Anesco Limited v Secretary of State for Levelling Up, Housing and Communities & Anor

On a statutory review of a planning decision, the court will not substitute its own assessment of planning judgment, weight or factual matters unless there is irrationality, perversity or a clear error of law. A heritage assessment must distinguish the setting of an asset from harm to its significance, while recognising that a change to setting may affect significance. The decision-maker must identify the relevant heritage effects, apply the statutory and policy framework, and give intelligible reasons. An inspector’s report and decision letter may be read together where the decision-maker adopts the report, including when reaching a different planning balance. Previous planning decisions are material only where the cases are sufficiently comparable. A materially different development-plan position may justify different outcomes without detailed explanation.

Anesco Limited applied under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s refusal of its section 78 appeal concerning a temporary 49.72MW solar farm in Northamptonshire. The local planning authority had refused permission on landscape and visual grounds. An inspector recommended allowing the appeal, but the Minister, acting for the Secretary of State, refused it after considering effects on the Grand Union Canal Conservation Area and the Turnover Bridge.

The claimant alleged errors in the treatment of heritage setting and significance, failure to apply EN-1, EN-3 and GPA3, inadequate reasons, and inconsistency with a later decision concerning a solar development at Great Wymondley. The issues were whether the decision contained an error of law and whether the Great Wymondley decision required a reasoned departure.

1. Ground 1 dismissed. The Secretary of State had not conflated harm to the setting of a heritage asset with harm to its significance. The Inspector’s analysis, adopted in the Decision, applied the three-stage approach identified in Catesby Estates v Steer: identifying the setting, assessing its contribution to significance, and assessing the development’s effects.

2. A change to setting may harm the significance of a heritage asset even where the asset’s significance derives principally from historic and architectural value. The relevant question is the effect of the development on the asset through its setting, rather than harm to setting considered in the abstract. The Secretary of State was entitled to assess the harm to the Grand Union Canal Conservation Area and the Turnover Bridge as moderate and in the lower to middle range of less than substantial harm.

3. The reference to river valleys was contextual and did not show that the decision-maker misunderstood the site’s geographical location. In any event, the reference was too cursory to form part of the ratio of the Decision or to constitute a material consideration.

4. EN-1 and EN-3 were relevant considerations but were not binding or determinative because the development fell below the applicable threshold for a nationally significant infrastructure project. The Secretary of State had considered the temporary nature of the development, mitigation, renewable-energy benefits and other material considerations. The weight assigned to them was a planning judgment for him.

5. The Inspector’s Report and the Decision could be read together. The Secretary of State expressly adopted the Report except where he disagreed with it and explained those disagreements. The reasons were sufficiently clear and did not give rise to genuine doubt as to the legal approach taken.

6. Ground 2 refused permission. The Great Wymondley decision was not sufficiently comparable because, unlike the present proposal, it was not in conflict with the development plan. That was an important distinguishing feature. The Secretary of State therefore did not err in law by failing to address the different outcome in detail.

7. The statutory review application was dismissed.

The judgment concerned a first-instance statutory review of a ministerial planning decision under section 288 of the Town and Country Planning Act 1990. No appellate history was stated.