Jones v Mordue & Anor

A planning decision affecting a listed building or its setting must give considerable importance and weight to the desirability of preservation. A reasons challenge remains subject to the ordinary planning-law test. The reasons must be read fairly and as a whole, and the challenger must show substantial prejudice or a substantial doubt of legal error.

Section 66(1) does not generally require an express statement that this weight was given. Such a statement may be necessary where the decision letter positively indicates that the duty was misunderstood or insufficient weight was given. In the absence of such an indication, reference to applicable heritage policy and guidance may support the inference that the decision-maker applied the duty correctly.

An Inspector granted planning permission for a single wind turbine. The proposal would cause less than substantial harm to the setting of a Grade II* church and negligible harm to other heritage assets. The Inspector concluded that the environmental benefits of renewable energy outweighed that harm.

The respondent successfully challenged the permission in the Planning Court under section 288 of the Town and Country Planning Act 1990. The deputy judge held that, although the Inspector may have given the requisite weight to heritage harm, the decision letter did not demonstrate compliance with section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990: [2015] EWHC 539 (Admin).

The appeal concerned whether section 66(1) imposed a special and more demanding requirement for reasons, and whether the Inspector lawfully departed from the development plan.

1. Appeal allowed. The court upheld the Inspector’s grant of planning permission and dismissed the respondent’s additional contention under section 38(6) of the Planning and Compulsory Purchase Act 2004.

2. Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires a decision-maker to give considerable importance and weight to the desirability of preserving a listed building and its setting when balancing heritage harm against development benefits. The Inspector was entitled to conclude that the less than substantial harm to the heritage assets was outweighed by the identified environmental benefits.

3. The deputy judge had read East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137 too broadly. That authority did not displace the ordinary approach to planning reasons in Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 and South Bucks District Council v Porter (No. 2) [2004] UKHL 33. A decision letter need not positively demonstrate compliance with section 66(1) in every case.

4. A positive reference to the statutory duty may be needed where the reasons themselves indicate that the decision-maker has downplayed heritage harm or applied the wrong balance. That was the contextual point in East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137. It did not reverse the claimant’s burden in an ordinary reasons challenge.

5. Read as a whole, the Inspector’s references to local listed-building policy and paragraph 134 of the NPPF gave no substantial reason to doubt that he had applied section 66(1) correctly. The decision letter lawfully identified environmental benefits as material considerations justifying departure from the development plan.

• Court of Appeal (Civil Division) — allowed the landowner’s appeal, upheld the Inspector’s planning permission, and dismissed the respondent’s contention under section 38(6) of the Planning and Compulsory Purchase Act 2004.
• High Court, Planning Court — quashed the planning permission under section 288 of the Town and Country Planning Act 1990 on the basis that the Inspector’s reasons had not demonstrated compliance with section 66(1): [2015] EWHC 539 (Admin) .