Factual and Procedural Background
The Appellant challenged the decision of the local planning authority, Company A, to grant planning permission for the erection of a wind turbine on the farm of the Interested Party at a rural site in The State. The turbine was erected following the grant of planning permission in May 2015. The Appellant, a local resident who had objected to the proposal, issued a claim for judicial review which was dismissed in the court below. Permission to appeal was granted. The site is near several heritage assets, including two scheduled monuments and a grade II* listed church, raising concerns about the effects of the development on their settings.
Legal Issues Presented
- Whether the local planning authority erred by failing to consult the Welsh Ministers regarding the likely effects of the wind turbine development on the settings of two scheduled monuments.
- Whether the local planning authority erred in failing to consider the likely effects on the setting of a grade II* listed church, specifically regarding its duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.
Arguments of the Parties
Appellant's Arguments
- The consultation requirement under the Development Management Procedure Order 2012 should include development likely to affect the setting of scheduled monuments, not just their sites.
- The statutory provisions and planning policy emphasize the importance of preserving both scheduled monuments and their settings.
- The local planning authority failed to perform the statutory duty under section 66(1) to have special regard to preserving the setting of the listed church.
- The absence of consultation with the Welsh Ministers and failure to consider the setting of the listed building amounted to errors of law.
Respondent's Arguments
- The local planning authority correctly interpreted the Development Management Procedure Order 2012 as requiring consultation only where development is likely to affect the site, not the setting, of a scheduled monument.
- National policy and statutory definitions support a narrow interpretation focusing on physical impact rather than visual or setting effects.
- The Planning, Design & Access Statement and consultee responses indicated only minor or negligible effects on heritage assets.
- Even if the duty under section 66(1) was engaged, the decision would likely have been the same, and the failure to explicitly address it did not invalidate the planning permission.
- Quashing the permission would cause substantial prejudice to the Interested Party who had already erected the turbine.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R. (on the application of Plant) v Pembrokeshire County Council [2014] EWHC 1040 (Admin) |
Preservation of ancient monuments and their settings as material considerations in planning decisions. |
Referenced to support the principle that settings of scheduled monuments are relevant in planning considerations but distinguished from the statutory consultation requirement. |
| East Northamptonshire District Council v Secretary of State for Communities and Local Government [2015] 1 WLR 45 |
The duty under section 66(1) of the Listed Buildings Act requires giving considerable importance and weight to preserving the setting of listed buildings. |
Applied to assess whether the local planning authority properly performed its statutory duty regarding the listed church's setting. |
| Mordue v Secretary of State for Communities and Local Government [2015] EWCA Civ 1243 |
Clarification of the nature and application of the section 66(1) duty in planning decisions. |
Used to frame the analysis of the duty and its application to the facts of the case. |
| R. (on the application of Miller) v North Yorkshire County Council [2009] EWHC 2172 (Admin) |
Definition and assessment of the "setting" of a monument in planning contexts. |
Cited for the proposition that the setting must be considered "in-the-round" and requires visual relationship analysis. |
| R. (on the application of Carlton-Conway) v Harrow London Borough Council [2002] EWCA Civ 927 |
Caution against reliance on assessments produced after judicial review proceedings commence. |
Referenced to caution the court regarding post-decision assessments of impact on heritage assets. |
| R. (on the application of Champion) v North Norfolk District Council [2015] 1 WLR 3710 |
Discretionary considerations in granting relief following a finding of legal error. |
Considered in submissions on whether to withhold remedy despite errors found. |
| R. (on the application of Gerber) v Wiltshire County Council [2016] 1 WLR 2593 |
Discretion in judicial review relating to planning decisions. |
Used to support arguments on discretion and likelihood of different outcomes on re-determination. |
| R. (on the application of Holder) v Gedling Borough Council [2014] EWCA Civ 599 |
Prejudice considerations where unlawful planning permission has been implemented. |
Referenced in arguments regarding prejudice to the Interested Party from quashing permission. |
| R. v South Herefordshire District Council, ex parte Felton [1989] 3 P.L.R. 81 |
Assessment of impact on setting of listed buildings as a matter of planning judgment. |
Referenced in discussion on the variability of circumstances engaging section 66(1) duty. |
| R. v Bolsover District Council, ex parte Paterson [2001] JPL 211 |
Judicial review principles in planning decisions affecting heritage assets. |
Referenced in context of evaluating planning authority’s assessment of setting impacts. |
| Ryan v Secretary of State [2001] EWHC Admin 722 |
Standards for judicial review of planning decisions. |
Referenced for principles on review of planning judgments. |
| British Telecommunications Plc v Gloucester City Council [2002] JPL 993 |
Consideration of setting impacts in planning decisions. |
Referenced in analysis of when section 66(1) duty is engaged. |
| R. (on the application of Carnegie, on behalf of the Oaks Action Group) v Ealing London Borough Council [2014] EWHC 3807 (Admin) |
Requirement to provide advice to planning committee on section 66(1) duty. |
Referenced to contrast the absence of such advice in the present case. |
Court's Reasoning and Analysis
The court first considered whether the local planning authority was obliged to consult the Welsh Ministers under the Development Management Procedure Order 2012 regarding impacts on the setting of scheduled monuments. The court accepted the lower judge’s interpretation that the statutory duty to consult applies only to development likely to affect the "site" of a scheduled monument in the sense of land essential for its physical preservation, not to visual or setting impacts. The court emphasized the distinction between "site" and "setting" in statutory definitions and planning policy, noting that the latter is a broader concept relating to the surroundings and visual context.
The court rejected the appellant's argument that the consultation requirement should be extended to cover impacts on the setting, reasoning that the statutory language was clear and unambiguous and that any such extension would have been explicitly stated if intended. The court also found that the amended provisions of the Development Management Procedure Order 2012, which introduced specific criteria for consultation based on visibility and proximity, did not contradict this interpretation.
Turning to the duty under section 66(1) of the Listed Buildings Act 1990, the court acknowledged the well-established principle that decision-makers must give considerable importance and weight to preserving the setting of listed buildings. The court analyzed the facts, noting that the Planning, Design & Access Statement acknowledged potential effects on the setting of the grade II* listed church, and that the local planning authority failed to explicitly consider or address this duty in its officer reports or committee deliberations.
The court found that the absence of explicit consideration of the section 66(1) duty was a legal error because the duty was engaged given the circumstances. The court emphasized that while the ultimate planning judgment on harm and balancing of considerations is for the local planning authority, the duty to consider and give special regard to the setting must nonetheless be performed and evidenced in the decision-making process.
The court also considered submissions on discretion regarding whether to quash the planning permission. It rejected arguments that the decision should stand despite the error, noting the statutory duty’s importance and the lack of clear evidence that the outcome would be the same. The court acknowledged the prejudice to the Interested Party but held that the interests of lawful decision-making prevail.
Holding and Implications
The court ALLOWED the appeal.
The planning permission granted by the local planning authority was quashed due to the failure to perform the statutory duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 to have special regard to preserving the setting of the grade II* listed church. The court confirmed that there was no legal requirement to consult the Welsh Ministers regarding the visual or setting impacts on scheduled monuments under the Development Management Procedure Order 2012 as it stood at the time of the decision.
The case was remitted to the local planning authority for re-determination of the application, with a direction to properly consider and apply the section 66(1) duty. The court noted that the outcome on re-determination may be the same but stressed the necessity of a lawful decision-making process. No new precedent was established beyond the application of existing statutory interpretation and planning law principles.