The impact of windfarms on heritage assets

Emyr Thomas examines a recent High Court ruling on a decision to grant planning permission for a windfarm near heritage assets.

In the case of (1) East Northamptonshire District Council (2) English Heritage (3) National Trust v (1) Secretary of State for Communities & Local Government (2) Barnwell Manor Wind Energy Ltd [2013] EWHC 473 (Admin) the claimants succeeded in their claim under s.288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s decision to grant planning permission for a wind farm which would have affected the setting of a number of designated heritage assets including Lyveden New Bield, a Grade I listed Elizabethan house and garden. 

The council had refused planning permission on grounds which included the unacceptable harm that the proposed development would cause to the local setting and the development’s conflict with planning policy and guidance, specifically PPS5 and PPS22.

On appeal the inspector concluded that, although the proposal would harm the setting of designated heritage assets, the harm would in all cases be less than substantial and would also be reduced by the temporary nature (25 years) of the planning permission and its reversibility.  Moreover, the inspector concluded that the significant benefits of the proposed development outweighed the harm it would cause to the setting of the heritage assets and the wider landscape.

The issues in dispute on the application were whether the inspector had (i) had special regard to the desirability of preserving the settings of listed buildings as required by section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990; (ii) correctly interpreted and applied planning policy on the effect of development on the setting of heritage assets; and (iii) given adequate reasons for his decision.

The Decision

Harm and the balancing exercise

First, the duty set out in s. 66(1) needs to be considered in the context of the overall consideration of a planning application and the determination of an application for planning permission (and any appeal) is to be made in accordance with the development plan unless material considerations indicated otherwise.

Here, "material considerations" included Government planning policies and English Heritage policies and, to give effect to the s. 66(1) duty, the decision-maker should give considerable importance and weight to the desirability of preserving the setting of listed buildings when weighing that factor in the balance with other material considerations which had not been given special legislative status. 

The judge said that in carrying out this balancing exercise, the inspector had failed to give proper effect to s. 66(1). Although he had weighed the "harm" of the proposal against the wider benefits and the concept of keeping safe from harm was closely linked with the meaning of "preservation" within s. 66(1), the addition of the word "desirability" in s. 66(1) provision meant that "preservation" of setting was to be treated as a desired or sought-after objective, to which the inspector ought to accord "special regard". That went beyond the mere assessment of harm.

The judge concluded that the inspector had not, during the balancing exercise, accorded “special weight” or considerable importance to “the desirability of preserving the setting”. The inspector had, instead, treated the "harm" to the setting and the wider benefit of the wind farm proposal as if those two factors were of equal importance and so he had not given effect to the duty under s.66(1).

Significance of the heritage assets

Secondly, the inspector had not adequately summarised the intrinsic significance of certain of the heritage assets but had merely identified them, described their listing and concluded that they were clearly heritage assets of national significance.  Although he had listed the 4 categories of significance, he had not decided which category applied or why. In addition, he had not identified the contribution made to the significance of the assets by their setting. The judge also considered that the inspector’s assessment of the significance of Lyveden New Bield, and its setting, was unsatisfactory.

The judge considered that the inspector had failed to have proper regard to the relevant planning policies, in particular by limiting his assessment to the ability of the public to understand the asset, and so had failed also to consider the contribution made by the setting to the significance of the asset. The policies required a wider assessment to be taken. The inspector had failed properly to interpret and apply the relevant planning policies on the effect of development on the setting of heritage assets. This error would probably have affected the balancing exercise which he was required to carry out, because, by failing properly to assess the contribution made by setting to the significance of the heritage assets, the inspector might have failed properly to assess the overall magnitude of harm. On the balance of probabilities, therefore, it is likely that the balancing exercise was flawed.

Inadequate reasons

Thirdly, the inspector should have given a clear conclusion (with reasons) on whether or not there were planned views, before proceeding to assess the level of harm. 

The failure to give adequate reasons contravened rule 19(1) of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 and prejudiced the local authority, as it was not able to ascertain the inspector's conclusions in relation to an important controversial issue, nor whether he had made an error of law.

Outcome

The claimants’ application therefore succeeded, the inspector’s decision was quashed, and the matter sent back to the Secretary of State for re-consideration.

Emyr Thomas is a Senior Solicitor at Sharpe Pritchard. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it.. Sharpe Pritchard acted for the claimants in this case.