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 – 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 – Claim allowed The second defendant applied for planning permission for a wind farm development in Sudborough, Northamptonshire, to comprise five wind turbine generators, a substation and associated works. The first claimant 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 the Lyveden New Bield scheduled monument and several other local listed buildings. The second defendant’s appeal against that decision was allowed by the first defendant’s planning inspector, who considered 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. He granted planning permission accordingly. The claimants applied to quash the permission under section 288 of the Town and Country Planning Act 1990. The second claimant, English Heritage, was a statutory consultee and had been an objector at the inquiry before the inspector. The third claimant charity, the National Trust, owned Lyveden New Bield and had also been an objector. The claimants contended 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, PPS 22 and English Heritage guidance. The first defendant conceded that the inspector’s decision should be quashed; the second defendant sought to uphold the grant of planning permission. Held: The claim was allowed. (1) Since the development proposal affected the setting of listed buildings, the planning application had to be considered in accordance with the statutory duty under section 66(1) of the 1990 Act to give special regard to the desirability of preserving the setting of listed buildings. The effect of that duty was that a high priority should be given the statutory objective and that considerable weight and importance should be accorded to that consideration: South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141; [1992] 1 PLR 143 and Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303; [1991] 2 PLR 51 applied. The preservation of the setting of listed buildings accorded with the relevant development plan in the instant case. The inspector had found that the proposed development would not accord with the development plan and that it would harm heritage assets. He had balanced the identified harm to the heritage assets against the benefits that the proposal would provide and had concluded that the renewable energy benefits would outweigh that harm. In doing so, he had failed to give proper effect to the duty under section 66(1) of the 1990 Act. The concept of “preservation” in section 66(1) included keeping safe from harm. Under section 66(1), the preservation of setting was to be treated as a desired or sought-after objective, to which the inspector should accord special regard. That went beyond a mere assessment of harm. At no stage in the balancing exercise had the inspector accorded special weight or considerable importance to the desirability of preserving the setting of the heritage assets. He had wrongly treated the harm to the setting and the wider benefit of the wind farm proposal as if those two factors were of equal importance. (2) The inspector had also erred in his application of relevant planning policies on the effect of development on the setting of heritage assets. He had failed adequately to summarise the intrinsic significance of certain of the heritage assets. He had failed to state whether they were significant on archaeological, architectural, artistic or historic grounds and had not identified the contribution that the setting of those assets made to their significance. His assessment of the effect of the development proposal on the setting and significance of each heritage asset was too limited. He had regarded as the decisive factor the ability of the reasonable observer to distinguish the modern array from the historic landscape or building. In doing so, he had wrongly limited his assessment to the ability of the public to understand each asset, thus failing to consider the contribution that the setting made to its significance. The relevant planning policies, including PPS 5 and the government practice guidance thereon, required a wider assessment to be taken. The inspector had also failed to give adequate reasons for his decision. Morag Ellis QC and Robin Green (instructed by Sharpe Pritchard) appeared for the claimants; the first defendant did not appear and was not represented; David Hardy, solicitor advocate, of Eversheds LLP, appeared for the second defendant. Sally Dobson, barrister
East Northamptonshire District Council and others v Secretary of State for Communities and Local Government and another
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 – 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 – Claim allowed
The second defendant applied for planning permission for a wind farm development in Sudborough, Northamptonshire, to comprise five wind turbine generators, a substation and associated works. The first claimant 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 the Lyveden New Bield scheduled monument and several other local listed buildings.
The second defendant’s appeal against that decision was allowed by the first defendant’s planning inspector, who considered 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. He granted planning permission accordingly.
The claimants applied to quash the permission under section 288 of the Town and Country Planning Act 1990. The second claimant, English Heritage, was a statutory consultee and had been an objector at the inquiry before the inspector. The third claimant charity, the National Trust, owned Lyveden New Bield and had also been an objector. The claimants contended 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, PPS 22 and English Heritage guidance.
The first defendant conceded that the inspector’s decision should be quashed; the second defendant sought to uphold the grant of planning permission.
Held: The claim was allowed.
(1) Since the development proposal affected the setting of listed buildings, the planning application had to be considered in accordance with the statutory duty under section 66(1) of the 1990 Act to give special regard to the desirability of preserving the setting of listed buildings. The effect of that duty was that a high priority should be given the statutory objective and that considerable weight and importance should be accorded to that consideration: South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141; [1992] 1 PLR 143 and Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303; [1991] 2 PLR 51 applied.
The preservation of the setting of listed buildings accorded with the relevant development plan in the instant case. The inspector had found that the proposed development would not accord with the development plan and that it would harm heritage assets. He had balanced the identified harm to the heritage assets against the benefits that the proposal would provide and had concluded that the renewable energy benefits would outweigh that harm. In doing so, he had failed to give proper effect to the duty under section 66(1) of the 1990 Act. The concept of “preservation” in section 66(1) included keeping safe from harm. Under section 66(1), the preservation of setting was to be treated as a desired or sought-after objective, to which the inspector should accord special regard. That went beyond a mere assessment of harm. At no stage in the balancing exercise had the inspector accorded special weight or considerable importance to the desirability of preserving the setting of the heritage assets. He had wrongly treated the harm to the setting and the wider benefit of the wind farm proposal as if those two factors were of equal importance.
(2) The inspector had also erred in his application of relevant planning policies on the effect of development on the setting of heritage assets. He had failed adequately to summarise the intrinsic significance of certain of the heritage assets. He had failed to state whether they were significant on archaeological, architectural, artistic or historic grounds and had not identified the contribution that the setting of those assets made to their significance. His assessment of the effect of the development proposal on the setting and significance of each heritage asset was too limited. He had regarded as the decisive factor the ability of the reasonable observer to distinguish the modern array from the historic landscape or building. In doing so, he had wrongly limited his assessment to the ability of the public to understand each asset, thus failing to consider the contribution that the setting made to its significance. The relevant planning policies, including PPS 5 and the government practice guidance thereon, required a wider assessment to be taken. The inspector had also failed to give adequate reasons for his decision.
Morag Ellis QC and Robin Green (instructed by Sharpe Pritchard) appeared for the claimants; the first defendant did not appear and was not represented; David Hardy, solicitor advocate, of Eversheds LLP, appeared for the second defendant.
Sally Dobson, barrister
