Palmer v Herefordshire Council & Anor

Where mitigation enables a planning authority rationally to conclude that development will cause no overall adverse effect on the setting of a listed building, the authority need not undertake a balancing exercise on the basis that harm has been found. Under section 66(1), however, any assessed harm to a listed building or its setting must receive considerable importance and weight. Its weight depends on the scale of harm and the significance of the heritage asset.

In judicial review, planning officers’ reports are read fairly and as a whole. A challenger must show substantial doubt that the authority failed to discharge its statutory duty. The report need not identify every possible aspect of impact separately where its overall reasoning shows that the issue was considered.

Herefordshire Council granted planning permission for four poultry broiler units near Flag Station, a Grade II listed former railway station. Mr Palmer, who lived nearby, challenged the permission. He contended that the Council had failed to give proper effect to section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, particularly in relation to noise and odour affecting the setting of Flag Station.

HHJ David Cooke rejected the claim in the Planning Court: [2015] EWHC 2688 (Admin). Permission to appeal was granted only on the section 66(1) ground. Before the Court of Appeal, Mr Palmer also sought to add a late ground alleging failure to notify English Heritage under regulation 5A of the 1980 Regulations.

1. Appeal dismissed. The Council’s officers and planning committee were entitled to conclude that, with the proposed mitigation, the development would cause no adverse effect on Flag Station or its setting.

2. Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires special regard to the desirability of preserving a listed building or its setting. This gives considerable importance and weight to any harm found. It does not require refusal whenever there is slight harm. The decision-maker must assess the nature and degree of harm, including the extent to which harm to setting affects the reasons for listing, and balance it against development benefits. The weight of avoiding harm varies with both the harm and the heritage asset’s significance.

3. The evidence did not show that the Council had treated visual impact as the only relevant impact. The specialist and planning officers considered noise and smell, as well as visual effects, in assessing the agricultural setting and the proposed mitigation. The reports’ conclusion that the development complied with the policy prohibiting adverse effects on the setting of listed buildings entailed a conclusion of no overall adverse effect. Accordingly, section 66(1) was either not engaged by harm or was adequately complied with through that policy assessment.

4. The court applied the established approach to reasons challenges. Officers’ reports must be read without an unduly demanding standard and in their planning context. The challenger had not raised substantial, rather than merely forensic, doubt that the committee had misunderstood or ignored a material issue.

5. Permission to introduce the late notification ground was refused. The reports identified the statutory consultees, so the alleged omission should have been apparent earlier. The proposed ground was out of time under CPR Part 54.5, fell outside the permission granted by the Planning Court, and deprived the Council of the opportunity to establish whether Historic England had any objection.

• Court of Appeal (Civil Division): Dismissed Mr Palmer’s appeal and refused permission to advance a new consultation ground: [2016] EWCA Civ 1061.
• High Court, Queen’s Bench Division, Administrative Court, Planning Court: HHJ David Cooke rejected all grounds challenging the grant of planning permission, but granted permission to appeal on the section 66(1) issue: [2015] EWHC 2688 (Admin).