Palmer v Herefordshire Council & Anor

A planning authority must give considerable importance and weight to preserving a listed building and its setting. Preservation means avoiding harm, which may include noise and smell. The weight required varies with the degree of harm and the importance of the heritage asset. Positive and negative effects may be assessed together when determining whether there is any overall adverse effect.

Compliance with the statutory duty is assessed through the ordinary approach to planning reasons. Officer reports must be read fairly and in context. References to the duty and relevant policies support an inference of compliance, absent contrary evidence. Officers need not separately address every potential effect. The challenger must establish substantial doubt about lawful compliance.

Herefordshire Council granted a developer planning permission for four poultry broiler units and associated infrastructure. About 50 metres away stood Flag Station, a Grade II listed former railway station controlled by the developer and forming part of the same agricultural unit. David Palmer, who lived nearby and operated a holiday lettings business, challenged the permission.

HH Judge David Cooke rejected the challenge in [2015] EWHC 2688 (Admin). He granted permission to appeal solely on compliance with section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. The principal questions were whether the Council had properly weighted preservation of the listed building’s setting and considered non-visual effects, particularly noise and odour. Palmer also sought permission to introduce a new ground alleging failure to notify English Heritage under regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1980.

The appeal was dismissed unanimously, and permission to advance the additional ground was refused. Lewison LJ delivered the substantive judgment, with which Hamblen and Moore-Bick LJJ agreed.

1. Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 required considerable importance and weight to be given to preserving a listed building and its setting. Preservation meant avoiding harm. Harm could arise through noise and smell as well as visual intrusion. Its assessment was a matter of planning judgment, but identified harm could not simply receive whatever weight the authority chose. The required weight varied with the degree of harm and the heritage asset’s importance. Slight harm did not necessarily outweigh substantial benefits (paras [5], [34]).

2. The statutory duty did not change the ordinary approach to examining planning reasons. The challenger had to establish substantial doubt about compliance. References to the duty, relevant National Planning Policy Framework provisions and development-plan policies supported an inference of compliance, absent contrary evidence: Jones v Mordue [2015] EWCA Civ 1243. Officer reports were addressed to knowledgeable committee members and required a fair reading. Their overall effect normally had to significantly mislead the committee about material matters left uncorrected before the decision. Reasons had to explain the decision and conclusions on the principal controversial issues (paras [7]–[8]).

3. The specialist advice and officer reports concluded that mitigation would avoid adverse effects on Flag Station’s setting. A decision maker could assess positive and negative effects together and find no overall adverse effect. Compliance with policy HBA4, which prohibited development adversely affecting a listed building’s setting, entailed that conclusion. Either section 66(1) was not engaged or, if engaged, the policy itself provided sufficient compliance. The express reference to section 12 of the National Planning Policy Framework further supported compliance (paras [29]–[30]).

4. Non-visual effects had been considered. The landscape advice addressed noise and smell, and policy HBA4 covered uses and operations. Officers were not required to identify every potential effect separately or undertake a structured assessment of each. The committee’s discussion confirmed consideration of noise and odour. The listed building’s agricultural setting was relevant to acceptable agricultural uses; the officer’s reference to control did not remove its listed protection (paras [32]–[35]).

5. The complaint about assessment of the building’s particular significance under paragraph 129 of the National Planning Policy Framework established no error on these facts. The specialist officers had concluded that the development would cause no adverse effects. A perversity challenge was outside both the pleaded grounds and permission to appeal (paras [31], [36]–[37]).

6. The alleged omission of English Heritage was apparent from the consultation lists. Earlier pleading would have allowed the Council to investigate whether that body objected. An absence of objection could justify refusing to quash despite procedural error: R (Loader) v Rother DC [2016] EWCA Civ 795. The proposed ground was also out of time under CPR Part 54.5 and lacked permission below. Permission to advance it was refused, and the appeal dismissed (paras [39]–[40]).

• Court of Appeal (Civil Division): In [2016] EWCA Civ 1061 , unanimously dismissed the appeal and refused permission to introduce the additional notification ground.
• High Court, Administrative Court, Planning Court: HH Judge David Cooke rejected all grounds challenging the planning permission in [2015] EWHC 2688 (Admin) , dated 22 September 2015. Permission to appeal was granted solely on compliance with section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.