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13th April 2014

Weight to be given to heritage assets in considering planning applications

In a recent case, Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council and others, the Court of Appeal decided that a planning inspector’s approval of a wind turbine development should be overturned.

In a recent case, Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council and others, the Court of Appeal decided that a planning inspector’s approval of a wind turbine development should be overturned. It concluded that the inspector had not given sufficient weight to the development’s impact on nearby heritage sites. Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides that, when a local planning authority considers whether to grant planning permission for development that affects a listed building or its setting, it must have “special regard” to the desirability of preserving the building, its setting and any special architectural or historic features. The decision maker, however, also has a more general duty to have regard to all “material considerations” when deciding whether or not to grant planning permission. This means that deciding a planning application will generally involve balancing the various “pros” and “cons” of granting permission against one another. In this case the Court of Appeal considered whether the duty to have “special regard” required the decision maker to give heritage considerations great weight in this balancing exercise. The energy company sought planning permission for a wind farm near various heritage assets, including Lyveden New Bield, a Grade 1 listed National Trust property of particular cultural value. The LPA refused permission but the matter went to an inquiry and the planning inspector granted permission for four wind turbines. The LPA, the National Trust and English Heritage challenged the inspector’s decision, arguing, among other things, that the inspector had failed to have special regard to the desirability of preserving the settings of listed buildings. The High Court agreed and quashed the permission. Finally, the energy company appealed against the High Court’s decision and so we come to the Court of Appeal decision. The Court of Appeal agreed with the High Court and dismissed the appeal. They decided that decision makers should give “considerable importance and weight” to the desirability of preserving the setting of listed buildings and that the inspector had not done so. Lord Justice Sullivan’s reasoning provides useful guidance on the duty in section 66(1). 1. Assessing the degree of harm which a development could cause to the setting of a listed building is a matter for the inspector’s planning judgment. 2. However, if he does conclude that there will be harm, he must give it considerable importance and weight. 3. Therefore there is a strong presumption against granting planning permission for development which would harm the setting of listed buildings. The Judge indicated that the presumption would apply to all listed buildings but the strength of the presumption could vary, for example with the level of the heritage designation given to the building or the degree of harm. In this case, the inspector had found the effect on the setting of the heritage assets would not amount to substantial harm. The Judge was happy that he had been free to come to that conclusion but not so happy that he then appeared “to have treated the less than substantial harm to the setting of the listed buildings … as a less than substantial objection” to granting planning permission. The Judge drew attention to the contrast between the significant weight the inspector had expressly given to the renewable energy “pros” to the scheme and his approach to the section 66(1) duty. This is an important decision and will be relevant for any planning permission for land near heritage assets. It’s a lesson for developers and promoters that heritage considerations need handling with care. For more information, please contact Deborah Sharples on 01223 461155 or click here to email Deborah. For more information on our Planning services click here.

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