PP 2010/112

Paragraph 8(3) of Circular 01/01, Arrangements for Handling Heritage Applications, obliges a local planning authority (LPA) outside Greater London to notify English Heritage of any planning application made to it for development that, in its opinion, affects the setting of a Grade I or II* listed building. Regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 requires an LPA separately, in such circumstances, to advertise the application, to send a copy of the advertisement to English Heritage, and not to determine the application for 21 days thereafter. The LPA must also take into account any representations received from English Heritage during that period. One of the two issues before the Court of Appeal in R (on the application of Friends of Hethel Ltd) v South Norfolk District Council [2010] EWCA Civ 894; [2010] PLSCS 219 was whether the LPA’s failure in that case to comply with those requirements justified the quashing of a planning permission. (The appellant appealed against the refusal of the High Court to make such an order.) The LPA had granted planning permission for the erection of three wind turbines. It did not advertise the planning application, nor did it consult English Heritage. The environmental statement accompanying the planning application had sought to assess the potential effect that the wind turbines would have on several Grade I and Grade II* buildings situated within 5km of the application site. It concluded that some of those buildings would be affected but that the actual effect would depend on their distance from the wind turbines. The committee report referred specifically to the environmental statement but advised that the effect was not considered to be so great that it would in itself justify refusing permission. The Court of Appeal held unanimously that the LPA’s failures justified quashing the permission. The question for the purposes of Circular 01/01 and the 1990 Regulations was whether the development would affect the setting of a listed building, not whether it would affect it so seriously as to justify a refusal of permission. Unless the LPA had disagreed with the conclusions in the environmental statement, and this did not appear to be the case from the committee report, it could not rationally have concluded that there would be no effect. The extent of the effect and its significance in terms of setting were precisely the matters on which English Heritage’s expert views should have been sought. John Martin is a freelance writer