Pugh v Secretary of State for Communities and Local Government & Ors

When assessing harm to a designated heritage asset, a decision-maker must follow the sequential approach in paragraphs 132–134 of the National Planning Policy Framework. The significance and value of the asset must inform the assessment of harm and must carry weight in the final balance. Where harm is less than substantial, paragraph 134 requires that harm to be weighed against the public benefits; it does not require a different or more stringent final test. The decision-maker must interpret planning policies objectively and in context, while retaining judgment in applying them to the facts. A challenge based on failure to consider a material matter will fail where the court is satisfied that the decision would necessarily have been the same.

The claimant challenged an Inspector’s decision allowing an appeal against Cornwall Council’s refusal of planning permission for a 75-metre wind turbine at Bocaddon Farm, Cornwall. The challenge concerned the turbine’s effect on the settings of Scheduled Ancient Monuments and Listed Buildings.

The claimant alleged failures to consider the settings of Bake Rings, Trevawden and Pelyne Farm, misinterpretation of local wind-energy policies REN1 and REN2, and failure to apply the heritage-asset provisions of the National Planning Policy Framework. The central issues were whether the Inspector had considered the material heritage evidence and whether he had applied the correct policy and balancing approach.

1. The claim was dismissed. The Inspector was entitled to form his own view of the evidence and to adopt the original Environmental Report’s assessment of the Listed Buildings. The Addendum assessment had been before him, and the decision letter showed that he had considered the relevant heritage issues. Any omission to address the Bake Rings SAM expressly could not have affected the outcome, since the potential impact was of low magnitude and slight adverse effect.
2. The statutory decision-making framework required regard to the development plan and material considerations under section 70(1) of the Town and Country Planning Act 1990, determination in accordance with the development plan unless material considerations indicated otherwise under section 38(6) of the Planning and Compulsory Purchase Act 2004, and proper, intelligible and adequate reasons. A failure to consider a material matter would not justify quashing where the result would necessarily have been the same.
3. Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 required special regard to the desirability of preserving a Listed Building or its setting. The Inspector’s assessment differed materially from the situation in Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council, where relevant matters had not been properly assessed.
4. Policy REN2 contained an inherent drafting conflict if read literally. The phrase concerning “no adverse impact” could not sensibly impose a stricter test outside a designated area than the “unacceptable impact” test applicable to development within or affecting designated areas. The policy therefore required flexible, contextual interpretation and a balance of relevant considerations.
5. The heritage provisions of the NPPF required a sequential approach. The decision-maker must first assess the asset’s value, significance and the degree of harm. If the harm is less than substantial, paragraph 134 requires that harm to be weighed against the public benefits. The significance of the asset remains important in that balance, but paragraph 134 does not require a different final test. The Inspector had followed that approach and had given proper weight to the significance of the two SAMs.
6. The Inspector was entitled to attach considerable weight to the renewable-energy and climate-change benefits. His reasons, read as a whole, supplied a clear and convincing justification for granting permission and adequately explained the planning balance. The agreed order dismissed the claim and required the claimant to pay the defendant’s costs of £8,139.