Town and country planning – Planning permission – Wind turbine – Local planning authority granting planning permission for wind turbine – Claimant applying for judicial review – Whether respondents wrongly failing to consult Welsh Ministers – Whether respondents erroneously failing to have special regard to desirability of preserving setting of listed building as required under section 66(1) of Planning (Listed Buildings and Conservation Areas) Act 1990 – Appeal allowed
The interested party applied to the respondent local planning authority for planning permission for the erection of a wind turbine on his farm at Upper Pengarth, Llaneilo Graban in the Radnor Hills, about 10km to the south-east of Builth Wells. Permission was granted and the wind turbine was erected on the side of a hill on a site of 0.2 hectares. It was 30.1m high to the hub and 41.8m to the blade tip. On the other side of the hill, about 1.5km from the wind turbine, was Llanbedr Church, a grade II listed building. There were also several scheduled monuments in surrounding area.
The appellant, a local resident who had objected to the proposal, applied for judicial review of the decision to grant permission. He contended that the respondents had erred by failing to consult the Welsh Ministers upon the likely effects of the development in the settings of the two closest scheduled monuments; and by failing to consider the likely effects on the setting of the church. The Planning Court dismissed the application: see [2016] EWHC 480 (Admin).
On the appellant’s appeal to the Court of Appeal, issues arose: (i) whether respondents had failed to comply with the requirements under the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 to consult the Welsh Ministers on applications for planning permission for “[development] likely to affect the site of a scheduled monument”; and (ii) whether the respondents had erred in failing to perform the 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 a listed building.
Held: The appeal was allowed.
(1) The judge’s construction of the relevant provisions of the 2012 order was correct. On a straightforward reading of the words of paragraph (k) in the table in Schedule 4, leaving aside their statutory context, the concept of development “likely to affect the site of a scheduled monument” would not naturally be understood as meaning development “likely to affect the site or setting of a scheduled monument. In the ordinary use of language, the site and its setting were not the same thing. The word “site” was apt to describe the area of land on which the monument was physically located; the physical entity comprised in the monument and the ground on which it stood. It would not normally equate to the “setting” of the monument, which encompassed the surroundings within which the monument might be experienced by the eye. The relevant statutory context only reinforced the literal interpretation. The concept of a “scheduled monument” in paragraph (k) was the same as in section 1(11) of the Ancient Monuments and Archaeological Areas Act 1979. And the provisions for consultation in article 14 and Schedule 4 were aligned with the substantive provisions for conservation in the 1979 Act. That remained so after the amendments which removed paragraph (k) in the table in Schedule 4 and replaced it with the new paragraph (I).
(2) The circumstances in which the duty under section 66(1) of the 1990 Act had to be performed where the setting of a listed building was concerned would vary considerably, taking account of a number of factors, including the nature, scale and siting of the development proposed, its proximity and likely visual relationship to the listed building, the architectural and historic characteristics of the listed building itself, local topography and the presence of other features (both natural and man-made) in the surrounding landscape or townscape. Ultimately, the question whether the section 66(1) duty was engaged would always depend on the particular facts and circumstances of the case in hand. The fact that the possible effect of the proposed development on the setting of a listed building had not been identified as an issue in response to consultations, or in representations made by third parties, did not of itself relieve a local planning authority of the duty under section 66: R (on the application of Friends of Hethel Ltd) v South Norfolk District Council [2010] EWCA Civ 894; [2010] PLSCS 219, East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] 2 EGLR 85; [2014] EGILR 23; Howell v Secretary of State for Communities and Local Government [2015] EWCA Civ 1189; [2015] PLSCS 326, Mordue v Secretary of State for Communities and Local Government [2015] EWCA Civ 1243; [2015] PLSCS 346 and R (on the application of Higham) v Cornwall Council [2015] EWHC 2191 (Admin) considered.
In the present case, in view of the assessment in the Planning Statement that the development would have a slight effect on listed structures and monuments, the planning officer found it necessary to deal with the possible effects of the proposed development on the settings of the two scheduled monuments and advised that there would not be an unacceptable adverse effect. However, there was no parallel consideration of the possible effect on the grade II listed church, having regard to the statutory duty in section 66(1). The lack of relevant advice from the officer and of any relevant discussion at the planning committee meetings, in the circumstances of this case, amounted to an error of law. The section 66(1) duty was clearly engaged. Given the potential significance of even a less than substantial effect on the setting of a listed building, the possible impact of the proposed wind turbine on the setting of the listed church was sufficiently put in issue by the Planning Statement to call for explicit treatment in the officer’s report. It could not simply be inferred. That was not to require more than might reasonably be expected of a local planning authority, in the present circumstances, if it was to comply with the duty in section 66(1). Accordingly, the respondents’ decision was flawed and the planning permission had to be quashed so that the respondents could take the decision again, properly directing themselves on the duty under section 66(1).
Richard Harwood QC (instructed by Harrison Grant Solicitors) appeared for the appellant; Clare Parry (instructed by Powys County Council Legal Services) appeared for the respondents; James Corbet Burcher (instructed by Margraves Solicitors, of Llandrindod Wells) appeared for the interested party.
Click here to read transcript: R (on the application of Williams) v Powys County Council
