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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Pugh v Secretary of State for Communities and Local Government & Ors  EWHC 3 (Admin) (05 January 2015)
Cite as:  EWHC 3 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| RICHARD HACKETT PUGH
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Richard Honey (instructed by Treasury Solicitor) for the Defendant
The Interested Parties did not appear and were not represented
Hearing dates: 9th December 2014
Crown Copyright ©
MR JUSTICE GILBART:
i) the application for permission, the refusal, the cases before the Inspector and the Decision Letter
ii) the Decision Letter
iii) The nature of the challenge
iv) Legal context
v) Policy context
vi) Mr Harwood's submissions for the Claimant
vii) Mr Honey's submissions for the Defendant
viii) Discussion and Conclusions.
The planning application and refusal, and the cases before the Inspector
"1 The proposed turbine would by reason of its scale, elevation and siting project into the skyline in an important designated landscape in a prominent location between the two Scheduled Ancient Monuments of Bury Down Camp and the Giant's Hedge. In so doing it would introduce a modern vertical structure which would adversely impact upon the setting of both monuments individually and also their relationship to each other.
2 It is considered therefore what the proposal would have a detrimental impact upon the historic landscape character and would result in substantial harm to the setting of the Scheduled Ancient Monuments. The contribution which the wind turbine would make towards the provision of renewable energy has been given significant weight however it is considered that the harm described would in this case outweigh the benefits of the scheme. The proposal would therefore be contrary to Paragraph 132 of the National Planning Policy Framework, and Caradon Local Plan 1999 saved policies REN1 and REN2."
"4.23 Great weight is to be assigned to an asset's conservation (Para 132) and significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting noting substantial harm to scheduled monuments should be wholly exceptional.
4.24 Paragraph 133 requires that, where such assets are to be substantially harmed by a development, permission should be refused unless the harm is "necessary to achieve substantial public benefits that outweigh that harm or loss ". This weighting exercise is also to be undertaken where the harm is less than substantial (Para 134) .".
" Renewable energy is specifically covered by policies REN 1 and REN 2 of the (Local) Plan. These policies set out to maximise the environmental and economic benefits while minimising local impacts. .These policies highlight the need for a careful balance to be struck between the provision of renewable energy and the effects upon the special features or qualities which justified the (SAM) designation."
|SAM/LB||Original assessment||Addendum||Further Assessment produced in appeal material|
1 km distant
Overall impact "Minor/negligible"
Low magnitude change
"level considerably less than substantial"
1.0 - 3.1 km distant
Low magnitude change
|Very limited degree of harm
"falls considerably short of substantial"
3.6 km distant
Low magnitude change
|Low magnitude change
|Pelyne Farmhouse and outbuilding
1.4 km distant
|Low magnitude change
The Decision Letter
2 Whether the benefits of the scheme, including the production of electricity from a renewable source, outweighs any harmful impacts, having particular regard to the effects upon the character and appearance of the area, as well as the effects upon the sitting of the Scheduled Monuments (SM) know as Bury Down Camp and Giant's Hedge."
3 The development plan includes 'saved' policies from the Caradon Local Plan 1999 (LP). Policy REN1 is permissive of the proposal for the generation of energy from non fossil fuel sources subject to specified criteria, including no unacceptable impact on the character and appearance on the landscape. Under policy REN2, wind turbines are only permitted if they would not cause, amongst other things, unacceptable damage to amenity and landscape, as well as no unacceptable effects on the amenities of neighbouring properties. My attention has also been drawn to policies CL2 (farm diversification) and CL19 (setting of Scheduled Monuments). These policies are broadly consistent with National Planning Policy Framework ("the Framework"), although policy CL19 lacks the 'cost benefit analysis' of weighing any harm with public benefits.
