ON APPEAL FROM THE ADMINISTRATIVE COURT
MR C.M.G. OCKELTON (SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Strand, London, WC2A 2LL
B e f o r e :
Lord Justice Irwin
| R. (on the application of Graham Williams)
|- and -
|Powys County Council
- and -
Ms Clare Parry (instructed by Powys County Council Legal Services) for the Respondent
Mr James Corbet Burcher (instructed by Margraves Solicitors) for the Interested Party
Hearing date: 9 March 2017
(SUBJECT TO EDITORIAL CORRECTIONS)
Crown Copyright ©
Lord Justice Lindblom:
The issues in the appeal
The Planning, Design & Access Statement
"In order to ensure that potential impact upon Cultural Heritage elements in the local area are [sic] limited to an acceptable level the original development was specifically sited so as to ensure that it is not set within a clear visual context of the following: –
– World Heritage Sites
- Scheduled Ancient Monuments
- Listed Buildings
- Conservation Areas
Prior to progressing this submission, a desktop review of all previously submitted information and a further assessment of the sensitivity of any nearby designations has been undertaken using online resources and Local Planning Authority data.
Using Cadw it was possible to ascertain that there are a number of scheduled ancient monuments and a Grade II [sic] Listed Building within 2km of the site. There are no conservation areas or Grade I Listed Buildings within the locale.
Whilst the ZTV [i.e. zone of theoretical visibility] production associated with the subject proposal highlights that all the identified historical assets listed below may be afforded views of the blade tip and at times the nacelle of the proposed turbine potential impacts are likely to be minor at most. It should be noted that ZTV maps tend to over-estimate the extent of visibility and does not take account of natural or built features.
Due to the level of screening, the undulating topography, the distance that the majority of listed assets are located from the proposed turbine location, and in light of the limited scale of the turbine itself, the effect on views and setting of the listed structures and monuments is considered to be slight. No further mitigation is therefore considered to be necessary.
We would also take this opportunity to reiterate that the LPA have previously agreed with this analysis in issuing their initial consent. Given that the principle of the proposal remains the same we would expect a similar verdict in the consideration of this application."
Following that text, Figure 12 listed four "Cultural Heritage Assets". We are not concerned with the first, which was Llewetrog Field Boundary. As for the second, the scheduled monument known as Llandeilo Graban Motte (or Castle Mound), the "Orientation" was given as "1.4km to SSW of site", the "Receptor Sensitivity" was said to be "Low", the "Magnitude of Change" was assessed as "Slight", and the "Effect" as "Minor". For the third, the scheduled monument known as "Llanbedr Hill Platform House", the "Orientation" was given as "1.9km to NE of site", the "Receptor Sensitivity" was said to be "Low", the "Magnitude of Change" was assessed as "Negligible" and the "Effect" as "Minor/Negligible". And for the fourth, "Llanbedr Church" – the grade II* listed Church of St Peter at Llanbedr, wrongly described here as a grade II listed building – the "Orientation" was given as "1.5km to E of site", the "Receptor Sensitivity" was said to be "Low/Medium", the "Magnitude of Change" assessed as "Negligible", and the "Effect" as "Minor/Negligible".
The planning officer's reports to committee
"The desirability of preserving an ancient monument and its setting is a material consideration in determining a planning application. Where nationally important archaeological remains and their setting are likely to be affected by proposed development, there should be a presumption in favour of their physical preservation in situ.
The site of development is located within approximately 2km of two Scheduled Ancient Monuments (SAMs), the closest being Castle Mound (RD071) which is located approximately 1.4km from the proposed turbine site (south) and Llanbedr Hill Platform House (RD181) which is located approximately 1.9km of the proposed turbine (north). Photomontages accompanying the application indicate that despite the noted distance, intervening topography and vegetation, the proposed turbine will be clearly visible from the identified SAMs.
UDP policy ENV17 states that developments which would unacceptably adversely affect the site or setting of a Scheduled Ancient Monument will not be permitted. Given the noted distance, intervening topography and vegetation, it is considered that the proposed turbine would not have unacceptably adversely impact [sic] on the aforementioned Scheduled Ancient Monuments."
