In Jones v Mordue and another [2015] EWCA Civ 1243; [2015] PLSCS 346, the Court of Appeal has confirmed the standard of reasons expected where planning permission is granted that will adversely affect heritage assets.
Permission was granted on appeal in July 2014 for a single wind turbine that would affect the settings of distant listed buildings to varying degrees. Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires decisions on development affecting a listed building or its setting to be taken with “special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses”. That meant not merely careful consideration for the purpose of deciding whether there would be some harm, but giving any harm “considerable importance and weight” when balancing the advantages of the proposed development against any such harm (applying East Northamptonshire District Council and others v Secretary of State for Communities and Local Government and another [2014] EWCA Civ 137; [2014] 2 EGLR 85).
The National Planning Policy Framework (“NPPF”) states (paragraphs 131 to 134) that decision-makers should give “great weight” to conserving designated assets, refusing permission where there is “substantial harm” unless specified exceptions apply (including that the public benefits are sufficient to outweigh the harm). The policy requires decision-makers to have “wholly exceptional” justification where Grade I and II* assets would be substantially harmed (“exceptional” in relation to Grade I). Where harm is less than substantial, a balancing exercise is required (but without the exceptional/ wholly exceptional thresholds).
The inspector balanced “less than substantial” harm to the setting of a Grade II* listed church against the general benefits of renewable energy development. He referred to paragraph 134 of the NPPF, relating to the balancing exercise, but did not mention the section 66(1) duty (or the other relevant NPPF paragraphs). The decision was challenged under Section 288 of the Town and Country Planning Act 1990 on behalf of local objectors on various grounds, including failure to positively demonstrate in the reasons for the decision that the section 66(1) duty been referred to and applied.
In allowing the challenge on this ground in the High Court, Richards J held that he was bound by Sullivan LJ’s judgment in East Northamptonshire to find that decision-makers must positively demonstrate in their reasons that considerable weight has been given to the section 66 duty. He did so reluctantly, given the onus on challengers to prove substantial prejudice by deficient reasoning (Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 W.L.R. 153). He had already found that there was no evidence that the inspector had in fact failed to apply properly the section 66(1) duty. The challenge to the inspector’s decision was therefore dismissed in relation to the substantive points, but upheld in relation to the reasons given.
The Court of Appeal rejected this approach as inverting the standard position on the duty to give reasons and leading to a presumption that section 66(1) decisions are flawed unless the court is satisfied that silence on the duty in the reasons could not conceal a flaw in the decision-making process. Sullivan LJ had himself given permission to appeal to the Court of Appeal on the basis that it was “strongly arguable” that this interpretation of his judgment was wrong or, if it was right, per incuriam given the House of Lords authority in Number 1 Poultry Ltd.
The Court of Appeal’s judgment raises five important points for practitioners:
- Where there is an exercise of discretion, including the weighing of harm, it is for the applicant to satisfy the court that the lacuna in the stated reasons is such as to raise a substantial doubt as to whether the decision was unlawful. The mere failure to state what weight is being given to a consideration when a material planning policy specifies what it should be does not mean that the reasons provided are inadequate.
- When considering the adequacy of reasons, the court will distinguish between decisions containing positive indications that the decision-maker had failed to comply with the section 66(1) duty and those where there is no sign of problem. The onus was upon a claimant to indicate that there is a positive indication that the decision-maker has not given the required considerable importance and weight to the importance of conserving a heritage asset. Only if there is such a positive indication should a decision-maker make a countervailing positive reference to the section 66(1) duty in the reasons themselves.
- Express references by the inspector to plan policy aligned with section 66 and paragraph 134 of the NPPF were strong indications that he had the section 66 duty in mind. There could not be said to be substantial doubt, applying Number 1 Poultry.
- Reference to one part of NPPF heritage tests is generally enough to raise a presumption that the whole section has been considered.
- The approach in Paragraph 134 of the NPPF (and the section which it forms part of) corresponds with the section 66(1) duty. A decision-maker who works through those paragraphs properly will generally have complied with section 66(1).
Operating by reference only to the NPPF policies requires great care. Working through paragraphs 131-134 of the NPPF and concluding that there is less than substantial harm still requires the decision taker to apply the “strong presumption against the grant of planning permission” identified by the House of Lords in South Lakeland District Council v Secretary of State for the Environment and Another [1992] 2 AC 141. This was confirmed in East Northamptonshire as the practical consequence of giving harm “considerable importance and weight”.
It is not immediately obvious from the NPPF itself though. While decision takers are not required to give the same weight to substantial and less than substantial harm, there is in both cases a strong legal presumption against consent (see R (on the application of Forge Field Society and others) v Sevenoaks District Council [2014] EWHC 1922 (Admin); [2014] PLSCS 182 per Lindblom J at 47). Accepting the flexibility offered by the judgment in Mordue therefore requires three possible thresholds for permitting harm to designated heritage assets to be borne in mind depending on the nature of the harm found – wholly exceptional, exceptional and, where harm is less than substantial, generally unacceptable.
Roy Pinnock is a partner in the planning and public law team at Dentons
