The key issue in the recent Barnwell Manor decision  was how a decision- maker should discharge its statutory duty to have ‘special  regard to the desirability of preserving1’ listed buildings, their settings and features of special  architectural or historic interest. The Court of Appeal has provided clarification  for decision  makers when considering whether to grant planning permission2. The judgment will be relevant to any  developer of any scheme near heritage sites.

Previous case law3  had established that ‘preserving’, in the context of the statutory duty meant  doing no harm” and that there should be a “strong presumption” against granting planning  permission for development which would result in harm.

This note looks at three decisions. Firstly, the Barnwell Manor decision, which considered the  statutory duty in the context of PPS 5 and its practice guidance4. Secondly, a further more recent  case which considered the statutory duty in the context of the National Planning Policy Framework (NPPF) (Pond Farm decision). Finally, we look at the decision in Bayliss which had to consider the balancing exercise in the context of the NPPF requirement to give ‘great weight’ to conserving landscape and scenic beauty in AONBs.

Barnwell Manor Wind Energy Limited v. East Northamptonshire District Council and others (18/02/2014)

What was the scheme?

A four turbine onshore wind scheme at Barnwell Manor, East Northamptonshire was originally granted  planning permission at appeal on 12 March 2012. The wind farm affected the setting of a number of  heritage assets including Lyveden New Bield, owned by the National Trust and designated as a Grade  1 listed building, Scheduled Ancient Monument and Grade 1 Registered Park and Garden of Special  Historic Interest. The closest turbine was approximately 1.3 km from the boundary of the Registered Park and 1.7km from the New Bield itself.  The grant of permission was challenged by the local planning authority5, English Heritage and the  National Trust, and was quashed in the High Court on 11 March 2013. The wind farm developer then  appealed the decision to the Court of Appeal6.

The issue

The key issue was whether the statutory duty to have ‘special regard’ required the decision-maker  to give heritage considerations particular weight when carrying out the balancing exercise, or  whether weight was a matter of planning judgement entirely for the decision- maker’s discretion.

On the facts of this particular case and having regard to PPS 57  and its practice guidance8, the  Inspector had judged that the harm caused by the development on heritage assets would be less than substantial.

The Inspector had given ‘significant weight’ to the renewable energy benefits of the scheme. There was  no evidence that he had given  the heritage considerations any particular weight when balancing the harm to them against the  renewable energy benefits of the scheme.

The judgment

The Court of Appeal’s decision makes it clear that the statutory duty applies to all listed  buildings, including when the harm is judged to be less than substantial. The Court of Appeal  judgment found that Parliament’s intention in enacting the statutory duty was that decision- makers  should give “”considerable importance and weight” to the desirability of preserving the setting of  listed buildings when carrying out the balancing exercise.”

As an example of how to apply the statutory duty and guidance in PPS5 to a Grade 1 listed building  the Court of Appeal said:

“If the harm to the setting of a Grade 1 listed building would be less than substantial that will  plainly lessen the strength of the presumption against the grant of planning permission (so that a  grant of permission would no longer have to be “wholly exceptional”), but it does not follow that  the “strong presumption” against the grant of planning permission has been entirely removed9”.

The Court of Appeal also considered whether the Inspector had misapplied policy or failed to give  adequate reasons for arriving at the conclusion that harm to the setting of the listed buildings,  including Lyveden New Bield, would be less than substantial.

It held that the Inspector had not grappled with the objectors’ case that the setting of Lyveden  New Bield was of crucial importance to its significance because it was designed to dominate the surrounding rural landscape and afford extensive views over that landscape10. Finally, it rejected the Inspector’s use of a ‘reasonable observer’ test (i.e. whether a reasonable observer would be able to distinguish the modern turbines from the heritage asset), as a decisive test for concluding that there would be less than substantial harm to the heritage assets. A reasonable observer would always be able to understand the differing functions of the heritage asset and the turbine array. The question whether the harm to the setting is substantial could not be answered simply by applying the ‘reasonable observer’ test, this was just one factor to be considered when assessing the contribution of setting to the significance of a heritage asset.

The decision to grant planning permission will now be remitted back to the Planning Inspectorate for re-consideration. 

