Aidan Jones v Jane Margaret Mordue (First Respondent) Secretary of State for Communities and Local Government (Second Respondent) South Northamptonshire Council (Third Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Floyd,Lord Justice Richards |
| Judgment Date | 03 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1243 |
| Docket Number | Case No: C1/2015/1067 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 December 2015 |
and
and
[2015] EWCA Civ 1243
Lord Justice Richards
Lord Justice Floyd
and
Lord Justice Sales
Case No: C1/2015/1067
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION, PLANNING COURT
MR JOHN HOWELL QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Alistair Mills (instructed by Wilkin Chapman LLP) for the Appellant
Mr Juan Lopez (instructed by Direct Access) for the FirstRespondent
The 2nd Respondent did not appear and was not represented
The 3 rd Respondent did not appear and was not represented
Hearing date: 28 October 2015
This appeal relates to planning permission granted by an Inspector (Mr John Braithwaite) for the erection of a single freestanding wind turbine with associated hard standing, access road and electricity sub-station on land at Poplars Farm, Wappenham, Towcester. The land is owned by the appellant. The respondent is chairperson of a local group of objectors. She made an application to the High Court under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash that grant of permission. Her application was successful before John Howell QC, sitting as a deputy judge of the High Court. The appellant appeals to this court.
The wind turbine will impinge to a certain extent on views of the Church of St Mary in Wappenham ("the Church"), which is a Grade II* listed building. It will also affect to a very limited degree the setting of certain other listed buildings: The Manor at Wappenham, which is located close to the Church of St Mary, and the Church of St Botolph at Slapton, which is located some distance away. Listed buildings and their settings are accorded special protection under the planning controls regime by virtue of section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Listed Buildings Act") and chapter 12 ("Conserving and enhancing the historic environment"), paras. 126–141, of the National Planning Policy Framework ("the NPPF").
Since the wind turbine would affect the setting of the Church and, to a lesser extent, the other listed buildings, the deputy judge correctly held that the Inspector was obliged to give considerable weight to that harm when considering whether planning permission should nonetheless be granted. Under Ground 2 of the respondent's application, the deputy judge held that the respondent could not show that the Inspector had in fact failed to give the considerable weight to any harm to the setting of the listed buildings which he was required to give: para. [42] of the judgment. The deputy judge also rejected a claim by the respondent (Ground 1 of her application) that the Inspector failed to apply properly the duty imposed by section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"), which required the application for planning permission to be determined "in accordance with the [development] plan unless material considerations [indicated] otherwise".
However, the deputy judge allowed the respondent's application to quash the planning permission under a second limb of Ground 2, because he accepted her submission that the Inspector had failed to demonstrate in the reasons he gave that he had complied with his duty under section 66(1) of the Listed Buildings Act to have special regard to the desirability of preserving the setting of the Church and other listed buildings by giving considerable weight to the desirability of preserving that setting: see, in particular, para. [48] of the judgment. The deputy judge considered that he was bound to reach this conclusion by the decision of this court in East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137; [2015] 1 WLR 45 ("the East Northamptonshire case"), in particular at [29] per Sullivan LJ (with whose judgment Rafferty and Maurice Kay LJJ agreed).
The deputy judge, however, also gave what are to my mind excellent reasons for thinking that this result would be out of line with other high authority, Save Britain's Heritage v Number 1 Poultry Limited [1991] 1 WLR 153, HL. That in turn calls in question whether he was right to interpret Sullivan LJ's judgment in the East Northamptonshire case in the way he did.
The deputy judge rejected a further claim by the respondent (Ground 3 of her application) that the Inspector had failed properly to consider the intrinsic significance of the heritage assets and the contribution which their settings made to their significance, as required by the NPPF. Finally, the deputy judge held that the claim by the respondent (Ground 4 of her application) that she had been substantially prejudiced by a failure on the part of the Inspector to give reasons for his decision was made out for the same reason that Ground 2 was made out, but added nothing material to that Ground.
In the event, Sullivan LJ himself granted permission to appeal in relation to Grounds 2 and 4 on the footing that the appellant had a good prospect of successfully persuading the Court of Appeal that either the deputy judge had misunderstood the judgment in the East Northamptonshire case or that that judgment had been decided per incuriam and was not to be followed. In relation to the first of these points, Sullivan LJ wrote:
"The basis for the Deputy Judge's central conclusion in paragraph 48 of his judgment appears to be the short extract from paragraph 29 of my judgment in East Northamptonshire which he cited in paragraph 43 of his judgment. It is strongly arguable that paragraph 29 of East Northamptonshire should be read as a whole, in the context of the preceding paragraphs in the judgment referred to in the Appellant's Skeleton Argument; and if that is done, that it was clear from the Inspector's reasoning in his decision in East Northamptonshire that he had not given 'considerable importance and weight' to the 'detrimental effect' of the turbine array upon the setting of a group of designated heritage assets which he had found to have 'archaeological, architectural, artist and historic significance of the highest magnitude.'"
The respondent supports the deputy judge's decision for the reasons he gave and also, by a respondent's notice, seeks to uphold it on the basis that he should have accepted Ground 1 of her application (alleged failure to comply with section 38(6) of the 2004 Act).
The statutory and policy framework
By virtue of sections 70(2) and 79(4) of the 1990 Act, regard must be had to the provisions of the development plan for the area. Section 38(6) of the 2004 Act provides that:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
The relevant policies in the local development plan for the area were saved Policies G3 and EV1, which related to general design and landscaping and amenity considerations, and Policy EV12 in relation to Listed Buildings. Policy EV12 provides as follows:
"When considering applications for alterations or extensions to buildings of special architectural or historical interest which constitute development the council will have special regard to the desirability of securing their retention, restoration, maintenance and continued use. Demolition or partial demolition of listed buildings will not be permitted. The council will also seek to preserve and enhance the setting of listed buildings by control over the design of new development in their vicinity, the use of adjoining land and, where appropriate, by the preservation of trees and landscape features."
The development plan also set out a paragraph of commentary on Policy EV12, which included the statement: "In accordance with the duty under the Planning (Listed Building and Conservation Areas) Act 1990, the Council will pay careful attention to the protection and improvement of Listed Buildings and their setting."
Section 66(1) of the Listed Buildings Act provides as follows:
"In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses."
The relevant paragraphs in the NPPF are as follows:
"131. In determining planning applications, local planning authorities should take account of:
• the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation;
• the positive contribution that conservation of heritage assets can make to sustainable communities including their economic vitality; and
• the desirability of new development making a positive contribution to local character and distinctiveness.
132. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset's conservation. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are...
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