Bedford Borough Council v Secretary of State for Communities and Local Government (First Defendant) Nuon Uk Ltd (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 26 July 2013 |
| Neutral Citation | [2013] EWHC 2847 (Admin) |
| Docket Number | CO/9953/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 July 2013 |
[2013] EWHC 2847 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Jay
CO/9953/2012
Mr T Cosgrove (instructed by Bedford Council Legal Department) appeared on behalf of the Claimant
Mr A Newcombe QC (instructed by Bond Dickinson) appeared on behalf of the Defendant
This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of the first respondent's inspector given on 13 August 2012, granting planning permission with conditions for the erection of three large wind turbines at a site called Airfield Farm, Podington, Bedfordshire.
The application is brought by the local planning authority, the Bedfordshire Borough Council. The first respondent, the Secretary of State for Communities and Local Government, does not appear before me today, having indicated an intention at the end of June to submit to judgment on the reasons issue. Accordingly, the second respondent, Nuon UK Limited, the original appellant before the inspector, takes up the cudgels in defence of the decision.
The inspector's decision followed a four or five day planning inquiry and a number of site visits by him. The main issue before the inquiry was whether any benefits of the proposal were sufficient to outweigh any harm it might cause to the character and appearance of the surrounding landscape, the setting of heritage assets, the living conditions of nearby residents through visual impact and/or noise, the enjoyment of riders and other users of public rights of way, ecology, and other matters.
It is salient background that the local planning authority's position before the inspector, aligned to the position of English Heritage, was not that the proposed development would cause substantial harm to the setting of heritage assets. It was another interested party, Campaign to Limit Onshore Wind Development, who as it were ran with this point. The second respondent submits that the claimant local planning authority, having lost on the main point he took before the inspector, namely the landscape issue, is acting in a somewhat opportunistic way in alighting on the heritage assets issue. I tend to agree, and will need to consider the extent to which this is an aspect of the matter which needs to inform the exercise of my discretion in this appellate jurisdiction.
In this context, I also refer to two specific matters which were drawn to my attention through evidence filed by the second respondent. First of all, before the inspector's decision under challenge, a previous inspector had considered these issues, or at least most of them. At page 24 of the supplementary bundle, we see this, and this is paragraph 50 of the relevant decision letter:
"In terms of heritage matters, references have been made to Hinwick House and its parkland Hinwick Hall, the Podington Conservation Area, and Chellington Church. There would be some views of the turbines over and through trees and woodland from these places. However, I find that the distances would be such that their settings would not be adversely affected. I note that neither English Heritage nor the Council have raised objections on heritage grounds."
So the position at the first appeal was not even that some harm would be caused. My interpretation of DL50 is that no significant harm would be caused.
As for the current proceedings, as it were, my attention has been drawn to the Statement of Common Ground which starts at page 6 of the supplementary bundle. Paragraphs 5.1.7 and 5.1.9 are of particular relevance. Paragraph 5.1.7, for example, states:
"Although there will be adverse effects on cultural heritage assets these are not significant and are not sufficient to warrant refusal of planning permission."
In a nutshell, and subject to more detailed analysis of what he decided, which I will undertake subsequently, the inspector found that the harm the proposed development would cause to the setting of various heritage assets, and thereby its significance, would be less than substantial. The inspector purported to carry out a balancing exercise and concluded that the upshot was that the proposed development could be permitted with conditions.
The claimant seeks to assail the inspector's decision on five grounds. Here I cite from the claimant's skeleton argument, not the second respondent's reformulation of those issues which it contends one needs to undertake in order to make proper sense of them. At this stage it is surely sufficient to record the precise way in which the claimant advances its case on this issue:
1. Did the inspector correctly construe and apply planning policy in relation to the impact of development on the setting and significance of heritage assets?
2. Was the inspector's application of the NPPF and/or his reasoning legally adequate?
3. Did the inspector undertake a lawful balancing exercise?
4. Did the inspector give special regard to the desirability of preserving the settings of affected listed builds as required by section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990?
5. Was the inspector's reasoning legally adequate?"
The legal principles governing an application under section 288 are generally speaking common ground, subject to minor differences in emphasis, which I shall address when I come to examine the issues. There is, however, a potentially important issue between the parties as to the right approach to issue 4, and the correct application of the test, if it be a test, in section 66(1) of the 1990 Act. I shall now examine, analyse and set out my conclusions on the five issues in turn.
By its first ground, the claimant contends that the inspector misconstrued and/or misapplied the concept of "substantial harm". At DL42, the final sentence, the inspector said that substantial harm needs to be something approaching demolition or destruction. Mr Cosgrove for the local planning authority submits that here the bar is being placed too high, and in a manner which enables the court to intervene, because this issue is logically prior to any question of planning judgment. Not merely does the terminology "something approaching demolition or destruction" suggest an overly formidable hurdle, it creates a false equiparation between physical harm on the one hand and non-physical or indirect harm on the other. Mr Cosgrove goes so far as to submit that it is far from clear that the inspector had other than physical harm in mind at all.
Further, the extent that what the inspector described as the still extant practice guide that accompanied the now defunct PPS5 was at all relevant, the inspector clearly misapplied it. Paragraph 91 of the practice guide does not circumscribe substantial harm as the inspector suggested. Paragraphs 99 to 95 are concerned with varying degrees of physical harm.
Finally, Mr Cosgrove drew my attention to paragraph 132 of the National Planning Policy Framework, the NPPF, which came into effect on 27 March 2012, and after the inspector's inquiry. The inspector gave the parties the opportunity to advance written submissions on the NPPF as a whole. The NPPF is important because it went slightly further than the antecedent PPS5.
I start with the relevant part of the glossary at page 94 of the bundle. "Setting of a heritage asset" means:
"The surroundings in which a heritage asset is experienced. Its extent is not fixed and may change as the asset and its surroundings evolve. Elements of a setting may make a positive or negative contribution to the significance of an asset, may affect the ability to appreciate that significance or may be neutral."
Then "significance (for heritage policy)" means:
"The value of a heritage asset to this and future generations because of its heritage interest. That interest may archaeological, architectural, artistic or historic. Significance derives not only from a heritage asset's physical presence, but also from its setting."
Surroundings are not limited to the curtilage of the asset. The "setting" is of course distinct from the physical structure of the asset itself, as must have been obvious to the inspector. Mr Cosgrove submitted in relation to the definition of "significance" that the final sentence is new. I will need to consider that submission in the context of PPS5, to the extent that it is material to my decision on the first ground.
Paragraphs 131 to 134 of the NPPF provide, and this is page 69 of the bundle:
"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.
"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 irreplaceable, any harm or loss should require clear and...
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