7 In determining planning applications for wind energy development, footnote 17 of (NPPF) states the planning authority should follow the approach in the National Policy Statement for Renewable Energy Infrastructure (EN-3), which should be read with the relevant sections of the Overarching National Policy Statement for Energy (EN-1). Among other things, EN-1 states that the Government is committed to increasing dramatically the amount of renewable generation capacity and EN-3 states that onshore wind farms will continue to play an important role in meeting renewable energy targets. In addition, the (NPPF) amongst other things, seeks to increase the use and supply of renewable and low carbon energy.
8 I have also taken into account the Government's Planning Practice Guidance (PPG) for renewable and low carbon energy, as well as the Ministerial Statements of 6 June 3013. In addition I have had regard to the separate Ministerial Statement of 23 March 2011.
9 I have taken into account the provisions of various Acts, Directives, Strategies and Statements relating to renewable energy, including the 2007 energy white paper. Amongst other things, these set out and identify progress towards achieving a legally binding target of reducing UK emissions by at least 34% by 2020 and 80% by 2050, as well as achieving the UK's obligation of 15% of energy consumption from renewable energy sources by 2020. They reflect the Government's commitment to renewable energy. These are important matters to weigh in the planning balance. However, I also note the advice in the PPG that the need for renewable energy does not automatically override environmental protection or the planning concerns of the local community.
10 The proposal would be used to offset the electricity costs on the appellant's 143 ha (354 acre) farm (predominantly arable). It would further assist in diversifying his farm enterprise (which includes holiday lets) and would increase the financial security of this existing rural business.
11 On behalf of the appellant, it has been calculated that the proposed wind turbine would generate 1,239,500 kWh per annum (based on a capacity factor of 28%) or the equivalent electricity that is consumed by approximately 276 average UK households. It has also been calculated that this would save approximately 550 tonnes CO²/Year. The development would contribute to national renewable energy targets and aspirations for reducing greenhouse gas emissions and, in combination with other renewable low carbon energy schemes would assist in tackling climate change. (The NPPF) states that even small-scale renewable or low carbon energy projects provide a valuable contribution to cutting greenhouse gas emissions. In addition the scheme would add to the security of supply.
12 The above benefits can be given considerable weight in the overall planning balance and strongly support the argument for granting permission "
15 "The ALS identifies the land in this part of LCA 22 as having a moderate sensitivity to wind energy development. The landscape strategy is for occasional small or medium clusters with turbines, single turbines that may be up to and including sizing at the lower end of the 'large' category (100-150 metres high). Wind turbines should also be clearly separated so that collectively they do not have a defining influence on the overall experience of the landscape.
16. The Siting Guidance LCA 22 includes a requirement to ensure wind energy development does not dominate or prevent the understanding or appreciation of historic landmarks on the skyline including Iron Age hill forts such as Bury Down ..The siting guidance for LCA 23 includes assuring that wind turbines do not prevent the understanding and appreciation of historic landmarks such as the Giant's Hedge.
19. The above limited harm to the character of the area weighs against an approval. However with the exception of the loss of hedgerow, this would be reversible. Moreover the character of the countryside is likely to be eroded unless climate change is tackled.
20. The proposed wind turbine would occupy an elevated position on the landscape and would be visible over a wide area. It would be seen from many properties and numerous sections of public right of way and roads that bisect the landscape. From many properties and much of the public domain the turbine would be set back a considerable distance and topography and intervening vegetation and/or buildings would filter view. Whilst the development would be conspicuous in many views it would form part of a wide rural scene and would not have an overwhelming presence in the landscape.
21. However, from within about 1km of the site the turbine would appear as a very prominent addition to this area of the countryside and the movement of the blades would 'draw the eyes'. It would contrast awkwardly with the height and form of most existing landscape elements. Views from the roads would be transitory and, in all likelihood from fast moving vehicles. However when seen by 'high sensitivity receptors' using the public rights of way to the east of Bury Down hillfort, the public footpath to the south of Tregrove and the footpath to the south east of the site, the proposed turbine would attract from the very pleasant and largely unspoilt rural scene. From these parts of the public domain the turbine would intrude into the skyline and would be much taller than the existing pylons and the telecommunications mast. This harm to the appearance of the area also weighs against an approval.
