In the February Newsletter we outlined the Court of Appeal’s judgment in Barnwell Manor Wind Energy Ltd v. East Northants DC and others [2014] EWCA Civ 137. The court upheld Lang J’s quashing of an inspector’s decision granting planning permission for a 4-turbine wind farm on grounds relating to impact on the setting of several high-value heritage assets. This article focuses on the part of the judgment  likely to have the farthest-reaching consequences, not least for onshore wind development: when will the courts intervene on the ground of failure by the decision-maker to comply with the duty under Listed Buildings Act 1990 s. 66(1) to have “special regard to the desirability of preserving [a listed] building or its setting…”?

The Barnwell inspector’s decision contained several references to s. 66(1). Applying (then) PPS5 policies HE.9 and HE.10 – now replaced by similar NPPF provisions – he found some, but “less than substantial” harm to setting. Striking the balance, he held the harm outweighed by the renewable energy benefits of the proposal, which – in accordance with advice then in PPS22 – attracted “significant” weight.

Central to any decision to which s. 66(1) applies is a series of judgments: does the scheme cause harm to the setting of heritage assets? If so, how much? And do its benefits outweigh that harm? As all involved in development challenges well know, perversity aside, those questions are off-limits to the courts: “if there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State” (Lord Hoffmann in Tesco Stores v. SSE [1995] 1 WLR 759). How, then, can that be reconciled that with a statutory duty that mandates some sort of “special” treatment for a particular factor?

Lang J examined the authorities on s. 66(1) and its predecessors, all decisions of some age and pre- dating Tesco: Bath Society [1991] 1 WLR 1303, South Lakeland [1992] 2 AC 141 and Heatherington 69 P&CR 374. She concluded that s. 66(1) required the decision-maker to “accord considerable importance and weight” to the desirability of preserving setting when weighing that factor in the balance. It was therefore “necessary to qualify” Lord Hoffmann’s Tesco statement. The inspector had failed to accord “considerable importance” to the statutory objective. Rather, he “treated the harm to the setting and the wider benefit of the… proposal as if those two factors were of equal importance.”

That last statement is obviously problematic. Any decision to grant permission in a s. 66(1) case necessarily involves the decision-maker finding the “wider benefit” to be of atleast equal importance or weight as the detriment to setting. On appeal, it was argued that this reflected a more fundamental error in the judge’s reasoning: in treating s. 66(1) as  qualifying Tesco, she had wrongly strayed into second-guessing the inspector’s exercise of judgment. As elsewhere in administrative law, the important point is to ask the right question: following a careful assessment, does the benefit sufficiently outweigh the harm to justify the grant of permission? For the court to go further and ask itself whether, relatively speaking, enough weight was given to detriment – or put another way, whether too much weight was given to benefit – trespasses on the forbidden turf of merits.

The Court of Appeal rejected that argument. Sullivan LJ held that the Parliamentary intention behind s. 66(1) was to require the decision-maker not simply to give “careful consideration” to the desirability of avoiding harm, but to give that factor “considerable importance and weight” in the balance. Adopting Lord Bridge’s (obiter) remarks in South Lakeland, a finding of harm created a “strong presumption” against granting permission. So, while the inspector’s assessment of the degree of harm was “a matter for his planning judgment”, he was not then “free to give that harm such weight as he chose” when striking the balance. That did not conflict with Tesco: that case did not concern s. 66(1) but the ordinary duty under TCPA 1990 s. 70(2) to have regard to material considerations, a provision which Parliament had made “expressly subject to the s. 66(1) duty”. Here, the inspector appeared to have “treated the less than substantial harm to… setting… as a less than substantial objection” to granting permission. While the inspector had referred to s. 66(1), no “particular passage in the decision letter” indicated that he had given “considerable weight” to the statutory objective; nowhere did he “expressly acknowledge the need” to do so.

Where does it leave us? The key point – as we observed in February – is that once a decision- maker finds harm to setting, there must be some express acknowledgement of the “considerable” weight to be given, in the balance, to the desirability of avoiding that harm. It is not enough to ask in a general sense whether benefits outweigh harm, but whether they do so sufficiently to rebut the strong presumption against permission. That much  is clear, and all those involved in decision-making about wind turbines in the vicinity of heritage assets should take careful note. Less clear, though, are the precise boundaries of the court’s role in assessing whether the s. 66(1) duty has been met.

Here, after all, the inspector made multiple references to s. 66(1) and must have given “significant” weight to its objective — otherwise why bother to record that at least an equally “significant” benefit was necessary to outweigh it? By criticising the inspector for omitting some further mantra about “considerable weight” or “strong presumption”, the Court of Appeal risks reducing a question of substance to one of semantics. On the other hand,  if the court’s investigation is more than merely semantic – in other words, if its role is to determine whether the decision-maker in fact attached sufficient weight to the statutory objective – then it is hard to avoid the conclusion that we have entered the realm of merits review. The care Sullivan LJ took to distinguish Tesco rather hints at this, and the establishment of a Planning Court with a cadre of specialist judges (see Richard Harwood QC’s article in this edition) could add impetus in that direction. If that is the right reading of the decision, then Barnwell marks a very significant change in the  wind indeed.