Lancashire v Northumberland County Council and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lewison
Judgment Date08 Jul 2014
Neutral Citation[2014] EWCA Civ 1023
Docket NumberCase No: C1/2014/0083

[2014] EWCA Civ 1023

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

THE ADMINISTRATIVE COURT AT LEEDS

(MR JUSTICE BLAKE)

Royal Courts of Justice

Strand

London, WC2A 2LL

Before:

Lord Justice Lewison

Case No: C1/2014/0083

Lancashire
Applicant
and
Northumberland County Council & Anr
Respondent

Mr R Harwood QC (instructed by Richard Buxton) appeared on behalf of the Applicant

The Respondent did not appear and was not represented

Lord Justice Lewison
1

1. On 16 January 2013 Northumberland County Council granted planning permission for the installation of a single wind turbine on a site at Highburn House near Wooler. Mr Lancashire's challenge to the grant failed before Blake J and he now seeks permission to appeal to this court, his application having been refused on the papers by Sir David Keene.

2

The first ground of appeal was that the planning committee were not referred to the Northumberland Key Land Use Impact Study which dealt with the sensitivity of various landscape types to different types of development. That ground is no longer pursued.

3

The second ground, which is pursued, is that the committee either failed to have regard to the National Planning Policy Framework ("the NPPF") or misinterpreted it. The officer's report referred expressly to the NPPF and the reasons for the grant of permission also stated that it was in accordance with the NPPF. The particular part of the NPPF relied upon is concerned with development which might affect designated heritage assets such as scheduled ancient monuments. The policy distinguishes between development that would cause substantial harm and development that would cause less than substantial harm.

4

In this case there were two potentially relevant ancient monuments, a ringwork and a hillfort, as well as a historic battlefield. The council consulted English Heritage, a conservation officer and the county archaeologist. The conservation officer said that the heritage assets would not be harmed by the development. The archaeologist said that the development would not significantly harm the setting or the significance of the heritage assets. English Heritage said that the impact of the development would be low and that the significance and appreciation of the heritage assets would not be significantly affected by the development. The consensus of expert opinion is clearly that there would be less than substantial harm.

5

The relevant paragraphs of the NPPF are paragraphs 132 and 134. Paragraph 132 reads:

"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. Substantial harm to or loss of a Grade II listing building, park or garden should be exceptional. Substantial harm to or loss of designated heritage assets of the highest significance, notably scheduled monuments, protected wreck sites, battlefields, Grade I and II star listed buildings, grade I and II star registered parks and gardens and world heritage sites should be wholly exceptional."

6

Paragraph 134 reads:

"Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use."

7

There is no statutory direction to the planning authorities about how to deal with application that is might affect ancient monuments. This is in contrast to section 66 of the Planning...

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