Palmer v Herefordshire Council and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Hamblen,Lord Justice Moore-Bick |
| Judgment Date | 04 November 2016 |
| Neutral Citation | [2016] EWCA Civ 1061 |
| Docket Number | Case No: C1/2015/3383 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 November 2016 |
[2016] EWCA Civ 1061
Lord Justice Moore-Bick
Lord Justice Lewison
and
Lord Justice Hamblen
Case No: C1/2015/3383
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT: PLANNING COURT
HIS HONOUR JUDGE DAVID COOKE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr James Burton (instructed by Kidwells Law Solicitors Ltd) for the Appellant
Mr Matthew Reed (instructed by Herefordshire Council) for the Respondent
Hearing date: 25/10/2016
Approved Judgment
On 15 December 2014 Herefordshire Council ("the Council"), as local planning authority, granted planning permission for the erection of four poultry broiler units and associated infrastructure at Flag Station, Mansel Lacy, Herefordshire. Mr David Palmer, who lives nearby at Shetton Barns and has a holiday lettings business, challenged that grant on a number of grounds. HH Judge David Cooke rejected all grounds of challenge in his judgment of 22 September 2015 ( [2015] EWHC 2688 (Admin)). He granted permission to appeal to this court on one ground only, namely that the Council had failed to comply with its statutory duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.
The judge described the proposed development thus:
"The proposed development consists of four large sheds, each approximately 95m long, 25m wide and 6m high. Each will have three feed silos adjacent, somewhat taller than the shed, and accommodate 45,000 broiler chickens at any one time."
Some 50 metres from the broiler units lies Flag Station. It is a disused railway station, built in about 1863, and is a Grade II listed building. Flag Station is owned by, and under the control of, the developer and forms part of the same agricultural unit as the site of the proposed broiler sheds. Mr Palmer's case is that the Council failed to demonstrate that it gave appropriate weight to the desirability of preserving the setting of that listed building, and failed to consider in that context non-visual harm to its setting, in particular from the noise and smell that would be occasioned by the operation of the broiler units and the spreading of manure on open fields.
Section 66(1) provides, so far as material:
"In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority … 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."
Since section 66(1) requires that "special" regard must be paid to the desirability of preserving a listed building or its setting, this means that that desirability must be given "considerable importance and weight:" The Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303, 1319. In this context the concept of "preserving" the building or its setting means "doing no harm:" South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141, 150. Although the most obvious way in which the setting of a listed building might be harmed is by encroachment or visual intrusion, it is common ground that, in principle, the setting of a listed building may be harmed by noise or smell. The degree of harm (if any) is a matter of judgment for the decision maker, but if the decision maker decides that there is harm, he is not entitled to give it such weight as he thinks fit. To the contrary he must give it considerable weight: East Northamptonshire DC v Secretary of State for Communities and Local Government [2014] EWCA Civ 137, [2015] 1 WLR 45 at [22]. However, this does not mean that the weight that the decision maker must give to the desirability of preserving the building or its setting is uniform. It will depend on, among other things, the extent of the assessed harm and the heritage value of the asset in question: East Northamptonshire DC at [28]; R (Forge Field Society) v Sevenoaks DC [2014] EWHC 1895 (Admin); [2015] JPL 22 at [49]. This is consistent with paragraph 132 of the National Planning Policy Framework ("the NPPF") which states:
"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."
On the same theme paragraph 134 of the NPPF states:
"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."
The existence of the statutory duty under section 66(1) does not alter the approach that the court takes to an examination of the reasons for the decision given by the decision maker: Jones v Mordue [2015] EWCA Civ 1243; [2016] 1 WLR 2682. It is not for the decision maker to demonstrate positively that he has complied with that duty: it is for the challenger to demonstrate that at the very least there is substantial doubt whether he has. Where the decision maker refers to the statutory duty, the relevant parts of the NPPF and any relevant policies in the development plan there is an inference that he has complied with it, absent some positive indication to the contrary: Jones v Mordue at [28]. In examining the reasons given by a local planning authority for a decision, it is a reasonable inference that, in the absence of contrary evidence, they accepted the reasoning of an officer's report, at all events where they follow the officer's recommendation: R (Fabre) v Mendip DC (2000) 80 P&CR 500, 511; R (Zurich Assurance Ltd) v North Lincolnshire Council [2012] EWHC 3708 at [15].
In reading an officer's report, the court must not impose too demanding a standard: R (Morge) v Hampshire County Council [2011] UKSC 2, [2011] 1 WLR 268 at [36]. Such reports are addressed to a knowledgeable readership including members of the planning committee who, by virtue of that membership, may be expected to have substantial local and background knowledge. That background knowledge includes a working knowledge of the statutory test for determination of a planning application: R (Zurich Assurance Ltd) v North Lincolnshire Council at [15]. Where a claim for judicial review is based on alleged deficiencies in an officer's report to the planning committee it normally needs to be shown that the overall effect of the report significantly misleads the committee about material matters which remain uncorrected at the meeting of the planning committee before the relevant decision is taken: Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997). The ultimate test is whether the reasons enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues. The reasoning must not give rise to a substantial doubt (as opposed to what has been called a "forensic doubt") as to whether the decision maker erred in law, although such an inference will not be readily drawn: South Bucks DC v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 at [36].
The first question, as it seems to me, is to consider whether the Council (through the advice it got from its officers) identified any (and if so what) harm to Flag Station. There was a debate about whether the judge found that the Council had identified harm. This turned upon a meticulous examination of the language of the judgment. But that is a sterile debate, since we have the primary documents.
Before the planning officer prepared his reports for the committee, the Council took the advice of internal consultees: Ms Tinkler, a landscape consultant, and Ms Lowe, a senior buildings conservation officer. In her report of 1 May 2014 Ms Tinkler reported that there were several heritage assets with "could potentially be affected" by the proposals, and went on to consider potential effects. In paragraph 5g of her report she said:
"It is possible that the buildings would be visible from Flag Station and they would certainly adversely affect its setting. The amenity of the residents here is also likely to be adversely affected by traffic, activity, noise, smell and so on. It should be demonstrated that any adverse effects can be satisfactorily mitigated."
Her conclusion in paragraph 6 was:
"I do not object to the proposals in principle but effective and appropriate mitigation is required in order to avoid adverse effects in the longer term, and to safeguard the amenity of residents at Flag Station and Shetton Barns to the south west. Without it, the development would be contrary to planning policy including UDP Policy LA2 Landscape character."
Paragraph 5g is not, in my judgment, a statement that the proposals would adversely affect Flag Station or its setting. Rather it is a statement that they would adversely affect Flag Station or its setting in the absence of satisfactory mitigation. That is the only reading with is consistent with the last sentence of paragraph 5g and also Ms Tinkler's overall conclusion. What is noticeable about her conclusion is that with the mitigation measures adverse effects would be avoided, not that they would be outweighed by countervailing benefits of the development. In addition policy LS2 states that:
"Proposals for new development that would adversely affect either the overall character of the landscape … or its key...
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