020 7242 4986 or  0333 240 0591 London  |  Birmingham  |  Cardiff
News

North Norfolk District Council v SSCLG and Mack [2014] EWHC 279 (Admin)

Renewables vs Heritage Assets - High Court Reiterates Importance of Statutory Duty to Preserve Listed Buildings and their Settings

North Norfolk District Council v SSCLG and Mack [2014] EWHC 279 (Admin)

The High Court has quashed a decision of an Inspector granting permission for a controversial wind turbine, because the Inspector failed to comply with his statutory duty to have special regard to the desirability of preserving the setting of a number of heritage assets which would have been harmed by the turbine. Estelle Dehon appeared for North Norfolk District Council, who brought the challenge.

Harm to Heritage Assets and their Settings
The judgment is significant because it reiterates that decision-makers considering harm to heritage assets cannot simply treat "the desirability of preserving the setting of a listed building as a mere material consideration to which they can simply attach the weight they see fit in their judgment. The statutory duty [in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990] goes beyond that and treats the preservation of the setting of a listed building as presumptively desirable." (emphasis added). The Court accepted that the effect of the statutory requirement is to impose a duty on decision-makers to give "considerable importance and weight" or "high priority" to the desirability of preserving listed buildings and their settings.

The decision is also important because it considers the relationship between the section 66(1) duty and paragraphs 132-134 of the NPPF, which deal with heritage assets. The Court held that the advice in those sections of the NPPF is consistent with section 66(1). However, it is not enough for decision-makers simply to carry out a straight balancing exercise between harm and public good under paragraph 134 of the NPPF. The Court held that the section 66(1) duty affects the weight to be given to the factors involved, and the decision-maker must ask "whether there is justification for overriding the presumption in favour of preservation."

Renewables vs Heritage Assets
This decision could potentially have a significant impact on the way in which decision-makers approach applications for permission for on-shore wind turbines. The size and optimum positioning of on-shore wind turbines often means they become focal points in the landscape, visible over significant distances, and can easily have a harmful impact on the setting of listed buildings. While the policy support for renewable and low carbon energy is strong, decision-makers must now consider whether the public benefit flowing from a wind turbine development is sufficient to override the presumption in favour of preserving the setting of listed buildings.

Details of the Case
The wind turbine at issue in this case was to have been erected in open countryside on the side of the Cromer Ridge in Norfolk. It was accepted that this would have had a harmful impact on the setting of a number of listed buildings, including several Grade II* listed churches and the listed park of the Grade I Barningham Hall. The District Council had refused permission on this basis (amongst others), but a planning inspector disagreed and granted permission. In his decision letter, the inspector went very carefully through the harm to be caused to the setting of each asset, and then carried out the balancing exercise required by paragraph 134 of the NPPF. The Court considered the decision letter as a whole, and held that the inspector had not in fact had regard to the statutory duty and specifically had not engaged with the presumptive desirability of preserving the setting of the listed buildings. Accordingly, the Court quashed the planning permission granted by the inspector and remitted the planning appeal for re-determination.

For full transcript of the judgment click: North Norfolk DC v SSCLG & David Mack

Permission to appeal was refused by the High Court.