North Norfolk District Council v Secretary of State for Communities and Local Government & Anor

Under section 38(6) of the Planning and Compulsory Purchase Act 2004, a development plan policy supporting renewable energy may still support a proposal where its conditional commitment to permission is not engaged because significant adverse effects exist. The decision-maker may balance that policy support against harm identified under other policies.

Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires considerable importance and weight, or high priority, to be given to the desirability of preserving a listed building or its setting. The exercise is not a simple balance between harm and benefit. The question is whether sufficiently strong public-interest considerations justify overriding the presumption in favour of preservation.

The Council challenged the Secretary of State’s inspector’s decision allowing an appeal against refusal of planning permission for a wind turbine at Pond Farm, Bodham. The Council relied on two grounds.

1. The inspector allegedly failed to apply section 38(6) of the Planning and Compulsory Purchase Act 2004 and the development plan policies.
2. The inspector allegedly failed to comply with section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 in assessing harm to the settings of listed buildings and other heritage assets.

The inspector had found landscape and heritage harm, but concluded that the renewable-energy benefits outweighed that harm. The central issue was whether his decision letter showed lawful application of the development plan and the statutory duty concerning listed-building settings.

1. Development plan. Policy EN7 was a general policy of support and consideration for renewable-energy proposals in the context of sustainable development, climate change and the benefits of renewable energy. Its second paragraph created a conditional commitment to grant permission where there were no significant adverse effects. The finding that the condition was not met did not remove the policy’s general support or prevent the benefits being balanced against landscape and heritage harm.
2. The inspector was entitled to conclude that the proposal accorded overall with the aims of the development plan, notwithstanding breaches of policies EN2 and EN8. Section 38(6) did not require every policy to point in the same direction. The decision letter, read as a whole, adequately explained the treatment of the policies, the cumulative effects on heritage assets and the planning balance. The development-plan ground failed.
3. Section 66(1). The duty to have special regard to the desirability of preserving listed buildings or their settings required considerable importance and weight, or high priority, to be given to preservation. Where development would harm a setting, the decision-maker had to ask whether sufficiently strong public-interest considerations justified overriding the presumption in favour of preservation. That differed from a straightforward balance of harm and benefit.
4. The NPPF guidance was consistent with section 66(1), but paragraph 134 could not be applied as a simple balancing exercise detached from the statutory presumption. No particular form of words or statutory citation was required, but compliance was a matter of substance.
5. Although the inspector had carefully assessed the heritage assets and identified less than substantial harm, his reasoning showed only a straightforward balance under paragraph 134. It did not demonstrate special regard to the desirability of preservation. The court could not say that he would inevitably have reached the same result had he applied section 66(1). The decision was therefore quashed.

Not stated in the judgment.