In Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council & Ors [2014] EWCA Civ 137 the Court of Appeal determined that a ‘strict approach’ should be taken by decision-makers involved with heritage setting issues, in their consideration of the specific preservation and enhancement duties under the Planning (Listed Buildings and Conservation Areas) Act 1990 (‘LBCAA’). Since then failure to follow the Barnwell approach has acted as a trip wire for many LPAs. For example, in R(Obar Camden Ltd) v Camden LBC [2015] EWHC 2475 (Admin) Stewart J found that Camden had failed to have special regard to the desirability of preserving a listed building or its setting when granting planning permission for the conversion of a public house to retail and residential use. There, the claimant operated a nightclub and live music space in a Grade II listed building which shared a party wall with the relevant site. It was concerned that new residents would complain about noise from its space, which might affect its business. It submitted written representations about heritage issues, and a noise survey from its own consultant. Following the planning officer’s report, Camden’s environmental health officer wrote to the senior planning officer, recommending that the report be amended to take into account previous noise complaints about a nightclub across the street, and noting that Camden’s noise survey did not take traffic noise into account. Camden’s committee resolved to grant planning permission, subject to certain conditions. Subsequently, environmental health officers informed the senior planning officer that the noise conditions were not satisfactory and should be rejected, and suggested new conditions which were incorporated into the decision notice under officers’ delegated powers. The Judge held that Camden had complied with its statutory duty under s.72(1) LBCAA in that it had paid special attention to the desirability of preserving or enhancing the character or appearance of the area. However, the s.66 requirement to have special regard to the desirability of preserving the building or its setting and give considerable importance and weight to that factor, had not been brought to the committee’s attention in the officer’s report, nor had the report assessed the significance of the heritage assets as required. Those were material considerations which had not been considered so the decision was therefore flawed. Anecdotally, given that Camden has subsequently  commissioned  an  independent  report from Nathalie Lieven QC into the matter, it is also of interest that the officer’s report had also not recorded the environmental health officer’s statement that the noise report had to be amended to take into account noise from the other nightclub. As the tenor of the officer’s report on that subject was not accurate its overall effect in relation to noise significantly misled the committee about material matters which were left uncorrected before the planning decision was taken. Further, the conditions suggested after the committee’s resolution were entirely different in character from what had been approved; and there had been nothing in the resolution or any other document permitting officers to reword the conditions. If the officers had wished to remove or amend the conditions they were under a duty to return to the committee to have that done.

However, last November, in Jones v Mordue [2015] EWCA Civ 1243 a differently constituted Court of Appeal from that in Barnwell took a much more benevolent view as to how the s.66(1) duty (and likewise that under s.72(1) of the LBCAA) should be addressed. Again, the subject- matter was the ubiquitous wind turbine, the subject of a planning appeal. Following the approach taken by the House of Lords to “reasons challenges” in the two leading cases, Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 and South Buckinghamshire DC v Porter (No.2) [2004] 1 WLR 1953. Sales LJ, giving the judgment of the Court, has sought to ‘explain’ Barnwell, which, when read in context, was not intended to state an approach to the reasons required to be given by a decision-maker dealing with a case involving application of s.66(1) which was at variance from, and more demanding than, that stated in SAVE and South Bucks. Accordingly, the relevant standard to be applied in assessing the adequacy of the reasons given in the instant case was indeed the usual approach explained in SAVE and South Bucks. They did not have to separately address the specific statutory duty under s.66(1). Rather, they could be briefly stated, provided they were intelligible and adequate so as to enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues including how this issue of law was resolved. Again, the degree of particularity required depended entirely on the nature of the issues falling for decision. On the facts, and, applying the correct approach, it could not be said that the inspector’s reasoning gave rise to any substantial doubt as to whether he had erred in law. On the contrary, his express references to local policy and para.134 of the NPPF were strong indications that he had in fact had the relevant legal duty according to s.66(1) in mind and had complied with it. Paragraph 134 appeared in part of the NPPF which lay down an approach which corresponded with the duty in s.66(1). Generally, a decision-maker who worked through those paragraphs in accordance with their terms would have complied with the s.66(1) duty. However, this author’s view is that caution needs to be exercised as to the wider application of this approach to LPA decision-making; for it a well-established principle, endorsed in SAVE and South Bucks, that the standard of reasons is commensurate with the likely readership of the document in question. With PINS decision letters the parties are assumed to be sufficiently informed. In contrast, with local authorities and their committee members the same assumption cannot and should not be paid; and what may pass for “local knowledge” may not equate with a sufficient legal or technical understanding even as in Obar Camden. Clearly, much still depend upon the quality of the work done by reporting officers; and the continuing need to legally audit such reports in draft remains a significant safeguard against judicial review challenges.

