Town and country planning – Listed building – Harm – Grant of planning permission for wind turbine – Proper approach to consideration of effect on setting of listed buildings – Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 – Reasons for decision – Whether planning permission properly quashed where decision-maker in fact complying with section 66 duty albeit reasons for decision failing positively to demonstrate that fact – Appeal allowed
The appellant applied for planning permission for the erection of a single free-standing wind turbine, with associated hard standing, access road and electricity substation, on his farm at Wappenham in South Northamptonshire. Planning permission was granted by the second respondent’s planning inspector, on appeal from the third respondent local planning authority. Since the wind turbine would impinge to a certain extent on views of a nearby Grade II* listed church, and to a lesser extent on the setting of another listed church and a listed manor house, and since listed buildings and their settings were accorded special protection under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Listed Buildings Act), the inspector was obliged to give considerable weight to the harm to the listed buildings.
In granting permission, the inspector referred to local plan policy EV12 and para 134 of the National Planning Policy Framework (NPPF), both of which were concerned with heritage assets. He found that the adverse effect of the development on the character of the landscape was limited to a small area and that no heritage asset in the area would suffer substantial harm. He concluded that the harm was outweighed by the environmental benefits of the development.
The first respondent applied under section 288 of the Town and Country Planning Act 1990 to quash the grant of planning permission, partly on the ground that the inspector had failed properly to discharge his duty under section 66 of the Listed Buildings Act. Allowing the claim, the deputy judge held that, while the first respondent could not show that the inspector had in fact failed to give considerable weight to any harm to the setting of the listed buildings, the inspector’s decision was nonetheless defective since the reasons which he had given for his decision failed to demonstrate the compliance with section 66.: see [2015] EWHC 539 (Admin); [2015] PLSCS 81. He rejected the first respondent’s other grounds of challenge.
The appellant appealed against the deputy judge’s conclusions on section 66 of the Listed Buildings Act, contending that he had applied too strict a requirement in relation to reasons for a decision involving section 66(1).
Held: The appeal was allowed.
The deputy judge had erred so far as he had considered that the onus was on the decision-maker positively to demonstrate by the reasons given that considerable weight had been given to the desirability of preserving the setting of relevant listed buildings. There were no grounds for applying an approach to the reasons required to be given in a case involving application of section 66(1) of the Listed Buildings Act which was at variance with, and more demanding than, the general position with regard to reasons. The general position was that it was for the claimant to satisfy the court that the shortcomings in the stated reasons were such as to raise a substantial doubt as to whether the decision was based on relevant grounds and free from any flaw in the decision-making process which would otherwise render the decision open to challenge: Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 and South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 applied; East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137; [2015] 1 WLR 45; [2014] 2 EGLR 85; [2014] EGILR 23 considered.
It was not helpful to look at the reasons given for decisions in other cases involving section 66 of the Listed Buildings Act and to compare them with those given in the instant case. The relevant principles in relation to the giving of reasons were well-established and very well known, and it should be sufficient for a judge to be reminded of them and taken to the reasons in the case before him or her to assess them in light of those principles, without any need for exegetical comparison with reasons given in relation to other planning decisions. Reasons for planning decisions had to be read as a whole in their proper context, and there would inevitably be differences of context, expression and nuance between cases which might be highly relevant. For example, where the reasons for a decision contained positive indications that the decision-maker had failed to comply with the duty under section 66(1) of the Listed Buildings Act, such indications would have to be dispelled by a countervailing positive reference to the relevant duty in the reasons themselves in order to avoid the conclusion that the decision-maker had erred as a matter of substance in the test being applied. That did not mean that such a positive reference was always required in other cases.
In the instant case, the reasoning of the inspector did not give rise to any substantial doubt as to whether he erred in law. On the contrary, his express references to the relevant provisions of planning policies and the NPPF were strong indications that he in fact had the relevant legal duty according to section 66(1) of the Listed Buildings Act in mind and complied with it. Policy EV12 of the local plan reflected the section 66(1) duty and para 134 of the NPPF was part of a series of paragraphs which laid down an approach corresponding with the duty in section 66(1). Generally, a decision-maker who worked through those paragraphs in accordance with their terms would have complied with the section 66(1) duty. Where an expert planning inspector referred to a paragraph within that grouping of provisions, then, in the absence of some positive contrary indication in other parts of the text of his reasons, the appropriate inference was that he had properly taken into account all those provisions, not that he has forgotten about all the other paragraphs apart from the specific one he had mentioned.
Overall, the inspector had not erred in his approach and was lawfully entitled to assess that the harm to the setting of the listed buildings which he had identified and discussed, when given the weight properly due to it under section 66(1) of the Listed Buildings Act, was nonetheless outweighed by the environmental benefits of the turbine.
Alistair Mills (instructed by Wilkin Chapman LLP, of Lincoln) appeared for the appellant; Juan Lopez (instructed by direct access) appeared for the first respondent; the second and third respondents did not appear and were not represented.
Sally Dobson, barrister
(1) The inspector had plainly had the presumption created by section 38(6) of the 2004 Act. Having referred specifically to that provision, he had recognised that the proposed development was not in accordance with the development plan. Nonetheless he considered that the environmental benefits of renewable energy development indicated that the determination of the appeal should be made otherwise than in accordance with that plan. That was what section 38(6) required him to conclude before granting planning permission. There was no requirement for the inspector to state anything about where the balance was to be struck before anything was put in the scales. There was no requirement that a decision-maker had to start any statement of his reasons with section 38(6). How any reasons provided for a decision were organised and expressed was a matter for the decision-maker: City of Edinburgh v Secretary of State for Scotland [1997] 3 PLR 71 and South Northamptonshire Council v Secretary of State for Communities and Local Government [2013] EWHC 11 (Admin); [2013] PLSCS 12 considered.
(2) In the light of the decision of the Court of Appeal in East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137; [2014] EGILR 23 that a finding of harm to the setting of a listed building was a consideration to which the decision maker had to give considerable importance and weight, the court was bound to find that 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 development. Accordingly, given the reversal of the normal burden of proof inherent in the requirement to provide such a demonstration, it followed that the claimant had suffered substantial prejudice.
(3) The inspector was under no obligation to include in his reasons a description of the particular value of each relevant listed building whose setting would be affected by the proposed development and a description of the contribution which its setting made to each. The inspector had expressed his conclusion on the extent of the harm to the settings of listed buildings that would be adversely affected as well as his conclusion on the extent of the cumulative harm. The claimant had not shown that she had suffered any substantial prejudice for the manner in which the inspector had dealt with the issue of the effect of the development on heritage assets.
(4) The argument that the claimant had been substantially prejudiced by the inspector’s failure to give reasons for his decision added nothing material to the other grounds for challenging that decision.
Per curiam: The court had reached its conclusion in the light of East Northamptonshire with reluctance since it was clear why the inspector had decided to grant planning permission, the basic purpose of the requirement to give reasons had been satisfied and it had been open to the inspector to afford particular weight to the public benefit of promoting renewable energy as part of the overall planning balance.
Juan Lupez (instructed by direct access) appeared for the claimant; Charles Banner (instructed by Wilkin Chapman LLP, of Lincoln) appeared for the second defendant; the first and third defendants did not appear and were not represented.
Click here to read the transcript: Mordue v Secretary of State for Communities and Local Government
