Ref. (1) East Northamptonshire District Council (2) English Heritage (3) National Trust v (1) Secretary of State for Communities & Local Government (2) Barnwell Manor Wind Energy Ltd [2013] EWHC 473 (Admin)
The Court of Appeal was called upon to preside over a case in which English Heritage and the National Trust faced off against Mr Pickles’ Department for Communities and Local Government over a proposed wind farm in Sudborough, Northamptonshire, which would significantly impact a number of Grade I listed sites designated as of exceptional interest and potentially international importance.
The windfarm application, made by Barnwell Manor Wind Energy Ltd, was at first refused by East Northamptonshire District Council on the grounds that unacceptable harm would be brought about by the proposed development to the local setting and that the proposals conflicted with planning policy and guidance, specifically PPS5 (Planning for the Historic Environment) and PPS22 (Renewable Energy).
They stated:
“It is considered that the proposed development site is not suited to accommodating wind energy infrastructure, due to the significant immediate visual and landscape impacts at location of public access and recreation, through the introduction of ‘dominant’ additional features in the skyline and viewpoints. This is especially pertinent given the presence of cultural heritage features and the relative absence of any other existing modern structuresâ€
“It is considered that the proposed wind turbines will result in an unacceptable harm to the setting of Lyveden New Bield (Scheduled Monument, Grade 1 Listed Building, Grade 1 Registered Park and Garden) and to St Andrews Church Brigstock (Grade 1 Listed Building), and an insufficient assessment of the effects of the development on the setting of Drayton House (Grade 1 Listed Building) and its Grade 1 Registered Park and Garden. The proposal is therefore considered to conflict with the aims of historic environment planning policy and guidance expressed in PPS5, PPS22â€
Barnwell appealed and the inspector, operating on behalf of the Secretary of State for Communities and Local Government (Mr Pickles), concluded instead that, although the proposal would harm the setting of designated heritage assets, the harm would in all cases be less than substantial and would be reduced by the temporary nature (25 years) of the planning permission and its reversibility.Â
Furthermore, the inspector concluded that the significant benefits of the proposed development – amounting to a 10MW addition towards the 2020 targets – outweighed the harm it would cause to the setting of the heritage assets and the wider landscape.
A joint action was brought to the Court of Appeal by the claimants, listed in the case reference above, under section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”) for an order to quash the decision made by the inspector and deny the development.
Specifically, the Claimants disputed whether the inspector had (i) had special regard to the desirability of preserving the settings of listed buildings as required by section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990; (ii) correctly interpreted and applied planning policy on the effect of development on the setting of heritage assets and (iii) given adequate reasons for his decision.
Section 66(1) P(LBCA)A 1990 reads:
“In considering whether to grant planning permission for development which affects a listed building or its setting, the Local Planning Authority, or as the case may be, the Secretary of State, shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.”
A full breakdown of the judgement laid out by Mrs Justice Lang is available here.
On point (i), Lang concluded that at no stage did the Inspector accord the “special weight†or considerable importance to the “desirability of preserving the settingâ€. In fact, he treated the “harm” to the setting and the wider benefit of the wind farm proposal as if those two factors were of equal importance. In fact, he further downplayed the desirability of preserving the setting and in doing so applied the policy without giving effect to the section 66(1) duty, which applies to all listed buildings, whether the “harm” has been assessed as substantial or less than substantial.
On the first of the Claimants objections then, she concluded that the Inspector had erred in law.
On point (ii) she stated:
“In my judgment, the Inspector failed properly to interpret and apply the relevant planning policies on the effect of development on the setting of heritage assets. I accept the Claimants’ submission that this error would probably have affected the balancing exercise which he was required to carry out. By failing properly to assess the contribution made by setting to the significance of the heritage assets, he may have failed properly to assess the overall magnitude of harm. On the balance of probabilities, it is likely therefore that the balancing exercise was flawed.â€
On point (iii) she went on to conclude that the Inspector had left her in substantial doubt as to the Inspector’s reasoning. She found that the failure to give adequate reasons contravenes rule 19(1) of the Rules laid out in Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000. Doing so prejudiced the Claimants as they were not able to ascertain the Inspector’s conclusions in relation to an important controversial issue, nor whether he had made an error of law.
The result of the Inspector’s failure on all three counts was an order by Mrs Justice Lang to quash the decision and for the appeal to be reconsidered in the light of her judgement.
The windfarm at Sudborough will be delayed further, perhaps indefinitely, and with windfarms becoming ever more prolific (despite suffering a fall in accepted applications) this may not be the only time the Court of Appeal must preside over the difficult balancing act of renewable energy and historic assets.
SRJ / LCBÂ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 12/06/2013
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