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Wind turbine planning permission ignored likely effect on nearby church, Court of Appeal rules


Planning permission for a wind turbine has been overturned by the Court of Appeal, after it found that the local council failed to consider its impact on a local listed church.

Under section 66 of the 1990 Planning (Listed Buildings and Conservation Areas) Act, local planning authorities (LPAs) must have "special regard to the desirability" of preserving the setting of a listed building. While Powys County Council could still have granted planning permission after considering the turbine's impact on the church, the fact that it did not consider it at all was fatal to the grant of planning permission, the appeal court said.

Planning law expert Tom Edwards of Pinsent Masons, the law firm behind Out-Law.com, said that the case was the latest in a long line of court decisions about how an LPA should discharge its duty under section 66 of the 1990 Act.

"The present case is perhaps unusual as the planning officer's report had made no reference to the duty under section 66 at all and there had been no discussion at the relevant committee meetings, and therefore that was sufficient for Lord Justice Lindblom to conclude that an error of law had been made," he said.

"The decision reminds us that LPAs really need to engage with the duty set down under section 66. The planning officer's report needs to expressly deal with the duty and come to a conclusion on whether that duty is engaged and, if it is, it must apply the statutory duty as set out in case law. The fact that the possible effects of the proposed development on the setting of a listed building has not been identified as an issue in responses to consultation, or in representations made by third parties, does not in itself relieve an LPA of its duty," he said.

LPAs must also explicitly consider the contents of the application documents, Edwards said. In this case, the planning design and access statement noted that the effect of the turbine on the "views and setting" of the church was "slight", and that therefore no further mitigation would be necessary.

"This conclusion, even though it identified a less than substantial effect, was sufficient to warrant the court to conclude that there should have been explicit consideration of the section 66 duty in the officer's report," he said.

"It would of course been open to the planning officer to exercise her planning judgement, applying the correct test under section 66, and conclude that there would be no harmful effect on the setting of the church, but that did not happen here. The link between the conclusion reached in the application documents and in the planning officer's report to committee is therefore very important, and is a consideration for both LPA officers when preparing their reports but also for applicants when considering the planning officer report," he said.

Colin Bagley, a farmer, built his 41.8 metre turbine in summer 2016 following a grant of planning permission by Powys County Council. The electricity produced by the turbine is used by Bagley on his farm, with any excess transmitted to the grid. Graham Williams, a local resident, had challenged the planning permission decision due to the turbine's potential impact on several scheduled monuments in the area, as well as the grade II listed Llanbedr Church.

The Court of Appeal backed an earlier High Court decision that the LPA was not required under a separate piece of legislation to consult the Welsh ministers about the turbine's likely impact on the scheduled monuments. Those provisions made reference only to the impact on the "site" of the monuments, rather than their "setting". However, the 1990 Act explicitly refers to the impact on "setting". The planning officer's report dealt with these concerns in relation to the setting of the scheduled monuments, but not in relation to the church, according to the appeal court.

"[The planning officer's] advice... was that there would not be an unacceptable adverse effect on the setting of either of the scheduled monuments," said Lord Justice Lindblom. "The [planning committee] members had the benefit of that advice when they made their decision. And they clearly accepted it."

"There was, however, no parallel consideration of the possible effect on the proposed development on the setting of the grade II listed church … and no advice was provided to the committee on that question. The members therefore made their decision in the absence of any such advice," he said.

The decision coincided with the roll-out of a new 'Heritage Action Zones' initiative by Natural England, aimed at "breathing new life" into heritage areas and bringing neglected historic buildings back into use. Successful applicants for a Heritage Action Zone designation will receive access to Historic England's research teams, advice on planning policy and access to certain funding streams reserved for listed buildings and scheduled monuments.

"The collaborative approach and focus on heritage which are key features of Historic England's Heritage Action Zones should assist in highlighting and discharging the statutory duty with respect to listed buildings and conservation areas," said planning law expert Alexis Coleman of Pinsent Masons.

"Often, with regeneration projects or large-scale development, heritage-related restrictions are seen as a time-consuming obstacle. Heritage Action Zones will see greater cooperation between Historic England, the LPA and the developer, which in turn should mean developers have more clarity and certainty as to what expectations are in terms of preserving and conserving heritage assets," she said.

The focus of the planned Heritage Action Zones is "more commercial than simply protecting heritage assets"; as Historic England intends to prioritise applications for zones which deliver economic growth, particularly in connection with housing delivery, Coleman said.

"With early buy-in from Historic England and local authorities, developers can work with those bodies to develop a scheme which may well move through the development assessment process more smoothly. Heritage impacts will have been a key consideration, making the discharge of heritage statutory duties less of a stumbling block - which, in turn, may garner more favourable public support," she said.

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