North Norfolk District Council v. Secretary of State for Communities and Local Government and David Mack (14/02/2014)

The Barnwell Manor case was considered in the context of PPS 5 and its practice guidance. However,  the more recent challenge of the Pond Farm decision in the High Court11  (handed down just before  the Barnwell Manor Court of Appeal decision) considered the statutory duty in the context of the  NPPF12.

What was the scheme?

This challenge was against the grant of permission, on appeal, for one turbine at Pond Farm, Bodham  in Norfolk.

The issue

There were two grounds of challenge. The Court found that the Inspector’s decision letter revealed  no error in the treatment of the development plan.

However, it also had to consider the question of whether the Inspector, who had applied the NPPF,  had in substance complied with his statutory duty to listed buildings. This case therefore also  considered the relevant parts of the NPPF and the statutory duty to preserve listed buildings.

The judgment

In accordance with the approach  taken to the Barnwell Manor case (in the High Court and now  confirmed by the Court of Appeal) it was held that the statutory duty required more than a  straightforward balancing exercise.

The Court found that, taken as a whole, the advice in the NPPF is consistent with the statutory  duty, having regard in particular to paragraphs 131 and 132 where it advises that great weight  should be given to the conservation of a designated heritage asset and that clear and convincing  justification should be required for any harm or loss.

The Court held that it is essential that in applying the subsequent advice in paragraph 134 of the  NPPF, which is expressed in terms of a balance rather than expressly referring to issues of weight  and significance, the approach of the decision-maker is consistent with the statutory duty.

The decision-maker should not address the question “as a simple balancing exercise but whether  there is justification for overriding the presumption in favour of preservation.” The judgment goes  on to say that it is not necessary for the decision-maker to pass through a particular series of  legal hoops, nor recite any particular form of words to demonstrate this. But this did not mean  that the desirability of preserving the setting of a listed building should be treated by a  decision-maker as a “mere material consideration to which (he) can simply attach the weight (he)  sees fit in (his) judgement”.

While it was not important for the purposes of the particular decision, the Court noted that the statutory duty applies the  presumptive desirability of preservation directly to the setting of a listed building, while in the  NPPF the advice is directed to the significance of the asset itself.

Bayliss v. Secretary of State for Communities and Local Government & Others (26/02/2014)

On 26 February 2014, in a challenge to a planning permission granted on appeal for the Purbeck  Windfarm in Dorset, the Court of Appeal13  came to a different conclusion when it considered a  similar issue arising from impact on an Area of Outstanding Natural Beauty (AONB).

The issue

The NPPF requires “great weight” to be given to conserving landscape and scenic beauty in AONBs.  The question for the Court of Appeal was whether the Inspector, having found that the development  would cause harm to the AONB, was wrong in the way he gave weight to that harm in the balancing  exercise.

The Inspector had considered that harm to the AONB was limited and so he attached limited weight to  this as a consideration in the balancing exercise, notwithstanding the policy requirement to give  the consideration “great weight”.

The judgement

In an ex tempore judgment14  Sir David Keane said that the Inspector was entitled to approach the  balancing exercise by attaching differing weight to different considerations based on the  Inspector’s assessment of the nature of the impact. No application for leave to appeal the Purbeck  decision has been made to date. Comment and analysis

Whilst the written judgment for Purbeck Windfarm is awaited, and although there was no real  consideration of the Barnwell Manor and Pond Farm decisions before the Court, the Purbeck Windfarm  case appears to follow a different approach to Barnwell Manor and Pond Farm.

It may be possible to distinguish the Purbeck decision on its particular facts. The case should be  seen in  the context that the Inspector had made a clear finding of limited harm to a limited part  of the AONB, and that the parties themselves had given the issue of harm to the AONB limited  attention at the inquiry.

The Barnwell Manor decision is an important one. Requiring the decision-maker to give particular  weight to heritage considerations in the balancing exercise makes that exercise a complex one and  makes demonstrating  acceptable development in close proximity to listed buildings more difficult.

Once the written judgment is available, the Purbeck Windfarm decision is likely to be equally as  important for setting out the approach to be taken where there is a policy requirement to give  particular weight to a material consideration  but where harm is considered to be limited. It  remains to be seen from the written judgment whether the seemingly different approach in Purbeck  Windfarm can be reconciled with Barnwell Manor on its facts, and particularly the very limited harm  in the Purbeck Windfarm case.