Correspondence after the grant of planning permission
In practice, the requirement to consult the Welsh Ministers is routinely interpreted by local planning authorities and Cadw to include development likely to affect the setting of a scheduled monument. This is supported by national policy and guidance which explains that the desirability of preserving an ancient monument and its setting is a material consideration in determining a planning application whether that monument is scheduled or not. Furthermore, it explains that where nationally important archaeological remains, whether scheduled or not, and their settings are likely to be affected by proposed development, there should be a presumption in favour of their physical preservation in situ. Paragraph 17 of Circular 60/96, Planning and the Historic Environment: Archaeology, elaborates by explaining that this means a presumption against proposals which would involve significant alteration or cause damage, or which would have a significant impact on the setting of visible remains.
We note that the applicant's agent has identified that the proposed development would have an impact on the settings of two scheduled monuments and, as such, we would have expected the local planning authority to consult Cadw.
Cadw maintained that position in subsequent e-mail exchanges on the same day, despite being told what CPAT's Development Control Archaeologist had said in his e-mail of 27 July 2015, and despite Mr Edwards pointing out that "the regulations … governing referral to [Cadw] … do not refer to "setting" but rather the "site" … of SAMs". They did not say what their response might have been if they had been consulted, or even that they would have responded.
The rural location of the church and the churchyard contribute greatly to the setting of the church, and the proximity of the proposed wind turbine to this listed building is noted, as is the fact that a turbine in such close proximity has the theoretical potential to affect the setting of this grade II* building, and to have a detrimental effect on the visitors to the graveyard.
However, I acknowledge the location of the church and the churchyard nestled under Coed y Garth and the escarpment to the east of the woodland. The difference in heights between the site of the proposed turbine and the listed church is illustrated by Viewpoint 8 – Llanbedr Hill, which does not contain the church however Coed y Garth is on the photograph.
Viewpoint 2 is taken [from] the footpath on the top of The Garth and also illustrates clearly the difference in the height of the top of The Garth and the location of the turbine, and that the hub and the entire length of a blade would be visible from that point.
Considering the evidence submitted with the application and visiting the site, I would not consider that the turbine would be visible from St Peters or the Churchyard. I would not consider that the setting of [sic] the short term views of the Church would be affected.
As a result of the topography, it is not possible to afford a view of both … the church and turbine in the same view and as such I would not consider that the medium range views of the Church are affected by the turbine.
Longer range views such as from The Begwyns would enable the church and the proposed turbine to be viewed together, and the rural character of the church in its landscape is duly noted. I would refer to Viewpoint 11 which illustrates the location of the turbine in the landscape. Given the distance, topography and vegetation between the proposed turbine and the church, and the trees surrounding the churchyard[,] I would not consider that the long range setting of the listed building would be affected by the proposal.
As for the suggestion that the development might affect the settings of scheduled monuments, she did not disagree with the findings of CPAT.
Did the Development Management Procedure Order 2012 require the county council to consult the Welsh Ministers?
"(1) Before granting planning permission for development which, in their opinion, falls within a category set out in the Table in Schedule 4, a local planning authority must consult the authority, body or person mentioned in relation to that category …".
Article 14(4) provided that where a local planning authority was required to consult any person or body before granting planning permission, it must give notice of the application to the consultee and must not determine the application until 14 days after either it or the applicant had given such notice to the consultee, whichever was the earlier. Article 14(5) stated that "[the] local planning authority must in determining the application take into account any representations received from a consultee". The "Description of Development" for the category of development in paragraph (k) in the table in Schedule 4 was this:
"Development likely to affect the site of a scheduled monument".
The "Consultee" was stated to be "The Welsh Ministers". The requirement to consult the Welsh Ministers would be discharged by consultation with Cadw. The interpretation provisions in Schedule 4 confirmed that, in the table, "scheduled monument" had the same meaning as in section 1(11) of the Ancient Monuments and Archaeological Areas Act 1979.
(7) "Monument" means …
(a) any building, structure or work, whether above or below the surface of the land … ;
(b) any site comprising the remains of any such building, structure or work … ;
(d) any site in Wales (other than one falling within paragraph (b) or (c) above) comprising any thing, or group of things, that evidences previous human activity; … .
(9) For the purposes of this Act, the site of a monument includes not only the land in or on which it is situated but also any land comprising or adjoining it which appears to the Secretary of State or the Commission or a local authority, in the exercise in relation to that monument of any of their functions under this Act, to be essential for the monument's support and preservation.
(10) References in this Act to a monument include references –
(a) to the site of the monument in question; …
(11) References in this Act to the site of a monument –
(a) are references to the monument itself where it consists of a site; and
(b) in any other case include references to the monument itself.
"(i) Development which has a direct physical impact on a scheduled monument.
