East Northamptonshire District Council & Ors v Secretary of State for Communities and Local Government & Anor

In determining planning applications affecting listed buildings, the decision-maker must give considerable importance and weight to the desirability of preserving the building or its setting under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. That duty goes beyond identifying harm and balancing it against benefits as though the factors had equal weight. The effect of development on a heritage asset’s setting must be assessed by reference to the asset’s significance, the contribution made by its setting, the effect on that setting, and the resulting effect on significance and its appreciation. A planning inspector must also give intelligible reasons on important controversial issues. Failure to perform those tasks lawfully may require the decision to be quashed and the appeal reconsidered.

East Northamptonshire District Council, English Heritage and the National Trust challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision granting permission for a four-turbine wind farm in Northamptonshire. The development affected the settings of several designated heritage assets, including Lyveden New Bield. The Secretary of State conceded that the decision should be quashed. The remaining dispute concerned whether the inspector had discharged the statutory duty concerning listed buildings, correctly applied heritage-setting policies, and adequately explained his conclusions, particularly on planned views from Lyveden New Bield.

1. The claim under section 288 of the Town and Country Planning Act 1990 succeeded. The inspector’s decision was quashed, and the appeal was to be reconsidered.

2. The statutory planning framework requires a decision to accord with the development plan unless material considerations indicate otherwise. Although the assessment and weighing of planning considerations are ordinarily matters for the decision-maker, section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires considerable importance and weight to be given to the desirability of preserving a listed building or its setting.

3. The section 66(1) duty is not satisfied by treating harm to a setting and the wider benefits of development as factors of equal importance. The statutory objective of preservation must receive special regard in the balancing exercise. The inspector erred by relying on renewable-energy policy as indicating that not all harm had to be avoided without giving proper effect to that duty.

4. The relevant heritage-setting policies required a wider assessment than whether a reasonable observer could distinguish a modern development from a historic asset. The decision-maker had to assess the significance of each asset, the contribution made by its setting to that significance, the effect of the proposal on the setting, and the effect on the asset’s significance and the ability to appreciate it. The inspector’s limited focus on whether observers would be confused or distracted meant that the magnitude of harm, and consequently the balancing exercise, might have been misstated.

5. The reasons were inadequate in relation to planned views from Lyveden New Bield. The inspector identified uncertainty about whether such views were intended, but later proceeded on the basis that the turbines would not intrude on an obviously intended planned view. That unresolved issue was important to the assessment of harm and created substantial doubt about the reasoning, contrary to rule 19(1) of the Rules.

6. It was not possible to predict that the same result would have followed had the statutory duty and policies been correctly applied. Relief was therefore not refused on the basis that the outcome was inevitable.