Town and country planning – Listed building – Harm – Grant of planning permission for poultry broiler units on agricultural land – Development site close to listed former railway station currently used as agricultural dwelling – Whether respondent local planning authority complying with duty under section 66(1) of Planning (Listed Buildings and Conservation Areas) Act 1990 to have special regard to desirability of preserving setting of listed building – Whether failing to take into account adverse effect caused by odour – Appeal dismissed
In December 2014, the respondent local planning authority granted planning permission for the erection of four poultry broiler units and associated infrastructure on agricultural land in Mansel Lacy, Herefordshire. The proposed development was to consist of four large sheds, each approximately 95m long, 25m wide and 6m high, each with three adjacent feed silos. The development site lay about 50m away from a disused railway station on the same site, which dated from about 1863 and was a Grade II listed building. The station building was currently in use as an agricultural dwelling. The appellant lived nearby and also operated a holiday letting business. He objected to the grant of planning permission on grounds that included the noise and smell that would be occasioned by the operation of the broiler units and the spreading of manure on open fields.
In granting planning permission, the respondents’ planning committee considered two reports from their planning officer, which summarised advice given by internal consultees, including a landscape consultant and a senior buildings conservation officer, and advised that, with proposed mitigation measures, the proposals complied with relevant planning policies in the local development plan and section 12 of the NPPF. The planning committee had also conducted a site visit. The issue of odour was raised and the respondents’ environmental health officer indicated that noise and odour levels would be acceptable. The local ward member also said that odour would rarely be detectable because of the prevailing wind.
The appellant brought proceedings to challenge the grant of planning permission. He contended that the respondents had failed to comply with their duty, under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 to have special regard to the desirability of preserving the setting of the listed railway station. In particular, he argued that the respondents had failed to consider non-visual harm to the setting of the railway station, setting, in particular from noise and smell.
The appellant’s claim was dismissed in the court below: see [2015] EWHC 2688 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) When applying section 66(1), the desirability of preserving a listed building or its setting had to be given considerable importance and weight, which context the concept of “preserving” meant “doing no harm”: The Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303 and South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141 applied. Although the most obvious way in which the setting of a listed building might be harmed was by encroachment or visual intrusion, in principle harm could also be caused by noise or smell.
(2) In the instant case, the clear thrust of the reports to the planning committee, and the views of the specialist officers that underlay and were summarised in those reports, was that if the mitigation measures were put in place there would be no adverse effect on the setting of the listed building. Where proposed development would affect a listed building or its settings in different ways, some positive and some negative, the decision-maker could legitimately conclude that although each of the effects had an impact, taken together there was no overall adverse effect on the listed building or its setting. That was the conclusion in this case. The finding that the proposals would comply with the relevant development plan policies on listed buildings necessarily entailed the proposition that there was no adverse effect on the setting of a listed building and that either section 66(1) was not engaged, or, if it was engaged, that the policy itself was sufficient compliance. Likewise, the explicit reference to section 12 of the NPPF, in the absence of contrary evidence, pointed to the conclusion that any duty under section 66(1) was complied with.
(3) The respondents had not failed to consider the effect of odour in the context of their statutory duty under section 66(1). The respondents’ landscape consultant had considered the potential effects of noise and smell, and the mitigation measures that she proposed were intended to deal with all aspects of “amenity”. Particularly telling was the observation of the environmental health officer that the noise and odour levels would be acceptable, supplemented by the remarks of the ward councillor that the odour would rarely be detectable. As a matter both of law and planning policy, harm was to be measured against both the scale of the harm and the significance of the heritage asset. Although the statutory duty required special regard to be paid to the desirability of not harming the setting of a listed building, that could not mean that any harm, however minor, would necessarily require planning permission to be refused. It was for the decision-maker to assess the nature and degree of harm caused, and in the case of harm to setting rather than directly to a listed building itself, the degree to which the impact on the setting affected the reasons why it was listed. In the instant case, while the listed building was originally designed as a railway station, the most significant impact on its setting was the closure of the railway line. It was now in use as an agricultural dwelling forming part of an agricultural unit. The specialist officers, and the planning officer in overall charge of the application, had all concluded that, as things now stood, there would be no adverse effects on the station or its setting.
James Burton (instructed by Kidwells Law Solicitors Ltd, of Hereford) appeared for the appellant; Matthew Reed (instructed by the legal department of Herefordshire Council) appeared for the respondents.
Sally Dobson, barrister
Click here to read transcript: Palmer v Herefordshire Council and another
