Planning permission – Wind turbine – Listed building – Harm – Claimant challenging decision of defendant secretary of state allowing appeal against refusal of planning permission for wind turbine – Whether inspector failing to take account of harm to listed buildings and scheduled ancient monuments (SAMs) – Whether inspector misinterpreting development policy – Whether inspector failing to have regard to national planning policy framework (NPPF) – Claim dismissed
An inspector appointed by the defendant secretary of state allowed an appeal by the owner of Bocaddon Farm, Lanreath, near Looe in Cornwall, against a refusal of planning permission for the erection of a wind turbine on the farm. The defendant granted permission for a single wind turbine with a maximum blade tip height of 75 metres, an associated access track, new field entrance, crane hardstanding and an electrical switchgear house with associated underground cabling and temporary construction compound.
The claimant owned a neighbouring eight-acre farm from which he operated a holiday cottage business and had objected to the application at every stage. The claimant sought to challenge the inspector’s decision under section 288 of the Town and Country Planning Act 1990 contending that the inspector had: (i) failed to take account of the harm which would be caused to the settings of two listed buildings and had irrationally, or without giving reasons, found that there would be no harm, thereby failing to apply the duty under section 66(1) of the Planning (Listed Building and Conservation Areas) Act 1990; (ii) failed to apply local development plan policies and national policy to the impact of the proposed development on the settings of scheduled ancient monuments (SAMs); (iii) misinterpreted, overlooked or applied irrationally development plan policy REN 2 when he failed to treat adverse impact by a development on SAMs as being in breach of that policy; (iv) failed to have regard to national policy in paragraph 132 of the national planning policy framework (NPPF), by failing to identify a clear and convincing justification for the harm to the SAMs which would be affected by the development.
Held: The claim was dismissed.
(1) In considering whether to grant planning permission for development which affected a listed building, or its setting, section 66 of the Planning (Listed Building and Conservation Areas) Act 1990 required an inspector 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 possessed. A decision maker had to give considerable importance and weight to the desirability of preserving the setting of listed buildings when carrying out the exercise under section 66: East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137; [2014] 1 EGLR 23 considered. No equivalent statutory duty existed with regard to SAMs, but they were by definition of national importance: see section 1(3) of the Ancient Monuments and Archaeological Areas Act 1979 and the same policy tests for assessment of impact were applied to listed buildings and SAMs in the NPPF.
(2) It was important to read the NPPF as a whole. By virtue of paragraph 132, great weight had to be attached to the asset’s conservation. The more important the asset the greater the weight should be. Any harm or loss which would be caused by a development to the significance of a designated heritage asset required convincing justification. Substantial harm which would be caused by a development to the significance of a Grade II listed building should be exceptional and substantial harm which would be caused by a development to the significance of a SAM should be wholly exceptional. In the event of an assessment that substantial harm would be caused by a development to the significance of a designated heritage asset, the decision maker should apply the criteria in paragraph 133 and in the event of an assessment that less than substantial harm would be caused to the significance of a designated heritage asset, that harm had to be weighed against the public benefits of the proposal, including securing its optimum viable use, pursuant to paragraph 134.
(3) In the present case, the inspector had been entitled to form his own view of the effect of the development on heritage sites. Although he had not spelled out the effects of the section 66 duty on the two listed buildings in question, given his conclusion, he had no need to do so, as he found no cogent evidence of any adverse effects on any listed building or its setting. In any event, the court could not conceive that the result would have been any different in the context of this case: East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137; [2014] 1 EGLR 23 distinguished.
(4) Although the inspector had not addressed the impact of the proposed development on the settings of SAMs in terms, neither the claimant nor any other objector had invited him to do so. Moreover, given the finding of low magnitude impact with an overall slight adverse effect (on a SAM more than three kilometres away), it was hard to see how it would have affected the outcome of the appeal.
(5) The court rejected the contention that the development should have been found to be in conflict with REN 2. In any event, it was inconceivable that the inspector would have given it any weight in the light of the subsequent NPPF and its more nuanced approach.
(6) Paragraph 134 of the NPPF could be a trap for the unwary if taken out of context. The significance of a heritage asset still carried weight at the balancing stage required by paragraph 134. Thus the value and significance of the asset would still be placed on one side of the balance. The process of determining the degree of harm, which underlay paragraph 132 of the NPPF itself involved taking into account the value of the heritage asset in question. The decision maker had to assess the actual significance of the asset and the actual effects upon it. How one struck the balance set out in paragraph 134, or what weight one gave the benefits on the one side and the harm on the other, was a matter for the decision maker. Unless one gave reasons for departing from the policy, one could not set it aside and prefer using some different test. In the present case, the inspector had taken a great deal of care in his assessment of the value of the SAMs, following the sequential approach indicated in the NPPF. It was a thorough professional assessment which gave full weight to the value of the SAMs in question: R (on the application of Hughes) v South Lake District Council [2014] EWHC 3979 (Admin); [2014] PLSCS 335 followed.
Richard Harwood QC (instructed by Richard Buxton) appeared for the claimant; Richard Honey (instructed by the Treasury Solicitor) appeared for the defendant.
Eileen O’Grady, barrister