The Court of Appeal has taken a similar benevolent view to procedural irregularity in the recent case of R (Gerber) v Wiltshire Council & Ors [2016] EWCA Civ 84. Planning permission had been granted under delegated powers for a solar farm on a 22 hectare site in June 2013. Mr Gerber, the owner of a nearby Grade II* listed building, had not seen the planning notices and had only become aware of the installation when work started. He immediately contacted the Council in March 2014 but did not apply for judicial review until October 2014. The solar farm was completed in June 2014. Dove J ([2015] EWHC 524 (Admin)) had quashed the planning permission and ordered the removal of the solar panels. It was common ground that the companies would have to spend £1.5 million in dismantling the panels and restoring the land, and would lose expenditure of £10.5million. The appellant Council and Interested Parties submitted that that the judge had erred in holding that the Council had created a legitimate expectation of neighbour notification by reason of its Statement of Community Involvement (SCI), in his assessment of the significance of Mr Gerber’s delay in commencing his claim under both CPR Part 54 and the Senior Courts Act 1981 s.31(6), and, in the exercise of his discretion to quash the planning permission. Sales LJ, giving the Court’s judgment again, found that the SCI did not contain an unambiguous promise that any neighbour would be consulted about the application for planning permission. The judge had been wrong to run together para.5.6 of the SCI with its Appendix. Paragraph 5.6 was limited to properties adjoining the development site rather than neighbouring properties such as that of the householder. There had been no breach of Mr Gerber’s legitimate expectation. As the judge’s error regarding legitimate expectation had affected the exercise of his discretion to extend time to bring the claim. He had had no reasonable explanation for his lengthy delay in bringing judicial review proceedings; and in the light of a developer’s detrimental reliance on permission, it was incumbent on an objector to bring proceedings without delay. Even if time were to be extended, the judge’s exercise of his discretion under s.31(6) of the 1981 Act was also flawed. Given the long delay for which there was no good excuse; the major financial detriment which would be suffered by the companies; the lesser harm to the householder’s amenity; the balance of factors affecting good administration, including the importance of renewable energy in the national interest, and the need for certainty and finality, his order quashing the planning permission had to be set aside.

Whilst the decision of Dove J. was surprising it appeared just in the circumstances, given the Council’s failures both to consult Historic England (then English Heritage) as well as not notify Mr Gerber. Common sense suggests that Dove J. was right to find that it had not been possible to discharge the s.66(1) duty without obtaining the input of the relevant national body with responsibility for such matters. That omission had also been compounded by the fact that there had also been no mention of the s.66(1) duty in the documentary record relating to the decision, the conservation officer having relied on a site visit which had taken place several years earlier and a single photograph. Accordingly, it is unfortunate that such a lax approach has now, seemingly, been endorsed by the Court of Appeal, one that too often occurs with significant and lasting consequences. Whilst both recent Court of Appeal decisions concerned renewable energy projects with a finite life heritage assets are a “non- renewable resource”. Judicial review is an expensive exercise; and even with costs limitation under CPR Part 45.43 access to environmental justice over heritage issues should, in this author’s view, not be unfairly blunted in the interests of judicial pragmatism.

John Pugh-Smith has been and is currently involved with a number of judicial review cases involving the issues raised by this article, including the potential physical harm to a Grade I listed building as well as to its setting by a major London development project.