C O N T E X T 1 4 2 : N O V E M B E R 2 0 1 5 5 advised should be given to this factor) would outweigh the less-than-substantial harm it would cause to the setting of the listed building. He therefore granted permission. The decision of the inspector was challenged by way of judicial review by the local planning authority, the National Trust and English Heritage on the basis that he had failed to have special regard to the desirability of preserving the setting of the listed building under section 66(1). The High Court found that the planning inspector had not at any stage in the balancing exercise accorded ‘special weight’ to the listed building. Instead he had treated the harm to the setting and the wider benefit of the windfarm proposal as if those factors were of equal importance. The inspector had wrongly applied the policy in PPS5 without giving effect to the section 66(1) duty, which applies equally whether the harm has been assessed as substantial or less than substantial. The High Court held that under section 66(1) a decision-maker should accord ‘considerable importance and weight’ to the desirability of preserving the setting of a listed building when weighing this factor in the balance with other ‘material considerations which have not been given this special statutory status’. Barnwell then appealed to the Court of Appeal, arguing that section 66(1) did not, in fact, require the decision-maker to give any particular weight to this factor and, when carrying out the balancing exercise implicit in section 66(1), the weight to be given to the harm of the setting of a listed building was entirely a matter of planning judgment for the decision-maker, to be balanced against other factors, such as the advantages of the proposed development. Lord Justice Sullivan, who gave the leading judgement in the Court of Appeal, upheld the decision of the High Court on the basis that section 70(1) was expressly subject to section 66 of the Listed Building Act. He agreed that decision-makers should give ‘considerable importance and weight’ to the setting of listed buildings and that the inspector in this case had failed to do this. Sullivan LJ accepted that the inspector’s assessment of the degree of harm to the setting of the listed building was a matter for his planning judgement, but he did not accept that the inspector was free to give that harm such weight as he chose when carrying out the balancing exercise. It did not follow that if harm to a listed building was found to be less than substantial under the balancing exercise in policies HE9 and HE10 that a decision-maker could ignore the overarching duty imposed by section 66, although if the harm was less substantial it would plainly lessen the strength of the presumption against the grant of planning permission. On this basis, the Court of Appeal quashed the planning permission that had been granted by the inspector. Forge Field This decision of the Court of Appeal in February 2014 was followed a few months later by the High Court, in a decision relating to an affordable housing proposal in the village of Penshurst in the HighWeald in Kent. The decision of Sevenoaks District Council to grant planning permission for the proposed development was challenged by an unincorporated association of local inhabitants (known as the Forge Field Society). The challenge was on a number of grounds, which included failure on the part of the local planning authority to discharge its duties under section 66(1) and section 72(1) in respect of potential harm to the settings of Star House, a Grade II* listed building erected in 1610 and Forge Garage, a building in the arts-and-crafts style, now divided into the Old Smithy and Forge Garage Cottage, and listed at Grade II – all situated in the Penshurst Conservation Area.This ground of the claim was introduced only at a late stage in the proceedings, after the Court of Appeal had given its decision in the Barnwell ManorWindfarm case. The decision in the case of Barnwell Manor windfarm related to its impact on Lyveden New Bield, a Grade-I-listed, unfinished Elizabethan summer house. (Photo: Ed Bramley, Wikimedia Commons)
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