Williams, R (On the Application Of) v Powys County Council (Rev 1)

Under the former consultation regime, development was likely to affect the site of a scheduled monument only if it would physically affect the monument or land essential to its support and preservation. A visual effect on its setting did not trigger consultation with the Welsh Ministers.

The duty in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 is engaged where development may affect a listed building’s setting. Engagement depends on planning judgment and the particular circumstances. It requires a distinct visual relationship bearing on the experience of the building; proximity is relevant but not essential, while mere co-visibility is insufficient. Once engaged, the authority must determine the effect and give considerable importance and weight to preserving the setting.

A local resident challenged the grant of planning permission for a wind turbine near two scheduled monuments and a grade II* listed church. The Administrative Court dismissed the claim in [2016] EWHC 480 (Admin).

The appeal raised two questions. First, did development likely to have visual effects on the setting of a scheduled monument fall within the former requirement to consult the Welsh Ministers about development likely to affect the monument’s site? Secondly, did the council fail to perform its duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 concerning the setting of the listed church? If the second duty had been breached, the court also had to decide whether relief should be withheld because the outcome was highly likely to have been substantially the same.

1. Appeal allowed. The consultation ground failed, but the listed-building ground succeeded. The planning permission was quashed so that the council could determine the application afresh.
2. The former paragraph (k) of Schedule 4 to the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 did not require consultation merely because development was likely to affect a scheduled monument’s setting. In ordinary language, a monument’s site is distinct from the surroundings in which it is experienced. Sections 1(11) and 61 of the Ancient Monuments and Archaeological Areas Act 1979 reinforced that construction: the site comprised the monument and land essential to its physical support and preservation, not its wider setting. The subsequent amendment expressly creating visibility-based categories did not alter the meaning of the former provision.
3. Whether development affects a listed building’s setting for section 66(1) purposes depends on the particular facts and planning judgment. Relevant considerations commonly include the development’s nature, scale, siting, proximity and visual relationship to the building; the building’s architectural and historic characteristics; topography; and surrounding natural or man-made features. There must be a distinct visual relationship, more than remote or ephemeral, which bears on the experience of the listed building. Physical proximity is not invariably essential, while the mere possibility of seeing the development and building together does not establish an effect on setting.
4. The section 66(1) duty may arise although no consultee or objector has identified the issue. A developer’s own assessment acknowledging a possible change to setting may suffice. Here the application material acknowledged that the turbine could have a slight or minor effect on the listed church’s setting. The council therefore had to reach a distinct conclusion on whether there would be an effect, whether it would be harmful and, if so, to give considerable importance and weight to preserving the setting. Neither the officer’s report nor the committee’s consideration demonstrated that exercise. The decision was unlawful.
5. Relief was not withheld under section 31(2A) of the Senior Courts Act 1981. The omitted assessment involved factual, planning and aesthetic judgment entrusted to the local planning authority. The court could not conclude that substantially the same outcome was highly likely, despite later evidence supporting permission and the prejudice caused by quashing an implemented permission.

Irwin L.J. agreed with Lindblom L.J.

1. Court of Appeal (Civil Division): The appeal was allowed in [2017] EWCA Civ 427. The planning permission was quashed because the council had failed to discharge section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.
2. Administrative Court, Planning Court: A deputy judge of the High Court dismissed the judicial review claim in [2016] EWHC 480 (Admin).