A judge has felt constrained to strike down a “clear” decision approving a wind turbine at a Northamptonshire farm because an inspector failed to provide reasons demonstrating that he had given considerable weight to the harm to the setting of listed buildings.
Deputy judge John Howell QC said that he quashed the planning permission for the 86m high wind turbine at Poplars Farm, Wappenham, “with reluctance”, but was bound to do so by earlier authority.
Expressing misgivings about the extent of the duty on decision-makers to demonstrate in their reasons that “considerable weight” has been given to impact on listed buildings, he said that the status quo encourages legalistic challenges that will not ultimately lead to any better explanation of planning decisions.
Jane Mordue, chair of the Wappenham Wind Turbine Action Group, had argued that the inspector failed to comply with the duty to have special regard to the desirability of preserving the settings of the listed buildings that would be affected by the proposed development properly, or at all.
Juan Lopez had argued on her behalf that the inspector had applied a “simple planning balance” but that section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 required a strong presumption to be applied against any development that causes any harm to a listed building or its setting, a factor which must be given considerable importance and weight.
The judge said that the inspector found that the impact of the proposed development on the setting of a number of listed buildings was “negligible” and that, taking into account that some harm would be caused to the setting of the Grade II* listed Church of St Mary in Wappenham, the inspector concluded that the cumulative harm was “less than substantial”.
As a result, he said that the Inspector’s decision was consistent with his having complied with section 66(1) of the Listed Buildings Act and that there was nothing in the result or in the terms of the decision that showed he did not give at least “considerable weight” to the harm that the proposed development would cause to the setting of each of the listed buildings it would affect.
However, applying Sullivan LJ’s decision in the Court of Appeal in East Northamptonshire District Council and others v Secretary of State for Communities and Local Government and another [2014] EWCA Civ 137, he said that the reasons given by a decision maker must demonstrate that the “considerable weight” was given to any harm to a listed building or its setting.
Although the inspector had considered the harm to the listed buildings affected was in accordance with paragraph 134 of the National Planning Policy Framework, he said “that of itself is insufficient to demonstrate that the inspector attached considerable weight to such harm”.
He concluded: “In this case the Inspector failed to give reasons demonstrating that he had given considerable weight to the harm to the settings of each of the listed buildings that he found would be harmed to some extent by the proposed development. Accordingly, given the reversal of the normal burden of proof inherent in the requirement to provide such a demonstration, it follows that the claimant has suffered substantial prejudice.
However, he added: “I have reached this conclusion, as I regard myself as bound to do so in the light of the East Northamptonshire case and subsequent decisions, but with reluctance, for a number of reasons.
“In my judgment it is clear in this case why the inspector decided to grant planning permission. He thought that the environmental benefits of the renewable energy development proposed outweighed its adverse impact on the landscape (which he found to be significant up to a distance of 0.5km, and moderate thereafter up to a distance of 1km, from its location) and its impact on the settings of various listed buildings (which was less than substantial in the case of the Church of St Mary, Wappenham, negligible in other cases and less than substantial cumulatively). The benefits of the development in his view indicated that planning permission should be granted otherwise than in accordance with the development plan.
“The claimant and others who opposed the development may very well disagree with the judgments that the inspector reached about the benefits and adverse impacts of the proposed development, about the balance to be struck between them and the justification for departing from the development plan. But why the inspector decided to grant planning permission is clear. The basic purpose of the requirement to give reasons was satisfied.”
He said that the additional requirement that a decision maker must “expressly recognise” that considerable weight is to be given to any harm to a listed building or its setting, or that the decision-maker must have “demonstrably” applied that weight, when there is nothing to indicate that he has not done so, appears to be “inconsistent for no good reason” with the presumption of regularity and the general guidance from the House of Lords that the burden is on the applicant to show that any silence or lacuna in the reasons for a decision is such as to raise a substantial doubt that the decision was valid.
He continued: “Further, even if a decision-maker expressly states that considerable weight is to be, or has been, given to any such harm, the reversal of the normal burden of proof may mean that such a statement may not suffice. It is, of course, insufficient merely to pay lip service to any relevant requirement, as this court has said on a number of occasions. The logical consequence of this reversal of the normal burden of proof would be to require decision-makers, when striking any balance, to ‘demonstrably apply’ the weight that they have said that they are giving to such harm. This may be problematic in practice.
“What weight can be regarded as ‘considerable’, or as being not less than ‘considerable’, is at least to some extent indeterminate. Planning decisions often reflect a judgment on the balance to be struck in the circumstances between inherently incommensurable considerations, such as the need for a development and the harm to the environment, rather than the result of a calculation involving the addition and subtraction of precise weights assigned to particular considerations.
“A requirement that it must be demonstrated that a particular weight has been given to a particular consideration, therefore, is likely to generate exegetical sophistication in the interpretation of decision letters (and of officers’ reports to local authority committees) in order to raise the possibility of a concealed error. Such a requirement may also encourage claims that further requirements need to be satisfied before it can be concluded that the reasons given could not conceal any error, requirements that are likely to involve excessive legalism but which will not lead to any better explanation of any decision.”
Mordue v Secretary of State for Communities and Local Government Planning Court (Deputy Judge John Howell QC) 9 March 2015
Juan Lopez for the claimant
Charles Banner (instructed by Wilkin Chapman LLP) for the second defendant