(ii) Development likely to be visible from a scheduled monument and which meets one of the following criteria –
a) it is within a distance of 0.5 kilometres from any point of the perimeter of a scheduled monument;
b) it is within a distance of 1 kilometre from the perimeter of a scheduled monument and is 15 metres or more in height, or has an area of 0.2 hectares or more;
c) it is within a distance of 2 kilometres from the perimeter of a scheduled monument and is 50 metres or more in height, or has an area of 0.5 hectares or more;
d) it is within a distance of 3 kilometres from the perimeter of a scheduled monument and is 75 metres or more in height, or has an area of 1 hectare or more, or
e) it is within a distance of 5 kilometres from the perimeter of a scheduled monument and is 100 metres or more in height, or has an area of 1 hectare or more.
(iii) Development likely to affect the site of a registered historic park or garden or its setting;
(iv) Development within a registered historic landscape that requires an Environmental Impact Assessment; or
(v) Development likely to have an impact on the outstanding value of a World Heritage Site".
"6.5.1 The desirability of preserving an ancient monument and its setting is a material consideration in determining a planning application, whether that monument is scheduled or unscheduled. Where nationally important archaeological remains, whether scheduled or not, and their settings are likely to be affected by proposed development, there should be a presumption in favour of their physical preservation in situ. …
6.5.6 Local planning authorities are required to consult the Welsh Government on any development proposal that is likely to affect the site of a scheduled ancient monument. Scheduled monument consent must be sought from the Welsh Government for any proposed works to a scheduled ancient monument. … ."
"6.5.9 Local planning authorities are required to consult the Welsh Ministers on any development proposal that is likely to affect the site of a scheduled monument, or where development is likely to be visible from a scheduled monument and meets certain criteria. [Here there is a footnote – footnote 23 – which refers to article 14 of, and paragraph (l)(i) and (ii) of the amended table in Schedule 4 to, the Development Management Procedure Order 2012.] The local planning authority should inform applicants of the need to obtain scheduled monument consent for any works they propose which would have a direct impact upon the designated area. … ."
"15. … Planning authorities should be fully informed about the nature and importance of the archaeological site and its setting. They should therefore seek archaeological advice. In the case of a development proposal that is likely to affect the site of a scheduled ancient monument, local planning authorities are required to consult the Secretary of State (Cadw). … ."
and in paragraph 17, under the heading "… Preservation of Archaeological Remains in-situ":
"17. Where nationally important archaeological remains, whether scheduled or not, and their settings, are affected by proposed development there should be a presumption in favour of their physical preservation in situ i.e., a presumption against proposals which would involve significant alteration or cause damage, or which would have a significant impact on the setting of visible remains. … . "
"The surroundings in which an historic asset is experienced, its local context, embracing present and past relationships to the adjacent landscape."
An "historic asset" is defined as an "identifiable component of the historic environment", which "may consist or be a combination of an archaeological site, an historic building, or a parcel of historic landscape". In terms similar to the definition of "Setting" in the Cadw document, the definition of the "Setting of a heritage asset" in national planning policy for England in the National Planning Policy Framework ("the NPPF") is this:
"The surroundings in which a heritage asset is experienced. Its extent is not fixed and may change as the asset and its surroundings evolve. Elements of a setting may make a positive or negative contribution to the significance of an asset, may affect the ability to appreciate that significance or may be neutral."
Did the county council fail to perform the duty under section 66(1) of the Listed Buildings Act?
"(1) 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."
There is no statutory definition of "setting" for these purposes. However, the definition in the Cadw guidance is also relevant here (see paragraph 26 above).
"89. There is no definition of "setting" in this context, but it was common ground before me that it is a matter of judgment to be determined in visual terms, with regard being had to (i) the view from the monument towards the development (ii) the view from the development towards the monument and (iii) any other relevant view which includes both the monument and the development (an approach adopted in [Revival Properties]. In other words, the setting of a monument has to be considered "in-the-round"."
"The extent of the "setting" of a listed building … may mean something wider than just its curtilage, or just the land that can be seen from it. In practice, the question is not – as it is with "curtilage" – what is the boundary of the setting, but rather does a particular proposed development affect the setting of a listed building in the vicinity. The answer to this is likely to depend on the nature of the proposal as much as on that of the listed building. Thus the erection of a tall radio mast may affect the setting of a number of listed buildings, some a considerable distance from it; whereas the erection of a small shed in the garden of a listed house is likely to affect its setting only if it is reasonably close."
Lord Justice Irwin