CoA rejects reasonable observer test for wind turbines and heritage assets

Using the test of what a reasonable observer would think was not a good enough ground for a planning inspector to allow construction of a wind turbine near a stately home, the Court of Appeal has said.

In its judgement on whether to allow the turbines in Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council, English Heritage, The National Trust and the Secretary Of State For Communities and Local Government, judges held they would be too close to the 17th century Lyveden New Bield, a manor and lodge with a renowned Elizabethan garden.

East Northamptonshire rejected the application in 2010, but developer West Coast Energy then won a planning appeal for permission for four turbines, which was in turn overturned by the High Court. The company then appealed.

Appeal judges noted the inspector had said that the presence of the wind turbine array would not be so distracting that it would prevent understanding, appreciation or interpretation of Lyveden New Bield and that “any reasonable observer would know that the turbine array was a modern addition to the landscape, separate from the planned historic landscape, or building they were within, or considering, or interpreting”.

While it was plain that any reasonable observer would know that the turbine array was a modern addition to the landscape the judges could not understand “how it could rationally justify the conclusion that the detrimental effect of the turbine array on the setting of Lyveden New Bield would not reach the level of substantial harm”.

Planning guidance and policy “nowhere suggests that the question whether the harm to the setting of a designated heritage asset is substantial can be answered simply by applying the ‘reasonable observer’ test adopted by the inspector in this decision”, the judges said.

“If that test was to be the principal basis for deciding whether harm to the setting of a designated heritage asset was substantial, it is difficult to envisage any circumstances, other than those cases where the proposed turbine array would be in the immediate vicinity of the heritage asset, in which it could be said that any harm to the setting of a heritage asset would be substantial.”

East Northamptonshire said it was “delighted” that its rejection of the scheme had been upheld.

Simon Thurley, chief executive of English Heritage, said: “We are very pleased that the Court of Appeal has underlined the vital principle of preserving important historic places like Lyveden New Bield - one of the most beautiful and unspoilt Elizabethan landscapes in England.

“The subsequent reasoning of the planning inspector did not pay enough attention to the significance of this exotic jewel in the landscape; to allow turbines here would have had an appalling impact on a very special place.”