22. The developments would not however intrude into or harm any important views to or from the AGLV or the Cornwall Area Outstanding Natural Beauty. It would also be set well apart from other wind energy developments and there would be no pronounced simultaneous or sequential cumulative impacts. The scheme would accord with the landscape strategy of the ALS.
23. The harm that I have identified to the appearance to the area would be for a limited period and some adverse visual impact is an almost inevitable consequence of accommodating wind turbines within the countryside. I note that the council's reasons for refusal is limited to the impact upon the setting of the SMs and historic character rather than the general character and appearance of the area. No conflict has been identified with LP policy CL2.
Setting of Scheduled Monuments
24. In assessing the impact scheme upon the above noted SMs I have had regard, amongst other things, to advice published by (EH) in respect of wind energy development and the setting of heritage assets. This guidance does not preclude wind turbines within the setting of SMs.
25. Bury Hill Camp is a small multivallate hill fort (and potential Neolithic enclosure). The significance of this designated heritage asset is derived primarily from its archaeological value. However, the surrounding landscape, including the appeal site, forms part of the setting of this SM. The lower lying, open, agricultural qualities of the surrounding countryside contribute to an appreciation of the historical value of this hill fort, enabling it to be discerned as an important and prominent feature within this rural landscape. The extensive views to/from this capital SM maintain its commanding presence and exposed location. The appeal site forms part of a much larger area of countryside which makes a positive contribution to the significance of this important heritage asset. Whilst the nearby telecommunications mast and row of pylons approximately 750 metres to the south detract from its setting, this does not justify permitting further harmful erosion to the significance of Bury Hill Camp.
26. The significance of the Giant's Hedge SM (probably early medieval) is derived primarily form the archaeological value of the remaining sections of this extensive linier monument. However the surrounding undulating agricultural landscape of medieval farmland divided by Cornish hedgerow (this includes the appeal site) forms part of the setting of this SM and makes positive contributions to its historical significance as territorial boundary to defend the areas between the Rivers Looe and Fowey. Unlike Bury Hill Camp, there is little to distinguish this monument and the landscape. However it is of no lesser importance than the hill fort. Whilst there are views to/from the Giant's Hedge, including incidental views towards Bury Hill Camp, it is a largely unassuming feature. (In all likelihood, only the 'trained eye' or very keen observer would detect the significance of Giant's Hedge.)
27. The proposed wind turbine would be prominent in views to/from the above SMs. The tips of the turbine blades would exceed the height of Bury Down Camp and the movement of the blades would be a distracting element within these views. This tall, modern addition to the area would detract from the rural setting of the capital SMs. It would diminish the commanding presence of the Down Camp and, to a limited extent, erode an appreciation of its historical significance within the landscape. To a lesser extent, the height of the turbine and its blades would also detract from an understanding of the boundary significance of the Giant's Hedge and its historical role from the landscape. This would be contrary to an aspect of the siting guidance within the ALS. I note the concerns of EH regarding the impact to the scheme and I am mindful that these assets are of considerable importance. The scheme would be at odds with LP policy CL19 and DLP24.
28. However the settings of these SMs have changed over time, including the addition of buildings, poles/masts and road traffic (noise and movements). I concur with the appellant's detailed 'Cultural Heritage Setting Assessment', but the siting of the turbine, its slender form and off white colour would ensure that it did not interrupt an appreciation of key lines of sight of Bury Down Camp or the Giant's Hedge. The proposal would not dominate or change the general character of the settings of these SMs which would remain overwhelmingly agricultural.
