Joyce Boden v East Staffordshire Borough Council Sun & Soil Renewable 20 Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Coulson,The Hon. Mr Justice Coulson |
| Judgment Date | 27 May 2016 |
| Neutral Citation | [2016] EWHC 1151 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 May 2016 |
| Docket Number | Case No: CO/6585/2015 |
[2016] EWHC 1151 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Birmingham Civil and Family Justice Centre
33 Bull Street, Birmingham, B4 6DS.
The Hon Mr Justice Coulson
Case No: CO/6585/2015
and
Mr Richard Wald (instructed by Aaron & Partners LLP) for the Claimant
Mr Anthony Gill (instructed by Angela Wakefield, solicitor to East Staffordshire Borough Council) for the Defendant
Mr Simon Pickles (instructed by Trowers & Hamlins LLP) for the Interested Party
Hearing Date: 17 May 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
On 20 November 2015, the defendant's Planning Committee granted planning permission ("the decision") for the siting of a solar farm to the east of Nabb Lane, Rochester, in Staffordshire ("the site"). The claimant, a local resident, seeks to challenge the decision by way of judicial review. The application is opposed by the defendant and the IP. On 15 April 2016, Patterson J ordered permission to be considered at a 'rolled-up' hearing.
Although other matters had been raised by the claimant in her Statement of Facts and Grounds, Mr Wald on her behalf made plain that the sole ground for the application now was the defendant's alleged failure to address the impact of the development on the setting of listed buildings in the manner required by law and by national and development plan policy.
The structure of this Judgment is as follows. In Section 2, I deal with the relevant facts. In Section 3, I deal with the relevant law. In Section 4, I set out my analysis of the claimant's criticisms of the decision. There is a brief summary of my conclusions at Section 5 below. I am very grateful to all counsel for their helpful skeleton arguments and their succinct oral submissions.
THE RELEVANT FACTS
By an application for planning permission received by the defendant on 17 July 2015, the IP sought permission to build a 5 MW solar farm with ancillary buildings, security fencing, CCTV, access track and landscaping at the site.
Amongst the documents supplied with the application were a Planning, Design and Access Statement ("PDAS") and a Heritage Statement ("HS"). The PDAS set out the policies relevant to the principle of renewable energy development. It concluded:
"The landscape effects of the proposed development on the wider character area are limited by the low-lying nature of the development which limits interaction with aspects of landscape character. There are limited areas within 2km where a view of the site is available, with only a slight minimal visual effect from a further distance; after the effects of the proposed screening, planting and other landscaping are taken into account, these effects would be further reduced. Planting of native tree species will be undertaken in the hedgerows surrounding the site, and the management regime will be altered to allow taller growth thus helping to screen the site further…
The effect of the proposed development on the setting of nearby listed buildings would be minimal…
Overall the proposed development would contribute to the aims and objectives of national policies as set out in the NPPF and also local policy.
This development represents an excellent opportunity for East Staffordshire Borough Council to contribute to the UK's legal obligations to derive 15% of energy from renewable sources and to reduce our carbon emissions by 26% by 2020. This proposal to generate electricity from solar power would contribute to these goals, and this site has been selected and carefully designed in order that any impact on the surrounding amenity and environment are minimised."
The reference to 'the nearby listed buildings' was a reference to Denstone College, a collection of Victorian Gothic Revival buildings 1 800 metres northeast of the site, which is dealt with in detail in the HS.
The relevant parts of the HS dealing with Denstone College were as follows:
(a) Introduction
"1.5. This Heritage Statement is necessary as Section 66 of the Planning (Listed Building and Conservation Areas) Act 1990 states that special regard shall be paid to the desirability of preserving the setting of listed buildings. One of the core planning principles of the National Planning Policy Framework (NPPF) is the conservation of heritage assets '…in a manner appropriate to their significance…' More details of national policy in relation to the historic environment are set out in Section 12 of the Framework and paragraph 128 indicates that applicants should provide a description of the significance of any heritage assets affected by their proposals (which is one of the purposes of this Statement). The same paragraph states that "The level of detail should be proportionate to the assets' importance and no more than is sufficient to understand the potential impact of the proposal on their significance".
1.6. Paragraph 132 of the Framework states that "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 convincing justification." The Framework also relates importance in terms of "special interest" to the weight that should be given to the asset's conservation.1.7. When considering the impact of a proposed development the National Planning Policy Framework refers to "material harm" (paragraph 65), "less than substantial harm" (paragraph 134) and "substantial harm" (paragraph 133) to heritage assets and their settings together with the planning consequences of any such findings. It is therefore the role of the heritage assessor to give reasoned arguments as to why the effects found should fall into one of these categories and thereby which paragraph of the NPPF applies. In the analysis of the impacts of the proposed development below a clear structure is set out on how this this assessment of impact is undertaken.
1.8. Useful National Guidance which has been referred to includes Historic England guidance Historic Environment Good Practice Advice in Planning "Note 3 The Setting of Heritage Assets" and "Note 2 Managing Significance in Decision-Taking in the Historic Environment" (2015) as well as 'Seeing History in the View' (2011). Reference is also made to the published CLG Planning Practice Guidance to the National Planning Policy Framework (2014).
1.9. The method for this assessment is to consider every heritage asset and its setting within 2km of the development site and where an impact is identified then a detailed 5 part assessment of the impact on the setting of that asset is undertaken following the Historic England Good Practice Advice note 3 (2015). Where an impact is not present a shorter summary is provided for each heritage asset. Where a heritage asset is part of a group of assets these are considered together and the cumulative impact on the individual settings of the assets is also discussed. Other heritage assets between 2km and 5km are also considered when a visual impact is noted during the site visit; when a visual link is identified in a ZTV; when there is a clear historical functional or other link to the site; when it is raised in pre-application discussions with Historic England and the LPA; or when of particular national significance (for example Grade I or 11* Listed Buildings). However following Historic England guidance 5km is not a fixed distance and other assets further away may be considered where appropriate."
Paragraph 1.11 of the Introduction dealt in considerable detail with the replacement Local Plan for East Staffordshire and its potential relevance. There were references to Strategic Policy 25 and Detailed Policy 5, both dealing with Heritage Assets.
(b) Consultation With Historic England
The HS set out the response from Historic England dated 12 May 2015, which stated:
"To the best of my knowledge I am not aware of any heritage assets which would be impacted by a solar farm in this location. We have objected to wind turbines proposed for land close to Croxden Abbey but Woodhouse Fields Farm [the site] is well away from there. I cannot envisage a heritage objection at this stage."
(c) Methodology
The methodology to be adopted for accessing the impact of a proposed development on the setting of heritage assets was set out in section 5 of the HS. This made extensive reference to paragraphs 132–135 of the NPPF (which are expressly concerned with Heritage Assets). The table at section 5.7 said that a 'minor' effect was one which "will be noticed but is not relevant to the decision process." It was said to be an effect "beneath the threshold where NPPF applies".
(d) Assessment Of The Group Of Heritage Assets At Denstone College
Step 1: Identifying the heritage assets affected and their setting
This part of the HS sets out the relevant assets at Denstone College and records Pevsner's view that the building comprised a "sweeping composition".
Step 2: Assessing whether, how and to what degree these settings make a contribution to the significance of the heritage assets.
"The most significant components of the setting of the historic assets at Denstone College as a group are their position on the ridge and the hundred acres of land within which they sit....
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