How ruling clarifies approach to assessing heritage harm

A Court of Appeal decision reinstating an inspector's approval of a wind turbine provides clarity on how planners can show they have complied with a duty to have special regard for the desirability of preserving the setting of listed buildings.

Court of Appeal: overturned block on turbine plans
Court of Appeal: overturned block on turbine plans

A wrangle over plans to deliver a wind turbine in South Northamptonshire took a fresh twist this month when Court of Appeal judges overturned a High Court decision that had effectively blocked the proposals. Experts say the latest ruling confirms what steps decision-makers should take to reach their conclusions, and what should and should not be included in their decision letter.

Plans were submitted to build a single wind turbine and associated hard standing, access road and electricity sub-station at Poplars Farm in Towcester, South Northamptonshire. The proposals were refused by South Northamptonshire Council but later given the go-ahead by a planning inspector following an appeal.

The proposed turbine sits in the vicinity of several listed buildings, including a Grade II listed church. The inspector said the turbine would cause harm to the countryside setting of the church, but added that this would be "less than substantial". He concluded overall that the harm of the development was outweighed by its environmental benefits.

The case reached the High Court, where deputy judge John Howell QC quashed the planning inspector’s decision. The deputy judge ruled that the inspector, when outlining his reasoning, had failed to demonstrate that he had complied with a duty to have special regard for the desirability of preserving the setting of the listed buildings.

However, three Court of Appeal judges this month reversed the High Court decision. Lord Justice Sales said the inspector’s reference to a specific local plan policy and a paragraph in the NPPF were "strong indications" that he had complied with the duty. He said the "appropriate inference is that he has taken properly into account all those provisions, not that he has forgotten about all the other paragraphs apart from the specific one he has mentioned".

Roger Mascall, director and head of heritage at consultancy Turley, said that while the case deals primarily with what the decision-maker must show when making a decision, it also confirms "almost beyond doubt what you need to do when dealing with heritage setting".

He added: "[Lord Justice Sales] basically says that as long as you work your way through the relevant paragraphs of the framework of the NPPF, with respect to heritage matters, take due account of their terms, you will be compliant with the statutory duties [covering listed buildings, their setting and conservation areas]."

Mascall added that case law highlighted that when dealing with impact on listed building setting you must "very carefully consider it, and show you are very carefully considering it." He said there was a time when some committee reports would not mention statutory duties relating to listed buildings and their setting and conservation areas. Mascall added that case law has encouraged most local authorities to ensure they mention and take account of the duties.

Keith Fenwick, a director at consultancy WYG, added that the Court of Appeal decision is about "the quality of reasoning in an inspector’s decision and what is and isn’t necessary to see in a decision letter". "It does not materially impact upon how we undertake heritage analysis in a planning world," he added.

Fenwick said: "What this does is say [that]… if the inspector has identified the relevant policies within the framework [and] the local plan, the fact that he may not have specifically said, ‘I have given this amount of weight to that specific line in that specific policy’ does not invalidate the decision.

NOTE: This article was amended on 15 December. The introduction had said that the Court of Appeal’s decision had quashed the inspector’s approval of the wind turbine. In fact, the Court of Appeal reinstated the inspector’s decision.

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