29. The hill fort would continue to be seen as having a prominent and exposed position within the landscape and those who were alert to the presence of the Giant's Hedge would still be able to appreciate its significance. A degree of separation from other wind turbines would also ensure that there was no cumulative harm to the setting of these SMs or to the historic character of the landscape.
30. The harm that I have identified with the setting of these heritage assets as would, in the context of the (NPPF) is less than substantial. It would also be limited to a 25 year period. Nevertheless, this weighs against an approval.
33. I also note the concerns of some interested parties regarding the effect of the setting of some listed buildings. This includes the grade I listed St Manarch and St Dunstans church at Lanreath, the Grade II* listed Court Barton Farm and the Grade II listed Trevawden Farm. During my visit I noted the relationship between some of these building and the appeal site. Whilst it may be possible to see parts of the development in some views to/from these listed buildings there is no cogent evidence to demonstrate that the appeal site forms part of the setting of any listed building or that the scheme would harm the significance of any listed building or the obelisk at Boconnoc. The likely impact upon the setting of listed buildings is assessed as part of the appellant's Environmental Report. I see no reason to disagree with that assessment and note that no objections were raised by either the Council or EH in respect of such matters.
34. - 42 ..
Planning Balance/Overall Conclusion
46. When all the above is weighed in the balance, the benefits of the scheme, including the public benefits to be derived from tackling climate change, out weigh the limited harm to the character and appearance of the area and the setting of the SMs. In this instance I find that the proposal would not have an unacceptable impact upon the character or appearance of the landscape the setting of heritage assets or amenities of neighbouring residents.
47. Whilst I found conflict with LP policy CL19 and DLP24 the scheme would accord with the provisions of LP policies REN1 and REN2 and DLP policy 15. It is not unusual for planning policies to pull in different directions and, when assessed in the round, the scheme would accord with the development plan as a whole. I have also noted above that there is much support for this type of development within various 'Other documents'. Moreover its contribution towards reducing CO² emissions and the 'in combination' effect with other renewable low carbon energy schemes in tackling climate change lead me to find that overall the proposals satisfy the environmental dimension to sustainable development as set out in the (NPPF).
48. I do not set aside likely the concerns of those who oppose the scheme and I recognise that my decision will disappoint some members of the local community. However, making a 'more popular' decision would not, in this instance, equate to the correct planning decision. Having considered all the evidence dispassionately and spent considerable time viewing the site and surroundings from the public domain and some neighbouring properties, I conclude that the appeal should succeed."
The nature of the challenge
i) The Inspector failed to take account of the harm which the Appellant's own consultant had said would be caused to the settings of two Listed Buildings (Trevawden and Pelyne Farm), and irrationally, or without giving reasons, found that there would be no harm. In consequence he had failed to apply the duty under section 66(1) of the Planning (Listed Building and Conservation Areas) Act 1990 ("PLBCA 1990");
ii) In failing to have regard to a material consideration, namely the harm which the Appellant's own consultant had said would be caused to the setting of the SAM at Bake Rings, he had failed to apply local development plan policies (REN 1, REN 2 and CL19) and national policy to this impact;
iii) He misinterpreted Policy REN 2 (or overlooked it or applied it irrationally) when he failed to treat adverse impact by a development on SAMs as being in breach of the policy;
iv) He failed to have regard to national policy in paragraph 132 of the National Planning Policy Framework (or alternatively misinterpreted it or misapplied it) by failing to identify a clear and convincing justification for the harm to the SAMs which would be affected by the development.
