4 C O N T E X T 1 4 2 : N O V E M B E R 2 0 1 5 TOM DEARDS The duty to have ‘special regard’ Recent case law on the duty on a local planning authority to have special regard to the setting of a listed building when considering whether or not to grant planning permission. Last year the Court of Appeal provided some useful clarification on the interpretation of section 66 of the Planning (Listed Building and Conservation Area) Act 1990 in the case of Barnwell ManorWind Energy Ltd v East Northamptonshire District Council and others [2014] EWCA Civ 137. This decision has been since been followed by the High Court in two further decisions in quick succession: R (Forge Field Society) v Sevenoaks District Council [2014] EWHC 1805 (Admin); and R (Trustees of the Cecil Estate FamilyTrust) v South Kesteven District Council [2015] EWHC 1978 (Admin). Statutory framework Generally speaking, under section 70(2) of theTown and Country Planning Act 1990 a local planning authority must have regard to any ‘material considerations’ when determining an application for planning permission. Clearly the impact of the development on a listed building is a material consideration for these purposes. Section 70(2) is silent on what weight a particular material consideration should be given by a local planning authority and how competing material considerations should be balanced against each other in determining an application for planning permission. The traditional approach (as set out by Lord Hoffman inTesco Stores v Secretary of State for the Environment and others [1995] 1WLR 759) is that the weight to be given to a particular material consideration is purely a question of planning judgment for the planning authority and, therefore, not strictly a legal question that is susceptible to challenge by way of judicial review in the courts. However, under section 70(3) the general power to grant planning permission under section 70(1) is expressly subject to sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Section 66(1) provides: ‘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.’ Section 72(1) provides: ‘with respect of any building or other land in a conservation area… special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area.’ Recent case law has clarified how this ‘special’ regard or attention (to listed buildings and their setting and conservation areas respectively) fits into the traditional approach of balancing competing material considerations under section 70(2). Barnwell Manor windfarm Barnwell ManorWind Energy sought planning permission for a five-turbine windfarm in the vicinity of Lyveden New Bield, a Grade I listed building also included in the Register of Parks and Gardens of Special Historic Interest at Grade I.The nearest turbine would be around 1.3 kilometres from the boundary of the registered park and 1.7 kilometres from the building itself. On appeal from a refusal by East Northamptonshire District Council, the planning inspector concluded that the effect on the setting of the listed building, while clearly detrimental, would not reach the level of ‘substantial harm’ for the purposes of Policy HE9 of PPS5 (then in force). He then carried out the balancing exercise required by Policy HE10, concluding that the significant benefits of the windfarm proposal in terms of the energy it would produce from a renewable source (having regard to the ‘significant weight’ that PPS22 then The impact of the two turbines of Newton Marsh windfarm on the setting of Tetney Church, Lincolnshire. An additional eight taller turbines have recently been approved on appeal to further affect the setting. (This case is not covered in this article) (Photo: RobertWalker)
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