landscape; they may not express it in these terms, but it is doubtful that anyone really expects that the modelling of bird mortality provides a real prediction of the numbers of birds that will be killed by the wind farm.

146. Jasanoff, above n 81, p 1725.

147. A Lang ‘Governing “as if”: global subsidies regulation and the benchmark problem’ (2014) 67 Current Legal Problems 135 p 166.

148. This adds another dimension to the need for reflection on models in law, E Fisher, P Pascual and W Wagner, ‘Understanding environmental models in their legal and regulatory context’ (2010) 22 JEL 251.

149. A Lang ‘The legal construction of economic rationalities’ (2013) 40 JLS 155 emphasises ‘the important role that cognitive technologies … play’ in the construction of ‘economic rationality’, p 169. See also Scott, above n 4, for a striking example of the ways new techniques of assessment have shaped forests (and our appreciation of them), ch 1.

150. Scott, ibid.

151. Wynne, above n 27.

152. Something like this may be what is happening in EU regulation of GMOs, see Lee, M ‘The Ambiguity of Multi-level Governance and (De)-harmonisation in EU Environmental Law’ (2013) Cambridge Yearbook of European Legal Studies 357 CrossRefGoogle Scholar (also discussing industrial pollution); Wynne, above n 4.

153. Also Pieraccini, above n 57; Aitken, above n 4, citing Epstein's work with AIDs activists.

154. See the debate between Collins and Evans, above n 59 and Wynne, above n 27.