The Legal and Policy context
(a) Decision making
i) have regard to the statutory development plan (see section 70(1) TCPA 1990);
ii) have regard to material considerations (section 70(1) TCPA 1990);
iii) determine the proposal in accordance with the development plan unless material considerations indicate otherwise (section 38(6) Planning and Compulsory Purchase Act 2004 ("PCPA 2004"));
iv) apply national policy unless he gives reasons for not doing so- see Nolan LJ in Horsham District Council v Secretary of State for the Environment and Margram Plc  1 PLR 81 following Woolf J in E. C. Gransden & Co. Ltd. v. Secretary of State for the Environment  54 P & CR 86;
v) give proper, intelligible and adequate reasons which dealt with each of the substantial points raised by the parties (Save Britain's Heritage v. No. 1 Poultry  1 WLR 153 and South Buckinghamshire DC. v. Porter (No. 2)  1 WLR 1953);
vi) proceed on a proper understanding of the development plan: see Lord Reed in Tesco Stores Ltd v Dundee City Council  UKSC 13 at paragraphs 17- 23. A failure by a decision maker to interpret policy properly makes the decision open to challenge see City of Edinburgh Council v Secretary of State for Scotland  SC (HL 33,  1 WLR 1447 at 44 /1459 per Lord Clyde. Policy statements must be interpreted objectively in accordance with the language used, and always in its proper context. But as Tesco Stores Ltd v Dundee City Council makes plain, the application to the facts before it is a matter for the decision making authority;
vii) if it is shown that the decision maker had regard to an immaterial consideration, or failed to have regard to a material one, the decision will be quashed unless the Court is satisfied that the decision would necessarily have been the same: see Simplex GE (Holdings) Ltd v. Secretary of State for the Environment  57 P & CR 306.
(b) The NPPF and its interpretation
"The principles and policies set out in this section apply to the heritage-related consent regimes for which local planning authorities are responsible under the Planning (Listed Buildings and Conservation Areas) Act 1990, as well as to plan-making and decision-taking."
"Conserving and enhancing the historic environment
126. Local planning authorities should set out in their Local Plan a positive strategy for the conservation and enjoyment of the historic environment including heritage assets most at risk through neglect, decay or other threats. In doing so, they should recognise that heritage assets are an irreplaceable resource and conserve them in a manner appropriate to their significance. In developing this strategy, local planning authorities should take into account:
- the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation;
- the wider social, cultural, economic and environmental benefits that conservation of the historic environment can bring;
- the desirability of new development making a positive contribution to local character and distinctiveness; and
- opportunities to draw on the contribution made by the historic environment to the character of a place.
128. In determining applications, local planning authorities should require an applicant to describe the significance of any heritage assets affected, including any contribution made by their setting. The level of detail should be proportionate to the assets' importance and no more than is sufficient to understand the potential impact of the proposal on their significance. As a minimum the relevant historic environment record should have been consulted and the heritage assets assessed using appropriate expertise where necessary. Where a site on which development is proposed includes or has the potential to include heritage assets with archaeological interest, local planning authorities should require developers to submit an appropriate desk-based assessment and, where necessary, a field evaluation.
129. Local planning authorities should identify and assess the particular significance of any heritage asset that may be affected by a proposal (including by development affecting the setting of a heritage asset) taking account of the available evidence and any necessary expertise. They should take this assessment into account when considering the impact of a proposal on a heritage asset, to avoid or minimise conflict between the heritage asset's conservation and any aspect of the proposal.
131. In determining planning applications, local planning authorities should take account of:
- the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation;
- the positive contribution that conservation of heritage assets can make to sustainable communities including their economic vitality; and
- the desirability of new development making a positive contribution to local character and distinctiveness.
132. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset's conservation. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification. Substantial harm to or loss of a grade II listed building, park or garden should be exceptional. Substantial harm to or loss of designated heritage assets of the highest significance, notably scheduled monuments, protected wreck sites, battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites, should be wholly exceptional.
133. Where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, local planning authorities should refuse consent, unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss, or all of the following apply:
- the nature of the heritage asset prevents all reasonable uses of the site; and
- no viable use of the heritage asset itself can be found in the medium term
- through appropriate marketing that will enable its conservation; and
- conservation by grant-funding or some form of charitable or public
- ownership is demonstrably not possible; and
- the harm or loss is outweighed by the benefit of bringing the site back
- into use.
134. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use."
i) great weight must be attached to the asset's conservation. The more important the asset the greater the weight should be (paragraph 132);
ii) any harm or loss which would be caused by a development to the significance of a designated heritage asset requires convincing justification (paragraph 132);
iii) substantial harm which would be caused by a development to the significance of a Grade II listed building should be exceptional (paragraph 132);
iv) substantial harm which would be caused by a development to the significance of a SAM should be wholly exceptional (paragraph 132);
v) in the event of an assessment that substantial harm would be caused by a development to the significance of a designated heritage asset, the decision maker should apply the criteria in paragraph 133;
vi) in the event of an assessment that less than substantial harm would be caused to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use (paragraph 134).
"209. The National Planning Policy Framework aims to strengthen local decision making and reinforce the importance of up-to-date plans.
210. Planning law requires that applications for planning permission must be determined in accordance with the development plan unless material
considerations indicate otherwise.
211. For the purposes of decision-taking, the policies in the Local Plan should not be considered out-of-date simply because they were adopted prior to the publication of this Framework.
212. However, the policies contained in this Framework are material considerations which local planning authorities should take into account from the day of its publication. The Framework must also be taken into account in the preparation of plans.
213. Plans may, therefore, need to be revised to take into account the policies in this Framework. This should be progressed as quickly as possible, either through a partial review or by preparing a new plan.
214. For 12 months from the day of publication, decision-takers may continue to give full weight to relevant policies adopted since 2004 even if there is a limited degree of conflict with this Framework.
215. In other cases and following this 12-month period, due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the
policies in the Framework, the greater the weight that may be given)."
(c) Relevant Development Plan Policy
i) Policy CL 19 deals with Buildings of Archaeological Significance.
"High priority will be given to the protection, preservation and enhancement of nationally important scheduled monuments and other buildings of ..historic significance in the plan area through the following measures;
i) development proposals which would prejudice the preservation of nationally important archaeological remains, whether scheduled or not, and their settings, will not be allowed unless the development is of national importance and there is no alternative site;
ii) ENV 3 deal with Listed Buildings and Conservation Areas. The part relevant to this proposal reads:
"All proposals for works ( ) which would directly affect the fabric or setting of a listed building must have special regard to the desirability of preserving the building or its setting ."
iii) Policies REN 1 and REN 2 deal with Non-Fossil Fuel Sources and On-Shore Wind Energy respectively :
Planning proposals for the generation of energy from non-fossil fuel sources will be permitted subject to the following criteria:
(i) the proposals must not have an unacceptable impact on the character and appearance of the immediate and wider landscape, and of areas of natural, cultural, historical or architectural interest:
In AONBs, HC, SSSIs, NNRs, SAM (sic) and best and most versatile agricultural land, wind turbines and wind farms will only be permitted if the proposal would not have an unacceptable impact on the specific features or qualities which justified such designation
In other areas, wind turbines and wind farms will only be permitted if the proposal would not cause unacceptable damage to amenity, landscape, scientific, archaeological nature conservation or historic interests, and there is no adverse impact on land falling within the designations given in the above paragraph.
In all cases, proposals must comply with the criteria set out in Policy REN 1, and to the following:
(i) the development must not unacceptably detract from the visual amenity of landscapes that make an important contribution to the setting of towns or villages;
(ii) the development will not unacceptably affect the amenities of neighbouring properties .
