The quashing of an Inspector’s decision to grant planning permission for a wind farm development has highlighted the special status given by the law to the need to preserve listed buildings and their settings.

Listed buildings have had special protection in the planning system since 1990, when section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act introduced a requirement that when considering a planning application for development that affects a listed building or its setting the decision maker, “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 possess.”

In East Northamptonshire District Council v Secretary of State for Communities and Local Government the Council, together with English Heritage and the National Trust, challenged an Inspector’s decision to grant planning permission on appeal for a wind farm development located in the vicinity of a number of listed buildings and Lyveden New Bield, a Grade 1 listed Elizabethan garden.

While the Inspector recognised the statutory test set out in section 66(1) and found that the proposal would cause harm to the setting of a range of designated heritage assets, his view was that, “At its worst, that harm would not reach the level of substantial.”

The judge quashed the decision on a number of heritage related grounds but was especially critical of the failure by the Inspector to recognise that the effect of section 66(1) was that any detrimental impact on listed buildings or their setting should be given “special weight”. Her criticism was that the Inspector had treated the harm to the setting of the listed buildings and the benefits of the proposed wind farm as if they were equal factors and in doing so ignored the special importance that Parliament has placed on the protection of listed buildings by passing section 66(1).

Comment: This case is a helpful reminder that not all material considerations should be treated the same. In the same way as the Development Plan has a special legal significance, so to do those material considerations that have a statutory underpinning. At a time when material considerations such as the strong Government policy support for renewable energy and the National Planning Policy Framework can appear to be sweeping all other material considerations before them, it is important that decisions take proper account of all material considerations in order to avoid possible legal challenge.