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Court of Appeal confirms parliamentary intention overrides an exercise of expert judgment

Developers should also be aware that the case clarifies the way in which the planning balance must be struck by decision makers.  They are not free to give harm to heritage assets such weight as they may choose when carrying out the balancing exercise.  Instead, they must give particular weight the desirability of avoiding such harm when assessing whether the advantages of the proposal outweigh that harm. The rejection of the "reasonable observer" test will also be a significant constraint on the ability to construct wind farms and other new development in sensitive locations.

The Court of Appeal in Barnwell Manor Wind Energy Ltd v (1) East Northamptonshire District Council (2) English Heritage (3) National Trust [2014] EWCA Civ 137 overturned an exercise of planning judgment which had failed to follow the intention of Parliament by giving considerable importance and weight to the desirability of preserving the local landscape and heritage assets when assessing a proposed development.

Key points:

    Although certain matters are for the judgment of public law decision makers, that judgment must be subject to the correct application of the statutory test.
    Decision makers must pay special regard to the preservation of heritage assets when balancing competing considerations in assessing a planning application.
    There is a strong presumption against granting planning permission where there has been a finding of harm to heritage assets.
    A finding of less than substantial harm does not remove the strong presumption or lessen the requirement to give considerable  importance and weight to the harm.

Background

The developer sought planning permission for the construction of a four turbine wind farm within the vicinity of a group of heritage assets in Northamptonshire. The closest wind turbine was situated 1.3km from the most significant asset, Lyveden New Bield, a Grade I listed building and Elizabethan Garden owned by the National Trust.

During the planning inquiry, the Planning Inspector ('Inspector')recognised the heritage assets possessed national cultural and historic significance of the highest magnitude. However, the Inspector concluded that in the eyes of a reasonable observer the wind turbines would be viewed as a separate modern addition to the local setting and would not impose a level of substantial harm upon the landscape. In carrying out his balancing exercise, the Inspector stated that the significant benefits produced by renewable energy outweighed the less than substantial harm to the heritage assets.

On appeal, the High Court declared that Parliament intended that decision makers must accord "considerable importance and weight to the desirability of preserving the setting of the listed building" when carrying out a balancing exercise. The appellant challenged the decision of the High Court to quash the Inspector's grant of planning permission and submitted that Lang J had erred in interpreting the statutory position.

Court of Appeal decision

Agreeing with the High Court, the Court of Appeal upheld Lang J's decision and dismissed the appeal. The Court of Appeal held that the inspector had made a "fatal flaw" in failing to give considerable importance and weight to the preservation of heritage assets.

Planning authorities must pay special regard to the strong presumption against harm to a heritage asset

In interpreting the general duty under s 66(1) of the Planning (Listed Buildings and Conservation Areas Act) 1990, the Court of Appeal affirmed that a "strong presumption" exists against granting planning permission for developments that would harm the character or appearance of a listed building or heritage asset. Parliament intended that any finding of harm as a result of a proposed development imposed a requirement upon decision makers to give  "considerable importance and weight" to the preservation of listed buildings. The inspector had failed to fulfil this duty as he treated the less than substantial harm to the heritage assets, "as a less than substantial objection to the grant of planning permission".

In addressing the policy requirements of s 66(1) of the Listed Buildings Act, the Court of Appeal held that a finding of less than substantial harm will decrease the strength of the presumption against granting a planning permission, but the presumption will not be entirely removed.

Matters of planning judgment are still subject to the Court's control

The Court of Appeal distinguished the present case from Lord Hoffman's judgment in Tesco Stores v Secretary of State for the Environment & Ors [1995) 1 WLR 759 emphasising the need to afford decision makers a wide discretion in matters of planning judgment. Although the Inspector's assessment of the degree of harm to the listed building was a matter for individual judgment, he was wrong to give the harm less than considerable weight as such treatment contravened the clear intention of Parliament.

The Court of Appeal was also highly critical of the Inspector's use of a "reasonable observer" test to assess the level of harm to a designated heritage asset. It had difficulty in understanding the Inspector's conclusion that a reasonable observer would always be able to understand that the modern turbines were separate from the historic landscape, therefore resulting in less than substantial harm to the heritage assets.

Comment

The Court of Appeal recognised that although questions of planning judgment are generally the responsibility of planning authorities, where consideration of planning policy is flawed, the Court is prepared to clarify the weight to be given to certain material factors in line with the intention of Parliament. The Court of Appeal was therefore more than willing to intervene to overturn an exercise of judgment where the public law decision maker had not set out clearly that he had understood the correct statutory position and applied it.

The decision therefore emphasises the need for public law decision makers to ensure their decisions are robust, properly reasoned and tied back to the underlying legal powers they have been given.

Developers should also be aware that the case clarifies the way in which the planning balance must be struck by decision makers.  They are not free to give harm to heritage assets such weight as they may choose when carrying out the balancing exercise.  Instead, they must give particular weight the desirability of avoiding such harm when assessing whether the advantages of the proposal outweigh that harm.

The rejection of the "reasonable observer" test will also be a significant constraint on the ability to construct wind farms and other new development in sensitive locations.


Source: http://www.lexology.com/lib...

APR 8 2014
http://www.windaction.org/posts/40271-court-of-appeal-confirms-parliamentary-intention-overrides-an-exercise-of-expert-judgment
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