Mr Harwood QC's submissions for the Claimant
i) The inspector had failed to address the harm which would be caused to the Listed Buildings at Trevawden and Pelyne Farm, which had been noted in the Addendum assessment. He was under a duty to address what had been said there. His reference at paragraph 33 to the Appellant's Environmental Report shows that he had not considered the Addendum assessment. His failure to refer to it and his failure to consider what was said about those Listed Buildings amounts to a failure to have regard to a material consideration and/or a lack of adequate reasoning. It also amounted to a failure under s 66 of PLBCA 1990;
ii) The reason why the Claimant had not hitherto raised the effect on Bake Rings SAM, Trevawden or Pelyne Farm is because the Addendum assessment was not available on the Council website.
i) in applying the tests in NPPF, although he accepted the Inspector's assessment that there would be less than substantial harm to the setting of the two SAMs at Bury Camp and Giant Hedges, one could not simply apply the test in paragraph 134 (the balance test) but had to attach greater weight because of their significance in the context of paragraph 132. He contended that the Inspector had failed to follow that approach. He cited a decision of HH Judge Waksman QC, sitting as a Judge of this Court, in the very recent unreported case of R (Hughes) v South Lakeland District Council  EWHC 3979 (Admin). There Judge Waksman said at paragraphs 49-53 (in a case about the effect on a Conservation Area)49. "It is common ground that the Site was located within a heritage asset being the local Conservation Area. To the extent that it is relevant here I set out in paragraph 78 below in the context of Ground 3, the nature and status of the NPPF.50. The Court of Appeal in E Northants DC v Secretary of State for Communities and Local Government  EWCA Civ 137 ("Barnwell") made clear that the duty imposed by s72 (1) meant that when deciding whether harm to a conservation area was outweighed by the advantages of a proposed development the decision-maker should give particular weight to the desirability of avoiding such harm. There is a "strong presumption" against the grant of permission in such cases. The exercise is still one of planning judgment but it must be informed by that need to give special weight to maintaining the conservation area. See paragraphs 22, 26 and 29 of Barnwell.51. This was then followed by Lindblom J in R (Forge Field)v Sevenoaks DC  EWHC 1895. See in particular, paragraphs 48-51.52. It is clear that the first part of paragraph 132 seeks to express the s72 (1) presumption. The remaining provisions then give guidance on how it may be applied in a case involving a heritage asset. So if there would be substantial harm to a listed building permission would have to be either exceptional or wholly exceptional. See the second part of paragraph 132. If there was to be substantial harm to a non-listed heritage asset, then consent should be refused unless that harm was necessary to achieve substantial public benefits or the particular matters set out in [a] to [d] apply. See paragraph 133. Finally if the harm is less than substantial it must be weighed against the public benefits including its optimum viable use. See paragraph 134.53. As is made clear in paragraph 45 of Forge Field, even if the harm would be less than substantial so that paragraph 133 did not apply but paragraph 134 did, the harm must still be given considerable importance and weight. That of course is doing no more than following the injunction laid down in s72 (1). The presumption therein needs to be "demonstrably applied" see paragraph 49 of Forge Field. Put another way, in a paragraph 134 case, the fact of harm to a heritage asset is still to be given more weight than if it were simply a factor to be taken into account along with all other material considerations, and paragraph 134 needs to be read in that way. By way of contrast, where non-designated heritage assets are being considered, the potential harm should simply be "taken into account" in a "balanced judgment" - see paragraph 135. It follows that paragraph 134 is something of a trap for the unwary if read - and applied - in isolation."
ii) He argued that while the Inspector gave weight to the benefits of the scheme at paragraphs 10-12 of the Decision Letter, and while he did refer to the two SAMs as "assets of considerable importance" in paragraph 27, he did not describe the weight he gave to the harm to their settings, and had not provided a "clear and convincing justification" as per paragraph 132 of NPPF. In paragraph 46 he simply described the balance as being that the benefits would outweigh the limited harm to the character and appearance of the area and setting of the SAMs. It was also in conflict with the Barnwell Wind Energy v E Northants approach.
