Planners’ usual duty “to have regard to” required only specific consideration

East Northamptonshire District Council v Secretary of State for the Communities and Local Government [2014] concerned granting planning permission for development that affected a listed building or its setting. Here the planning inspector had the duty, under section 66 (1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the PLBCAA”), to “have special regard to” the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possessed. It was ruled there that the planning inspector had not complied with it.

In Howell v Secretary of State for the Communities and Local Government [2014] the claimant tried to quash a planning inspector’s grant of planning permission for a single wind turbine on farmland fringed by the Norfolk Broads.

Relying on the above case the claimant said the inspector had failed to comply with section 17A of the Norfolk and Suffolk Broads Act 1988 (“the NSBA”) which required the Secretary of State, and his representative the inspector, to “have regard to” the purposes of conserving and enhancing the natural beauty, wildlife and cultural heritage of the Broads in exercising or performing any functions relating to, or affecting land in the Broads.

The court distinguished the East Northamptonshire case.

There the words “have special regard to” in section 66(1) of the PLBCAA meant that considerable importance and weight had to be given to the desirability of preserving a heritage asset and its setting, when balancing the development proposals against other material considerations. It created a presumption against granting planning permission.

But in this case section 17A of the NSBA applied, and it imposed on the local planning authority or the inspector, a lesser duty to “have regard to”.

This meant only that the issue had to be specifically considered. I.e. not that it had to be given more weight than other issues.

So the court rejected the claimant’s application to quash the inspector’s decision.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.