On 18 February the Court of Appeal gave its eagerly anticipated judgment in Barnwell Manor Wind Energy Ltd v. East Northants DC, English Heritage and National Trust  EWCA Civ 137. This high-profile case concerned an inspector’s decision granting planning permission for a 4-turbine wind farm affecting the setting of a number of high-value heritage assets in Northamptonshire, including the internationally significant Elizabethan complex at Lyveden New Bield. The inspector found some, but “less than substantial”, harm to the setting of the assets, and held that harm outweighed by the “significant” weight attaching to the renewable energy benefits of the scheme. Lang J quashed the grant of permission. Barnwell Manor Wind Energy Ltd, through Eversheds, instructed Gordon Nardell QC and Justine Thornton to appeal. The Court of Appeal has now upheld Lang J’s decision, in the process clarifying what decision-makers have to do to meet the “special regard” duty under Listed Buildings Act 1990 s. 66(1). The next edition of the Newsletter will include a more detailed analysis of this important decision, which is a salutary reminder of the great care needed when promoting and determining applications for onshore wind development capable of affecting the setting of heritage assets. Meanwhile the headlines are:
- The assessment of harm is a matter of planning judgment. However, once the decision-maker finds some harm to a heritage asset, the effect of s. 66(1) is that the harm must be given “considerable weight” in the balance, creating a “strong presumption” against the grant of planning permission.
- In striking the balance, it is not enough simply to ask whether the advantages of the scheme outweigh the harm in a loose or general sense, but whether they sufficiently outweigh harm to rebut that strong presumption.
- The courts will need to see some real indication on the face of the decision that the section has been approached in that way. Here, even though the inspector referred (in several places) to s. 66(1), Sullivan LJ thought that he “appears to have treated the less than substantial harm to the setting of the listed buildings….as a less than substantial objection to the grant of planning permission” Even where harm is properly assessed as less than substantial, “it does not follow that the ‘strong presumption’ against the grant of planning permission has been entirely removed” (paragraphs 28 and 29 of the judgment).
- The Court of Appeal also agreed that the inspector had misapplied policy on heritage assets in what was then PPS5 (now incorporated into the NPPF), undermining his assessment of the harm as “less than substantial”. He had failed to properly examine the contribution the setting of the assets made to their significance, with the result that his assessment of the harm caused by the introduction of the turbines to that setting was flawed. Nor was it clear how he could rationally have treated the distinction between “substantial” and “less than substantial” harm as turning on the observer’s ability to distinguish between the heritage assets and the obviously modern turbines.