Town and country planning – Solar farm – Conservation area – Claimant applying for judicial review of defendants’ decision to grant planning permission for temporary change of use from agriculture to agriculture and solar photovoltaic farm – Whether planning committee failing properly to interpret policies in core strategy – Application granted
The defendant local authority granted planning permission to the interested party for the proposed temporary change of use from agriculture to agriculture and solar photovoltaic farm at Mapperton Farm, Almer, Blandford Forum, Dorset together with with associated static arrays of photovoltaic panels together with cabins to contain inverter cabinets and transformers and a cabin to house a substation, with perimeter deer fencing, landscaping and ecological enhancements. About one kilometre from the site lay Charborough Park, a grade I listed building which sat in a grade II registered park and garden. Also within the park was the grade II listed Charborough Tower. The hamlet of Mapperton was within a conservation area.
The claimant applied for judicial review of the decision to grant planning permission on the grounds that the planning officer and subsequently members of the committee had: (i) failed properly to interpret policy HE1 of the Core Strategy (Valuing and Conserving our Historic Environment) and so mistakenly concluded that the proposed development conformed with the policy; (ii) failed to consider whether the proposed development complied with the heritage criterion of policy ME5 of the Core Strategy; and (iii) failed to apply section 38(4) of the Planning and Compulsory Purchase Act 2004.
Held: The application was granted.
(1) It was clear from the officer’s report that he was advising the members of the committee that some harm had been found to designated heritage assets which had to be weighed against the public benefit of the proposal pursuant to paragraph 134 of the national planning policy framework (NPPF). In assessing whether there would be harm, it was necessary to consider its effect on the significance of the heritage asset, i.e. its value because of its historic interest. Significance could be harmed through development within the setting of a heritage asset. On a straightforward non-legalistic reading of the report, the officer was advising members that there would be harm, albeit less than substantial harm, to the significance of heritage assets from the proposal being within the settings of the conservation area, the tower and the park.
That meant that there would be a conflict with policy HE1 which provided that heritage assets would be conserved and their significance protected. Conservation and preservation were synonyms for those purposes. In a conservation area, special attention was to be paid to the desirability of preserving or enhancing its character or appearance: see section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. It had long been held that “preserving” in that context meant not harming. So a heritage asset was not conserved if its significance was harmed and that significance was not protected if it would be harmed by a development proposal. The fact that the harm might only be temporary had no bearing on how policy was properly interpreted. There was nothing in policy HE1 to suggest it permitted harm provided that it was only temporary. The officer had wrongly interpreted the policy when he advised members that, in the circumstances, the proposal would accord with the policy. There was no suggestion the members did not follow that advice and did not adopt the same view in deciding to grant planning permission. Therefore they had been significantly misled on that point by the report.
(2) A proper reading of policy ME5 required a view to be formed whether a proposal for renewable energy apparatus would avoid harm to the significance and setting of heritage assets. The officer had identified that the proposed development would cause such harm and he should have advised the members that the last criterion had not been met by the proposal as harm would not be avoided. The criteria had to be met for a proposal to be permitted to go beyond the requirement that any adverse impacts should have been minimised to an acceptable level. Each criterion identified what would be acceptable. So far as heritage assets were concerned, only an avoidance of harm was acceptable. The officer should have advised the members of that and his report had significantly misled members.
(3) There was considerable doubt whether the officer and then the members were of the view that the development proposed was in accordance with the development plan, taken as a whole or not. The difficulty was compounded by the fact that the officer, having identified harm to the significance of heritage assets, had wrongly interpreted policy HE1 in finding that there was no conflict with it. Further, he had failed properly to consider the heritage criterion in policy ME5. In those circumstances, the defendants had not carried out their duty arising from section 38(6) of the 2004 Act to decide whether the proposed development was or was not in accordance with the development plan.
(4) It could not be said that the members would have been highly likely to vote to grant planning permission if they had been properly advised that the proposal before them was in breach of the key policies of the development plan dealing with heritage assets (HE1) and renewable energy (ME5). On a redetermination of the planning application, it would be open to them so to decide in their planning judgment but that was for them, having properly understood and considered the development plan. Accordingly, section 31(2A) of the Senior Courts Act 1981 did not require the court to refuse relief and the planning permission would be quashed.
Andrew Parkinson (instructed by Richard Buxton Environmental and Public Law Solicitors) appeared for the claimant; Martin Edwards (instructed by East Dorset District Council) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Butler) v East Dorset District Council.
