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1 August 2017

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Regina (Williams) v Powys County Council [2017] EWCA Civ 427

9 March; 9 June 2017 Court of Appeal: Lindblom , Irwin LJJ

Planning — Planning permission — Development affecting listed buildings — Planning permission granted for erection of wind turbine near Grade II* listed building and scheduled monuments — Whether decision-maker required to consult Welsh ministers — Whether requirement on decision-maker to “have special regard to the desirability of preserving” setting of listed buildings — Planning (Listed Buildings and Conservation Areas) Act 1990 (c 9), s 66(1) — Town and Country Planning (Development Management Procedure) (Wales) Order 2012 (SI 2012/801), art 14, Sch 4, para k

The defendant local planning authority granted planning permission for the erection of a wind turbine on the farm of the interested party. The wind turbine was erected on the side of a hill the other side of which, about 1·5 km from the wind turbine, was a Grade II* listed building. Several scheduled monuments were also in the surrounding area, two of which were within two km of the site. The claimant, a local resident, applied for judicial review of the council’s decision to grant planning permission. The judge dismissed the claim, determining that (i) the planning authority was not required to consult the Welsh ministers under article 14 of the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 as the requirement to consult on development “likely to affect the site of a scheduled monument” in paragraph k of Schedule 4 to the Order applied only to development likely to have some direct physical effect on the monument, not also to development likely to have visual effects on the setting of the monument, and (ii) the planning authority had not erred in failing to perform the duty in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, which required it to have special regard to the desirability of preserving the setting of a listed building when deciding whether to grant planning permission for development which affected a listed building or its setting.

On the claimant’s appeal—

Held, appeal allowed in part. (1) Paragraph k of Schedule 4 to the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 would not naturally be understood as meaning “development likely to affect the site or the setting of a scheduled monument”. In the ordinary use of language the “site” of a scheduled monument and its “setting” were not the same thing. There was no justification for reading into paragraph k an additional phrase “or setting” as its meaning was perfectly clear as it was. The statutory scheme was entirely coherent. The concept of a scheduled monument in paragraph k was the same as in section 1(11) of the Ancient Monuments and Archaeological Areas Act 1979. Accordingly, the judge’s construction of the relevant provisions of the 2012 Order was correct (paras 30–35, 40).

(2) The circumstances in which the duty in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 had to be performed where the setting of a listed building was concerned would vary considerably, and with a number of factors, including the nature, scale and sitting of the development proposed, its proximity and likely visual relationship to the listed building. Ultimately the question of whether section 66(1) was engaged would always depend on the particular facts and circumstances of the case. The setting of a listed building did not lend itself to an exact definition, clearly, however, if a proposed development was to affect the setting of a listed building there should be a distinct visual relationship of some kind between the two which was more than remote and ephemeral and which in some way bore on one’s experience of the listed building in its surrounding landscape or townscape. That the possible effect of the proposed development on the setting of a listed building had not been identified as an issue during the consultation process or in representations made by third parties did not relieve a planning authority of the duty under section 66(1). In the present case without the relevant exercise having been undertaken in the planning officer’s report so as to show that the section 66(1) duty had been heeded and performed, and without some trace of it having been undertaken by the members in their consideration of the proposal, it could only be concluded that the planning authority’s decision-making was deficient and therefore unlawful as it had failed to discharge its duty under section 66(1) and also failed to have regard to relevant development plan and national planning policy as material considerations and the judge was wrong to determine otherwise (paras 53, 56, 58, 59, 67, 70, 74, 75).

R (The Friends of Hethel Ltd) v South Norfolk District Council [2011] 1 WLR 1216, CA considered.

Decision of C M G Ockelton sitting as a deputy judge of the Queen’s Bench Division [2016] EWHC 480 (Admin) reversed in part.

Appearances: Richard Harwood QC (instructed by Harrison Grant Solicitors) for the claimant. Clare Parry (instructed by Powys County Council Legal Services) for the local planning authority. James Corbet Burcher (instructed by Margraves Solicitors, Llandrindod Wells) for the interested party.

Reported by: Nicola Berridge, solicitor.

Solicitors Journal case digest is prepared by the Incorporated Council of Law Reporting for England and Wales (ICLR)

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