Mr Honey's submissions for the Defendant
i) neither the local planning authority, nor EH, nor any objector, had ever suggested that there would be harm to Bake Rings SAM, Trevawden or Pelyne Farm;
ii) all material in the Appellant's assessments, including the Addendum, were before the Inspector and taken account of by him;
iii) the Inspector at paragraphs 24-30 of the Decision Letter had carefully addressed the degree of harm which would be caused by the proposals to the settings of the two SAMs, and concluded that it would be less than substantial. He had expressly had regard to the NPPF see paragraphs 3 and 30;
iv) he had assessed the effect on all listed buildings to which he was referred and has made his own assessment, as well as accepting that of the Appellant, and noted the lack of objection from the local planning authority and EH - see paragraph 33;
i) Mr Harwood QC's approach to the interpretation of Development Plan policy was in conflict with the principles appearing in the Tesco Stores Ltd v Dundee City Council  UKSC 13 at paragraphs 18-21 per Lord Reed that:a) one must avoid a legalistic approachb) one must construe the language in contextc) one must retain a measure of flexibilityd) judgment on the application of the policy is for the decision maker.
ii) "no adverse impact" in the context of REN 2 only makes sense if one reads it as meaning "no unacceptable impact." A balance can be struck. Were it otherwise the test would be more stringent for development outside one of the designations than it would be for development within it. The Local Planning Authority in its Statement of Case accepted the interpretation that there is a balance to be struck. In any event, the approach advocated by Mr Harwood conflicts with that in the NPPF, and the Inspector was bound to apply the test there rather than that in REN 1 or 2 as Mr Harwood interpreted them. It was a matter for the Inspector as decision maker whether the effect was acceptable. He drew support from another unreported case (Colman v Secretary of State for Communities and Local Government & Ors  EWHC 1138 Kenneth Parker J.)
i) one should not draw readily an adverse inference that the Inspector had applied the wrong approach. In fact he had expressly taken the NPPF into account (see paragraph 30 of the Decision Letter). A fair reading of the Decision Letter as a whole shows that the correct approach was applied;
ii) NPPF paragraph 132 is not a freestanding test. Reference was made to Jay J in the similarly unreported Bedford Borough Council v SSCLG  EWHC 2854 (Admin) at paragraph 17;"Two principal points arise here. First, it is clear that the test for the grant of planning consent varies according to the quantum of harm to significance. There is a presumption against granting consent if the harm to significance is substantial, or there is a total loss to significance; see paragraph 133. But if the harm is less than substantial, it is simply a question of weighing that harm against the public benefits of the proposal; see paragraph 134. I say that without prejudice to other issues which might arise under different statutes, for example section 66(1) of the 1990 Act."He also referred to Judge Waxman in the Hughes v S Lakeland judgment at paragraph 56.
iii) here the Inspector had addressed the degree of weight to be ascribed to the harm.
Discussion and Conclusions
i) He was entitled to, and did, accept the conclusions of the original Environmental Report about the effects on Listed Buildings;
ii) Had he addressed the effects on the Bake Rings SAM (which no-one had asked him to) he would have reached the same overall conclusion.
iii) The Inspector did not misinterpret the Development Plan. Even if he did, he would have been bound to give it little weight given the terms of NPPF, and a different interpretation would have made no difference to the decision;
iv) He did not misinterpret NPPF, nor apply it improperly.
i) The claim is dismissed.
ii) The Claimant do pay the First Defendant's costs agreed in the amount of £8,139.00 inclusive of disbursements and VAT.
iii) Any application for permission to appeal be made to the Court in writing by 4pm on 16 January 2015, and any response to such an application be made by the First Defendant by 4pm on 26 January 2015.
iv) The time limit for filing an Appellant's Notice is extended by 21 days from the date of decision of the High Court on permission to appeal.
Note 1 Areas of Outstanding Natural Beauty [Back] Note 2 Heritage Coast [Back] Note 3 Sites of Special Scientific Interest [Back] Note 4 National Nature Reserves [Back]
Note 1 Areas of Outstanding Natural Beauty [Back]
Note 2 Heritage Coast [Back]
Note 3 Sites of Special Scientific Interest [Back]
Note 4 National Nature Reserves [Back]