A planning decision maker must attach proper weight to the local development plan as required by Section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) and must give adequate reasons for departing from it (the Section 38(6) Requirement); and
Where the development might affect a listed building Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the LBA 1990”) requires the decision maker to have special regard to the desirability of preserving the setting of listed buildings (the Listed Building Setting Requirement).
As the following case illustrates there can be problems if the decision maker’s written decision does not make it explicit both factors have been taken into account.
In North Norfolk District Council v Secretary of State for Communities and Local Government & Anor  a wind turbine was to be put up on Cromer Ridge. Some listed buildings were nearby.
The Section 38(6) Requirement
The court said the construction of the development plan policy was a matter of law for the court. The policy supported sustainable development and anti climate change. However, that was supplemented by policy EN7 – that there be neither individually or cumulatively, significant adverse effects, including landscape and historical features or areas.
Here the inspector had concluded that there would be significant effects on landscape and historical assets so that the commitment to grant permission was not engaged. But that did not mean that the policy ceased to support and to require consideration of the proposal’s renewable energy gain. Though those benefits had to be balanced against other considerations, including other policies within the plan. The inspector here had applied the policy in accordance with Section 38(6) of the 2004 Act and was entitled to conclude that, having balanced the benefits of the proposal under policy EN7 as against its adverse implications for landscape and historic assets, the proposal did accord with policy EN7 and overall with the aims of the Development Plan. He may have omitted to refer to another relevant policy EN2, but he was well aware that that harm itself constituted a breach of policy EN2 and the balance that he struck as against the benefits of the proposal took that into account.
So the decision could not be quashed for failure to abide by the Section 38(6) Requirement.
The Listed Building Setting Requirement
The inspector similarly concluded that there would be harm to the building’s setting contrary to the development plan policies, and that overall the proposal would not preserve the setting of that listed building. However, the inspector was able to uphold the proposal because he also concluded that those policies were consistent with the relevant section of the National Planning Policy Framework (“NPPF”), and that any harm would be less than substantial, engaging paragraph 134 of the NPPF, and that again the public benefit would outweigh the harm.
But whatever account he took of the NPPF the court did not find anything in the inspector’s reasoning to indicate that he had applied the statutory requirement to have special regard to the desirability of preserving the setting of listed buildings. Instead the inspector appeared to have balanced the relative harm and benefit as a matter of straightforward planning judgment without applying the special regard required under Section 66(1) of the LBA 1990.
Thus he treated the balance under paragraph 134 of the NPPF as the same exercise as that in respect of the landscape effects.
The statutory language of Section 66(1) of the LBA 1990 went beyond that and treated the preservation of the setting of a listed building as presumptively desirable. So, if a development would harm the setting of a listed building, there has to be something of sufficient strength in the merits of the development to outweigh that harm.
Section 66(1) of the LBA 1990 created a presumption against permission or a requirement for strong countervailing reasons for its grant
Here the problem was that the inspector did not have express regard to the statutory duty but applied a simple balancing exercise under paragraph 134 of the NPPF. There was no way of knowing how that balance would or might have been affected if he had had special regard to the desirability of the preservation of the settings. He could still have come to the same overall decision, but the court could not say that would inevitably been the case if he had in fact taken the statutory requirement into account. So the inspector’s decision on appeal was quashed.
This blog has been posted out of general interest. It does not remove the need for proper legal advice in individual cases.