Whilst the general rule is that the weight to be attached to material considerations is a matter for the planning decision maker, some require particular attention. Decisions which affect heritage assets are one such example. In its landmark decision in Barnwell Manor, 1 the Court of Appeal confirmed that the duty in section 66(1), of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Listed Buildings Act) to have special regard to the desirability of preserving a listed building or its setting or any features of special architectural or historic interest which it possesses means these factors should not be regarded as ‘bog standard’ material considerations to which decision makers may attach such weight as they see fit.
Following on from this decision there have been a number of cases which have resulted in the grant of planning permission being quashed because of a failure to demonstrate that the special nature of these duties (and similar duties concerning conservation areas) have been properly taken into account in the planning balance. However, the courts have also been loath to intervene if the decision maker has identified the correct statutory and policy tests but then decided that the benefits of development should outweigh the impact on heritage assets. A recent Court of Appeal decision has reinforced this principle 2. The case involved a challenge by Jane Mordue, chair of Wappenham Wind Turbine Action Group, to an inspector’s decision to grant planning permission for a wind turbine at Poplars Farm, Wappenham, Towcester. It was accepted by the parties that the wind turbine would affect the setting of a Grade II* listed Church and, to a lesser extent, other listed buildings. The inspector had concluded that the harm the wind turbine would cause to the landscape and heritage assets in the area was outweighed by its environmental benefits of renewable energy.
A challenge to this decision was allowed by deputy judge John Howell QC. Who accepted the Challenger’s argument that the Inspector had failed to demonstrate in his reasoning that he had complied with his duty under section 66(1) of the Listed Buildings Act. On appeal the Court of Appeal reversed the High Court’s ruling. In his leading judgment Sales LJ cautioned against taking an over-zealous approach to demonstrating compliance with section 66. According to Sales LJ, as a general rule, a decision-maker who works through the relevant paragraphs in the NPPF in accordance with their terms will have done enough to demonstrate compliance with the statutory duty.
So whilst the case in no way undermines the potency of the duties to have special regard to the preservation of heritage assets, it does suggest that there are no special rules when it comes to demonstrating compliance.