Williams, R (on the application of) v Powys County Council & Anor

A planning authority’s duty to consider the setting of a listed building arises from the building’s existence, but a mere shared view of a building and proposed development does not establish harm to its setting. The authority may rely on the planning material before it where that material reasonably supports a judgment that no issue arises.

For scheduled monuments, consultation is required only where development affects the monument or land necessary for its physical protection and preservation. Visual or amenity effects alone do not engage the consultation duty. An alleged error of fact in judicial review must concern an established fact capable of objective and uncontentious proof. Where an error is established, relief must be refused if it is highly likely that the outcome would not have been substantially different.

The claimant sought judicial review of Powys County Council’s grant of planning permission for a farm wind turbine. He alleged failures to consider the effect on a grade II* listed church, to consult CADW, and to consider the effect on additional scheduled ancient monuments.

The permission followed an earlier permission for a similar proposal, which had been quashed by consent after the Council accepted that it had not properly considered relevant policy and cumulative effects. The issues were whether the statutory duties had been engaged, whether the Council had made an error of fact, and whether relief would in any event be barred by the statutory no-difference test.

1. Ground 1 dismissed. The duty under Planning (Listed Buildings and Conservation Areas) Act 1990, section 66(1), required special regard to the desirability of preserving the listed church or its setting. The duty arose from the existence of the listed building, and silence could not invariably be relied upon. However, the Council had sufficient material to exercise its planning judgment. The evidence did not establish that the turbine would be visible from the church or that its setting would be adversely affected. A view encompassing both the church and turbine was insufficient. The claimant had to show that the turbine formed part of the church’s setting and caused harm.
2. Section 31(2A) alternative ground. If there had been an error in failing to undertake the section 66(1) process, relief would still have been refused under the Senior Courts Act 1981. It was clear that the decision would have been the same without the asserted error. The provision is directed retrospectively to what would have happened if the error had not occurred, rather than to the outcome of a future reconsideration.
3. Ground 2 dismissed. Article 14(1) and Schedule 4 of the Town and Country Planning (Development Management Procedures) (Wales) Order 2012 required consultation where development was likely to affect the site of a scheduled monument. That phrase, read with section 61 of the Ancient Monuments and Archaeological Areas Act 1979, concerned the monument and land necessary for its physical support and preservation. It did not extend to visual or amenity effects. Since the alleged effects were visual only, there was no duty to consult CADW.
4. Ground 3 dismissed. The Council had considered the effect on the nearest scheduled monuments and was entitled to conclude that more distant monuments were not a relevant additional factor. The alleged impact on their settings was a matter of judgment, not an established fact capable of objective and uncontentious proof. The requirements for an error of fact amounting to an error of law were therefore not met.
5. The claim was dismissed. The post-decision assessments did not demonstrate a legal error, and any possible errors would in any event have made no difference to the outcome.

The judgment describes an earlier permission for a similar turbine, which was quashed by consent after the Council accepted that it had failed properly to consider relevant policy and cumulative effects. The present claim was a first-instance judicial review of the later permission.