Planning appeal – Wind farm – Effect on setting of listed buildings – Inspector deciding harm to setting of heritage assets outweighed by renewable energy benefits of proposed wind farm development – Inspector’s decision quashed on application of local planning authority and others – Section 66(1) of Planning (Listed Buildings and Conservation Areas) Act 1990 – Whether inspector failing to comply with duty under section 66(1) to give special regard to desirability of preserving settings of listed buildings – Whether erring in application of relevant planning policies – Appeal dismissed
The appellant sought planning permission for a wind farm development in Sudborough, Northamptonshire, to comprise five wind turbine generators, a substation and associated works. The first respondent council, as local planning authority, refused permission on grounds relating to the visual and landscape impact of the development and the harm that it would cause to the setting of heritage assets, including Lyveden New Bield, which was a Grade I listed building and a scheduled monument, and several other local listed buildings.
Planning permission was subsequently granted by the fourth respondent’s planning inspector on appeal. The inspector took the view that, while the development conflicted with the development plan, the harm to the setting of heritage assets and to the character and appearance of the surrounding landscape was outweighed by the benefits of the proposal in terms of the contribution that it would make to renewable energy targets.
The inspector’s decision was quashed in proceedings brought by the first to third respondents under section 288 of the Town and Country Planning Act 1990. The second respondent, English Heritage, was a statutory consultee and had been an objector at the inquiry before the inspector. The third respondent, the National Trust, owned Lyveden New Bield and had also been an objector. The judge accepted the respondents’ argument that the inspector had: (i) failed to comply with the duty, under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, to give special regard to the desirability of preserving the settings of listed buildings; and (ii) incorrectly interpreted and applied planning policies on the effect of development on the setting of heritage assets, including those in PPS 5: see [2013] EWHC 473 (Admin); [20134] PLSCS 73. The appellant appealed.
Held: The appeal was dismissed.
(1) Although the inspector’s assessment of the degree of harm to the setting of the listed building was a matter for his planning judgment, he was not then free to give such weight as he chose to that harm when carrying out the balancing exercise. A finding of harm to the setting of a listed building was a consideration to which the decision-maker had to give considerable weight and importance, pursuant to his duty, under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990, to give special regard to the desirability of preserving the settings of listed buildings. In enacting section 66(1), parliament had not intended that the desirability of preserving the settings of listed buildings should simply be given careful consideration by the decision-maker for the purpose of deciding whether there would be some harm; it had intended that that factor should be given considerable importance and weight when the decision-maker carried out the balancing exercise: Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303; [1991] 2 PLR 51 and South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141; [1992] 1 PLR 143, concerning the parallel in relation to conservation areas under section 72, applied; Heatherington (UK) Ltd v Secretary of State for the Environment (1995) 69 P&CR 374; [1994] 2 PLR 9 considered.
Although, as a general proposition, matters of planning judgment were within the exclusive province of the decision-maker, decision-makers could be required by either statute or planning policy to give particular weight to certain material considerations. Section 66(1) was one such example. The requirement to give considerable importance and weight to the policy objective of preserving the setting of listed buildings had been imposed by parliament, which had made the power to grant permission having regard to material considerations expressly subject to the section 66(1) duty: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; [1995] 2 EGLR 147; [1995] 27 EG 154; [1995] 2 PLR 72 distinguished. That general duty would apply with particular force if harm would be caused to the setting of a Grade I listed building. If the harm would be less than substantial, that would lessen the strength of the presumption against the grant of planning permission but it did not follow that the “strong presumption” against the grant of planning permission had been entirely removed.
In the instant case, the inspector had failed to give considerable importance and weight to the desirability of preserving the setting of listed buildings when carrying out the balancing exercise. He appeared 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. At no stage in his decision had he expressly acknowledged the need, if he found that there would be harm to the setting of the many listed buildings, to give considerable weight to the desirability of preserving the setting of those buildings. That was a fatal flaw in the decision.
(2) The inspector had also failed properly to apply PPS 5 and the government Practice Guide thereon. He had failed to assess the contribution made by the setting of Lyveden New Bield, by virtue of its being undeveloped, to the significance of Lyveden New Bield as a heritage asset. He had not grappled with the objectors’ case that the setting of Lyveden New Bield was of crucial importance to its significance as a heritage asset because it was designed to have a dominating presence in the surrounding rural landscape, and to afford extensive views in all directions over that landscape, and that those qualities would be seriously harmed by the visual impact of a modern man-made feature of significant scale in that setting. He had erred in focusing on whether the wind turbines would prevent the public from appreciating the relevant heritage assets and in applying a test of whether a reasonable observer would recognise the wind turbine array to be a modern addition to the landscape, separate from the planned historic landscape at Lyveden New Bield. The contribution that the setting made to the significance of a heritage asset did not depend on there being an ability to access or experience the setting and the extent of the harm to the setting could not be answered simply by applying a “reasonable observer” test.
Gordon Nardell QC and Justine Thornton (instructed by Eversheds LLP) appeared for the appellant; Morag Ellis QC and Robin Green A (instructed by Sharpe Pritchard) appeared for the first to third respondents; the fourth respondent did not appear and was not represented.
Sally Dobson, barrister
