Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council & Ors

When development would harm the setting of a listed building, section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires the decision-maker to give the desirability of preservation considerable importance and weight in the planning balance. The degree of harm remains a matter of planning judgment, but the statutory duty qualifies the ordinary discretion as to weight.

An assessment of harm to a designated heritage asset must address the contribution made by its setting to its significance. The ability of visitors to distinguish a modern development from the historic asset is relevant but cannot alone determine whether harm is substantial. The decision must also give intelligible reasons on material and contested issues.

A Planning Inspector granted permission for a four-turbine wind farm near Lyveden New Bield, a group of designated heritage assets including a Grade I listed building, Grade I registered park and garden, and scheduled ancient monument. The Inspector found clear but less than substantial harm to its setting and held that renewable-energy benefits outweighed that harm.

Lang J quashed the permission in [2013] EWHC 473 (Admin). The developer appealed, challenging her conclusions on the statutory duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, the application of PPS5, and the adequacy of the Inspector’s reasons.

The central issue was the weight required for harm to listed-building settings and the lawful method of assessing and explaining that harm.

1. Appeal dismissed. Sullivan LJ, with whom Rafferty LJ and the Vice-President agreed, upheld Lang J’s quashing order.
2. Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires more than careful consideration of harm to a listed building’s setting. In the balancing exercise, the decision-maker must give the desirability of preservation considerable importance and weight. The assessment of the degree of harm remains a planning judgment, but the weight required by Parliament is not left wholly to that judgment. This statutory requirement qualifies the general principle in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759.
3. The court followed the approach in The Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303. It also treated the statutory explanation in South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141 as persuasive. Less than substantial harm may reduce the strength of the presumption against permission, but it does not remove the statutory duty. The duty has particular force where the setting of a Grade I listed building would be harmed.
4. The Inspector had not properly applied PPS5. He failed to address the evidence that the undeveloped rural setting made a crucial contribution to Lyveden New Bield’s significance, including its designed relationship with the surrounding landscape and views. The ability of a reasonable observer to recognise that turbines were modern additions was only one relevant consideration. It could not, by itself, justify the conclusion that the harm was less than substantial. If it was not decisive, the decision letter gave no adequate reasons for its conclusion. Those errors infected the balancing exercise, independently of the failure to give the statutory duty the required weight.

• Court of Appeal (Civil Division): dismissed the developer’s appeal and upheld the quashing of the planning permission.
• High Court, Queen’s Bench Division, Administrative Court: Lang J quashed the Planning Inspector’s grant of permission: [2013] EWHC 473 (Admin).