In Howell v Secretary of State for Communities and Local Government [2014] EWHC 3627 (Admin) the claimant applied (unsuccessfully) to quash the decision of an inspector on appeal granting planning permission for a single wind turbine on farmland on the edge of the Norfolk Broads. One of the claimant’s grounds of challenge was that the inspector had failed to comply with his statutory duty under section 17A of the Norfolk and Suffolk Broads Act 1988 (“the NSB Act”). This provides, inter alia, that the Secretary of State (and hence his inspector) in exercising or performing any functions in relation to, or so as to affect, land in the Broads shall “have regard to” the purposes of conserving and enhancing the natural beauty, wildlife and cultural heritage of the Broads.
The claimant submitted that the inspector had fallen into the same trap as had occurred in East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137. There, it was held that an inspector had failed to comply with the duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the PLBCA Act”), as respects granting planning permission for development that affects a listed building or its setting, to “have special regard to” the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.
The court rejected the claimant’s argument, stating that East Northamptonshire was not directly applicable. In that case, it had been held that the words in section 66(1) of the PLBCA Act “have special regard to” meant that considerable importance and weight had to be given to the desirability of preserving a heritage asset and its setting, when balancing the development proposals against other material considerations. It raised a presumption against granting planning permission.
However, the words in section 17A of the NSB Act “have regard to” simply meant that the matter must be specifically considered, and not that it must be given greater weight than other matters. (The judge emphasised this by stating that it did not create “some sort of trump card”.) In this respect the NSB Act followed other planning legislation, such as section 70(2) of the Town and Country Planning Act 1990.
John Martin is a planning law consultant
