Gerber, R (on the application of) v Wiltshire Council

Where proposed development affects the setting of a listed building or the character of a conservation area, the consultation trigger is the existence of an effect, not whether the effect causes significant or unacceptable harm. The local planning authority must obtain the statutory heritage consultee’s input and properly evaluate the effect before determining the application.

The duty under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires special regard to the desirability of preserving the building or its setting. An environmental impact assessment screening opinion must address whether the development is likely to have significant environmental effects and give clear reasons; reliance on later reports is not a substitute for applying that test. An unlawful planning permission will normally be quashed, subject to a fact-sensitive discretionary assessment.

The claimant challenged planning permission granted by Wiltshire Council for a 22.1-hectare solar farm near Broughton Gifford. His home, Gifford Hall, was a Grade II* listed building, but he had not been notified of the application and English Heritage had not been consulted. The development had been constructed before the challenge was issued.

The claim alleged failures to consult English Heritage, discharge the statutory duty concerning the setting of a listed building, comply with the council’s Statement of Community Involvement, and lawfully screen the proposal for environmental impact assessment. The court also had to decide whether delay and the completed development justified withholding relief.

1. Consultation concerning heritage assets. Regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 was engaged where the authority’s own material showed that the development would have an effect on the setting of listed buildings and the conservation area. Descriptions such as negligible, insignificant or not harmful assessed the quality of the effect; they did not establish that there was no effect. English Heritage therefore should have been consulted. The failure was a clear legal error (paras [37]–[46]).
2. Section 66 duty. The duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 was engaged. The authority had to evaluate properly the quality of the effect on Gifford Hall and its setting and give special regard to the desirability of preservation. The absence of any record that the duty had been considered, the failure to obtain English Heritage’s input, and the inadequate assessment by the conservation officer meant that the duty had not been demonstrated to have been discharged (paras [47]–[56]).
3. Legitimate expectation. The council’s Statement of Community Involvement created a legitimate expectation that persons affected by a development would be notified. The word “endeavour” did not make the commitment optional, and the undertaking was not confined to adjoining occupiers. The claimant’s failure to be notified breached that expectation (paras [57]–[62]).
4. Environmental impact assessment screening. Under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the authority had to decide whether the development was likely to have significant environmental effects and explain that conclusion clearly. The screening opinion instead relied on future reports to assess environmental issues. That was not an application of the statutory test, and the inadequate reasoning constituted a substantive error of law. The court could not assume that a fresh screening would produce the same result (paras [63]–[75]).
5. Delay and relief. The claimant’s ignorance of the permission, caused by the failure to notify him, provided a reasonable explanation for delay. Although the financial prejudice to the interested parties and the need for certainty in planning decisions carried significant weight, the serious failures concerning a nationally protected heritage asset and environmental assessment outweighed those considerations. Applying the normal approach to an unlawful planning permission, the permission was quashed rather than replaced by declaratory relief (paras [76]–[111]).

Not stated in the judgment. This was a first-instance judicial review in the Administrative Court.