Enertrag (UK) Ltd v Secretary of State for Communities & Local Government & Ors

In a challenge under section 288 of the Town and Country Planning Act 1990, the court will not interfere with an inspector’s planning judgment unless the decision is outside the statutory powers or relevant requirements have not been complied with. An assessment of a listed building’s setting is a matter of fact and degree. It may overlap with landscape and visual-impact assessment and need not be confined to land immediately surrounding the building. The inspector must understand the statutory test, grapple with the principal controversial issues and give intelligible and adequate reasons. Reasons need not reproduce an agreed methodology or address every evidential detail. A rational conclusion supported by the evidence will not be disturbed.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision dismissing an appeal against refusal of permission for a six-turbine wind farm near Guestwick, Norfolk. An earlier decision had been quashed and a fresh inquiry was held.

The challenge alleged that the inspector misunderstood section 66(1) of the Town and Country Planning (Listed Buildings and Conservation Areas) Act 1990, gave inadequate reasons concerning Norwich International Airport’s operational efficiency, and lacked evidence or reasons for concluding that the scheme was unlikely to generate electricity by 2010.

1. Claim dismissed. All three grounds of challenge failed.
2. Section 66(1) of the Town and Country Planning (Listed Buildings and Conservation Areas) Act 1990 requires special regard to the desirability of preserving a listed building and its setting. The setting is not to be construed narrowly and is determined in each case as a matter of fact and degree. Landscape and setting may overlap, particularly where listed buildings are integral visual features of the wider landscape.
3. The inspector had correctly understood the statutory test. His decision letter distinguished, where appropriate, between landscape impact and the effect on listed buildings and their settings. He was not required to adopt the claimant’s detailed methodology or explain a departure from it because his approach was not materially different. The conclusions involved planning judgment, with which the court should not interfere.
4. Applying the principles restated in South Bucks District Council v Porter (No 2) [2004] UKHL @, reasons must be intelligible and adequate to explain the decision on the principal important controversial issues. The inspector’s reasoning on airport efficiency was rational. It was open to him, on the evidence, to find that possible diversion of flights could cause operational inefficiency while leaving safety unaffected.
5. It was also open to the inspector to find considerable doubt about electricity generation by 2010. The evidence concerning the likely two-and-a-half-year procurement period, supplementary consents and access works provided an evidential basis for that conclusion, notwithstanding disagreement about whether all access works required planning permission.
6. The statutory challenge could not be used to reopen the merits of the planning decision. The claim was dismissed.

The judgment records that an earlier inspector’s decision had been quashed following a legal challenge. A fresh inquiry was then held before the decision challenged in these proceedings. No citation for the earlier decision is stated.