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Palmer v Herefordshire Council & Anor
Factual and Procedural Background
On 15 December 2014, The Council, acting as the local planning authority, granted planning permission for the erection of four poultry broiler units and associated infrastructure at a site referred to as Flag Station, The City. The Appellant, a nearby resident with a holiday lettings business, challenged the grant on several grounds. The initial challenge was rejected by HH Judge Cooke on 22 September 2015, who granted permission to appeal on one ground only: that The Council had failed to comply with its statutory duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.
The proposed development consisted of four large sheds, each approximately 95m long, 25m wide, and 6m high, with adjacent feed silos, designed to accommodate 45,000 broiler chickens at any one time. Flag Station, a Grade II listed building and disused railway station built circa 1863, lies approximately 50 metres from the proposed units and is owned by the developer, forming part of the same agricultural unit.
The Appellant contended that The Council failed to give appropriate weight to the desirability of preserving the setting of the listed building, particularly neglecting non-visual harms such as noise and smell associated with the broiler units and manure spreading.
Legal Issues Presented
- Whether The Council complied with its statutory duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 to have special regard to the desirability of preserving the listed building or its setting.
- Whether The Council appropriately considered non-visual harm (noise and smell) to the setting of the listed building in its planning decision.
- Whether a procedural error occurred due to The Council's failure to notify the statutory consultee, English Heritage (now Historic England), as required by regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1980.
Arguments of the Parties
Appellant's Arguments
- The Council failed to demonstrate that it gave appropriate weight to preserving the setting of the listed building, particularly regarding non-visual harm such as noise and odour.
- The Council did not properly consider the effect of odour within the context of its statutory duty under section 66(1), resulting in a flawed balancing exercise.
- The Council failed to consider the significance of the listed building and the reasons for its designation, contrary to paragraph 129 of the National Planning Policy Framework (NPPF).
- The Council failed to notify English Heritage as a statutory consultee, constituting a procedural error.
The Council's Arguments
- Special regard was given to preserving the listed building and its setting, supported by professional advice from internal consultees and reflected in the planning officer’s reports.
- Mitigation measures were proposed and accepted to avoid adverse effects, including noise and odour impacts, consistent with policies HBA4 and LA4 of the development plan and section 12 of the NPPF.
- The planning committee considered all relevant issues, including noise and odour, with expert input confirming that any impacts would be acceptable.
- The failure to notify English Heritage was apparent from the record and should have been raised earlier; the late challenge is out of time and was not permitted by the Planning Court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| The Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303 | Desirability of preserving listed buildings or their settings must be given considerable importance and weight. | Established the standard of "special regard" under section 66(1) as requiring considerable weight to preservation. |
| South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141 | "Preserving" means "doing no harm" to the listed building or its setting. | Clarified that harm includes non-visual factors and must be given substantial weight. |
| East Northamptonshire DC v Secretary of State for Communities and Local Government [2014] EWCA Civ 137; [2015] 1 WLR 45 | Decision makers must give considerable weight to harm to listed buildings or settings; harm can be visual or non-visual. | Supported the principle that the degree of harm and heritage value influence the weight given. |
| R (Forge Field Society) v Sevenoaks DC [2014] EWHC 1895 (Admin); [2015] JPL 22 | Weight given to preservation depends on the extent of harm and importance of the heritage asset. | Confirmed that the decision maker’s judgment on harm and weight is context-dependent. |
| Jones v Mordue [2015] EWCA Civ 1243; [2016] 1 WLR 2682 | Challenger must show substantial doubt about compliance with section 66(1); inference of compliance if statutory duty and relevant policies are referenced. | Guided the court’s approach to reviewing compliance with statutory duty and officer reports. |
| R (Fabre) v Mendip DC (2000) 80 P&CR 500 | Inference that planning committee accepts officer’s report reasoning absent contrary evidence. | Applied to infer that the committee relied on specialist advice and officer recommendations. |
| R (Zurich Assurance Ltd) v North Lincolnshire Council [2012] EWHC 3708 | Reports addressed to knowledgeable committee members; no need for detailed assessment of every aspect if overall reasoning is clear. | Supported the court’s approach to officer reports and the sufficiency of their reasoning. |
| R (Morge) v Hampshire County Council [2011] UKSC 2; [2011] 1 WLR 268 | Standards for officer reports; addressed to informed committee members with local knowledge. | Reinforced the reasonableness of officer reports and committee understanding. |
| Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) | Judicial review based on officer reports requires showing of significant misleading effect on committee. | Used to assess whether deficiencies in reports misled decision makers. |
| South Bucks DC v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 | Test for whether reasoning gives rise to substantial doubt about legality of decision. | Applied to evaluate the adequacy of the decision-making process and reasoning. |
| R (Loader) v Rother DC [2016] EWCA Civ 795 | Procedural error in failure to notify statutory consultee may not justify quashing permission if no objection from consultee. | Referenced regarding the late procedural challenge and its consequences. |
Court's Reasoning and Analysis
The court carefully examined whether The Council complied with its statutory duty under section 66(1) to give special regard to preserving the listed building and its setting. Specialist officers’ reports, including those from a landscape consultant and a senior buildings conservation officer, identified potential effects on the setting but concluded that with effective mitigation, no adverse effects would arise. These reports addressed both visual and non-visual impacts such as noise and odour.
The planning officer's reports to the committee consistently recorded that the proposed development met the requirements of relevant policies (HBA4 and LA4) and section 12 of the NPPF, which require great weight to be given to heritage conservation. The committee received expert advice confirming that noise and odour levels would be acceptable, and the setting of the listed building would not be detrimentally affected given the mitigation measures.
The court acknowledged that the statutory duty does not require detailed mention of every potential impact in reports, provided the overall reasoning enables understanding of the decision. The absence of explicit references to odour in the statutory duty context was not indicative of disregard, as noise and odour were considered material and mitigated. The court rejected the Appellant’s argument that the Council failed to consider the significance of the listed building, finding that the building’s context as part of an agricultural unit was appropriately considered.
The court also addressed the procedural challenge regarding failure to notify English Heritage. It found that this ground was raised late, was out of time, and had not been permitted by the Planning Court. The absence of notification did not justify quashing the permission, particularly as the Appellant had the opportunity to raise this earlier and The Council was deprived of the chance to consult Historic England.
Holding and Implications
The court DISMISSED the appeal and refused permission to advance the new procedural ground. The decision confirms that compliance with section 66(1) involves giving considerable weight to preserving listed buildings and their settings, but this does not mandate refusal of planning permission for any harm, however slight. The decision underscores the importance of mitigation measures and the reasoned judgment of planning authorities in balancing heritage conservation with development proposals.
The ruling has no broader implications beyond the direct effect on the parties and does not establish new legal precedent. It affirms established principles on statutory duties in planning decisions concerning listed buildings and the procedural requirements for notification of statutory consultees.
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