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01st December 2016

Court of Appeal Rules on Heritage Impact for Hewitsons’ Client

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Hewitsons recently acted for the farmer in relation to the Court of Appeal case of Palmer v Herefordshire Council and Anr [2016] EWCA Civ 1061.

The case concerned the potential impact of a new poultry unit on the setting of a listed building in Herefordshire. The listed building was a former railway station built in 1863, which is grade II listed. The proposed development was for a 45,000 bird broiler unit in four sheds.

A neighbour complained (amongst other things) that the Council had not given enough weight to the desirability of preserving the setting of the listed building and had not considered the non visual harm to the setting from noise and smell. In considering this issue the Court set out a clear and useful summary of the law in relation to the duty of decision makers when considering possible harm to heritage assets. It also made clear that it is for those who allege that the decision maker has not complied with a duty to demonstrate at least a substantial doubt that it has. It said that where the relevant tests are mentioned as part of the decision making process, there is an inference they have been complied with.

It has been established by case law that the more important the heritage asset, the more weight must be given to its conservation. It is also accepted that settings can be harmed by impacts other than visual ones.

In this case the Court found that the Council had been satisfied that mitigation would avoid harm to the setting of Flag Station and that non visual impacts had been considered in reaching this conclusion.

The Court stated that where a proposed development would affect a listed building or its setting in different ways, some positive and some negative, the decision maker may legitimately conclude that although each of the effects has an impact, taken together there is no overall adverse effect on the listed building or its setting.

The Case confirmed that it is appropriate to consider both the quality of the listed building and the degree of harm. It said that the duty to have special regard to the desirability of not harming the setting of a listed building cannot mean that any harm, however minor, would necessarily require the refusal of planning permission. The Court accepted that it was right for the existing agricultural nature of the setting to be taken into consideration.

Permission was denied to add, at a late stage, the additional ground that the Council had failed to properly notify English Heritage of the application. This was because the appellant could have known earlier that this had not been done and also because, if raised earlier, it could have been asked whether English Heritage objected and if not, that would have been a good reason not to quash the decision in spite of a procedural irregularity. This opportunity was denied to the Council by the late challenge.

This is another example of a reassuringly robust approach taken in a line of cases to challenges to planning decisions, indicating a continued move of the Courts away from entertaining a nit picking approach to the scrutiny of decision making.

For more information please contact Deborah Sharples on 01223 532754 or click here to email Deborah.