Mordue v Secretary of State for Communities And Local Government & Ors

When determining a planning application affecting a listed building or its setting, the decision-maker must give special regard to preservation and considerable weight to any harm identified. The National Planning Policy Framework guidance on great weight and less than substantial harm can satisfy that statutory duty when read together, but applying paragraph 134 alone does not demonstrate that the required weight was given. Reasons must show that considerable weight was given to harm, and failure to provide that demonstration may substantially prejudice the applicant and justify quashing the decision. A decision-maker need not identify the weight assigned to every planning consideration or address every limb of every policy, provided the principal controversial issues and the basis of the decision are intelligible.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an Inspector’s decision granting permission for a wind turbine and associated development. The Inspector found conflict with saved local-plan policies because of landscape and heritage harm, but concluded that the environmental benefits of renewable energy outweighed that harm and justified departing from the development plan.

The claimant alleged failures to apply section 38(6) of the Planning and Compulsory Purchase Act 2004, section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, and the duty to give adequate reasons.

1. Grounds 1 and 3 failed. The Inspector had regard to the statutory presumption in section 38(6) of the Planning and Compulsory Purchase Act 2004. There is no prescribed order in which reasons must address the development plan and material considerations. The court’s function is to ensure that the statutory presumption and relevant considerations were addressed, not to reassess the weight given to them. The Inspector was not required to identify the precise limb of each policy engaged or specify the weight assigned to every conflict and consideration, since the principal issues and the basis of the decision were clear.
2. Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires the decision-maker to start from the desirability of preserving listed buildings and their settings. Any harm must receive at least considerable weight as a matter of law. The duty operates within the same planning exercise as section 38(6).
3. Paragraphs 132 and 134 of the National Planning Policy Framework must be read together. Where harm is less than substantial, it must be weighed against public benefits, while the requirement to give great weight to conservation and clear and convincing justification remains. Following that combined guidance can satisfy section 66(1). Applying paragraph 134 alone does not, of itself, demonstrate that considerable weight was given to the harm.
4. The Inspector’s reasons did not demonstrate that considerable weight had been given to the harm to the setting of each affected listed building. In light of the approach required by East Northamptonshire District Council v Secretary of State for Communities and Local Government, that omission was sufficient to establish substantial prejudice. The court recognised the tension with the ordinary presumption of regularity and the general principles governing reasons, but considered itself bound by the Court of Appeal’s approach.
5. The application therefore succeeded on Grounds 2 and 4. The Inspector’s decision was quashed.