North Cote Farms Ltd v Secretary of State for Communities and Local Government & Anor

A planning decision-maker may take account of the effect of development on the setting and planned views of a heritage asset even where the asset is inaccessible and its windows are blocked. Those circumstances affect the weight or degree of harm, rather than making the views irrelevant. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, a decision-maker should ordinarily determine whether a proposal accords with the development plan. An express finding is unnecessary in an exceptional case where the plan is historic, inconsistent with more recent policy, and the parties invite the decision-maker to give it minimal weight. A failure to make the finding will not justify quashing where it could not have affected the outcome.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an Inspector’s decision refusing permission for a 75-metre wind turbine. The Inspector found that the turbine would cause less than substantial harm to the setting and significance of Carnaby Temple, a Grade II listed folly, and that the renewable-energy benefits did not outweigh that harm.

The claimant argued that the Inspector had unlawfully considered hypothetical views from the Temple despite its bricked-up windows and inaccessibility, and had failed to determine the proposal’s conformity with the development plan under section 38(6) of the Planning and Compulsory Purchase Act 2004.

1. Ground 1 dismissed. The Inspector was entitled to consider the planned views from Carnaby Temple. The fact that the windows were bricked up and the building was inaccessible was relevant to the degree of harm, but did not make those views irrelevant. The setting of a heritage asset may contribute to its significance independently of public access, and circumstances may change. The Inspector was not required to quantify separately the harm attributable to those views.
2. The Inspector’s assessment of the significance and setting of the Temple, the degree of harm, and the balance between that harm and the renewable-energy benefits were matters of planning judgment. The decision was not irrational or perverse.
3. Ground 2 dismissed. The general rule under section 38(6) is that the decision-maker must identify the relevant development-plan policies, interpret them, decide whether the proposal accords with the plan, and then consider whether other material considerations justify departing from the plan. An exceptional case may arise where the development plan is historic and its policies have been overtaken by more recent policy statements, so that it is possible to comply with section 38(6) without an express conformity finding.
4. This was such an exceptional case. Both parties treated the adopted plan as historic and inconsistent with the National Planning Policy Framework, invited reliance on draft policy EC5, and invited the Inspector to give the adopted plan minimal weight. Had conformity been expressly considered, the proposal would inevitably have breached policies EN2 and EN20 because the identified harm was inconsistent with safeguarding the Temple and retaining its setting and curtilage. The omission therefore made no difference to the result.
5. The application was dismissed.

First-instance application under section 288 of the Town and Country Planning Act 1990. The application to quash the Inspector’s decision was dismissed.