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Cite as: [2015] EWHC 3435 (Admin)

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		Neutral Citation Number: [2015] EWHC 3435 (Admin)
		Case No: CO/2094/2015

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

27 November 2015

B e f o r e :

Lord Justice Lindblom
____________________

Between:

	Julia Martin	Claimant
	- and -
	Secretary of State for Communities and Local Government
	West Devon Borough Council
	Mr and Mrs Andrew Heyward	Defendants

____________________

Mr Richard Harwood Q.C. (instructed by Richard Buxton) for the Claimant
Mr Charles Banner (instructed by the Government Legal Department) for the First Defendant
Hearing date: 13 October 2015
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Lindblom:

In this case an inspector allowing a planning appeal concluded, for the reasons he gave, that the proposed development, a wind turbine, would not harm the settings of "heritage assets" – a scheduled ancient monument and two listed buildings. In refusing planning permission, the local planning authority had said that, "[on] the basis of the information submitted as part of the proposal", it was "not satisfied" that the development would not result in significant harm of that kind. The inspector did not say in his decision letter whether or why he found the information before him sufficient to enable him to conclude that there would be no such harm. Is his decision therefore unlawful?

By an application under section 288 of the Town and Country Planning Act 1990 the claimant, Mrs Julia Martin, challenges the decision of the inspector, Mr Alwyn Nixon, appointed by the first defendant, the Secretary of State for Communities and Local Government, allowing the appeal of the third defendants, Mr and Mrs Andrew Heyward, against the refusal by the second defendant, West Devon Borough Council, of their application for planning permission for the erection of a wind turbine on their land at Beckwell Farm, near the hamlet of Lifton in south-west Devon. Mrs Martin lives with her three children at Borough Farm, which adjoins Beckwell Farm. For the last eight years she has been running a successful camping business on her land – "Devon Yurt". She objected to the application for planning permission and opposed the appeal. The appeal was dealt with on the parties' written representations. The inspector's decision letter is dated 26 March 2015. Mrs Martin's application was lodged with the court on 7 May 2015. On 15 June 2015 her application for a protective costs order was refused by Dove J.. In his reasons for refusing that application Dove J. observed that "[it] is implicit in the Inspector's conclusions that he considered he had adequate and appropriate evidence on which to reach his decision and it would be difficult to contend that reasons were required in relation to that issue". The inspector's decision is defended by the Secretary of State. Neither the council nor Mr and Mrs Heyward have taken any active part in the proceedings.

The issues for the court

There are two grounds in Mrs Martin's application. They raise two closely related questions. First, did the inspector fail to provide proper and adequate reasons on a principal important controversial issue in the appeal: whether he had sufficient information on the likely effects of the proposed development upon the settings and significance of designated "heritage assets" (ground 1)? Secondly, did he fail to take into account government policy in paragraphs 128 and 129 of the National Planning Policy Framework ("the NPPF") and relevant guidance published by English Heritage (now Historic England), in considering whether he had enough information about heritage assets and the likely effects of the development upon them (ground 2)?

The statutory framework

Part I of the Ancient Monuments and Archaeological Areas Act 1979 contains various provisions relating to "Ancient Monuments". Section 1(1) requires the Secretary of State to "compile and maintain for the purposes of this Act … a schedule of monuments …". Under section 1(3), subject to a qualification relating to dwelling-houses, the Secretary of State may include in the Schedule "any monument which appears to him to be of national importance".

Section 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Listed Buildings Act") provides for the Secretary of State to compile a list of "buildings of special architectural or historic interest". Section 66(1) contains the "[general] duty as respects listed buildings in exercise of planning functions":

"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 a special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which is possesses."

In Barnwell Manor Wind Energy Ltd. v East Northamptonshire District Council [2014] EWCA Civ 137 the Court of Appeal endorsed and applied the jurisprudence in previous decisions of the House of Lords and the Court of Appeal bearing on a decision-maker's duties under sections 66 and 72 of the Listed Buildings Act – in particular, the decision of the House of Lords in South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141 and that of the Court of Appeal in The Bath Society v Secretary of State for the Environment [1991] 1 W.L.R. 1303. Sullivan L.J. confirmed (in paragraph 22 of his judgment in that case, with which Maurice Kay and Rafferty L.JJ. agreed) that in his view Glidewell L.J.'s judgment in the Bath Society case "is authority for the proposition that a finding of harm to the setting of a listed building is a consideration to which the decision-maker must give "considerable importance and weight"". He went on to say (at paragraph 28) that the general duty in section 66(1) "applies with particular force if harm would be caused to the setting of a Grade I listed building, a designated heritage asset of the highest significance …".

Relevant policy and guidance

Paragraphs 126 to 141 of the NPPF set out government policy for "Conserving and enhancing the historic environment". Paragraphs 128 and 129 state:

"128. In determining applications, local planning authorities should require an applicant to describe the significance of any heritage assets affected, including any contribution made by their setting. The level of detail should be proportionate to the assets' importance and no more than is sufficient to understand the potential impact of the proposal on their significance. As a minimum the relevant historic environment record should have been consulted and the heritage assets assessed using appropriate expertise where necessary. Where a site on which development is proposed includes or has the potential to include heritage assets with archaeological interest, local planning authorities should require developers to submit an appropriate desk-based assessment and, where necessary, a field evaluation.

129. Local planning authorities should identify and assess the particular significance of any heritage asset that may be affected by a proposal (including by development affecting the setting of a heritage asset) taking account of the available evidence and any necessary expertise. They should take this assessment into account when considering the impact of a proposal on a heritage asset, to avoid or minimise conflict between the heritage asset's conservation and any aspect of the proposal."

Paragraph 132 says that when the impact of a proposed development on the significance of a designated heritage asset is being considered, "great weight should be given to the asset's conservation …", and that "[the] more important the asset, the greater the weight should be". It points out that "[significance] can be harmed or lost through alteration or destruction of the heritage asset or development within its setting". Substantial harm to, or loss of, grade II listed buildings should be "exceptional". And such harm to, or loss of, designated heritage assets "of the highest significance", including scheduled monuments and grade I listed buildings, should be "wholly exceptional". Paragraph 134 says that "[where] a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal …". In the glossary of terms in Annex 2 to the NPPF the "Setting of a heritage asset" is defined as "[the] surroundings in which a heritage asset is experienced …". The definition of "Significance (for heritage policy)" is "[the] value of a heritage asset to this and future generations because of its heritage interest". The heritage interest "may be archaeological, architectural, artistic or historic". It is emphasized that "[significance] derives not only from a heritage asset's physical presence, but also from its setting".

The Planning Practice Guidance issued by the Government in March 2014 emphasizes in paragraph 009, under the heading "Why is 'significance' important in decision-taking?", that "[being] able to properly assess the nature, extent and importance of the significance of a heritage asset, and the contribution of its setting, is very important to understanding the potential impact and acceptability of development proposals …". In paragraph 013, under the heading "What is the setting of a heritage asset and how should it be taken into account?", it says that "[a] thorough assessment of the impact on setting needs to take into account, and be proportionate to, the significance of the heritage asset under consideration and the degree to which proposed changes enhance or detract from that significance and the ability to appreciate it". It goes on to say that "[the] contribution that setting makes to the significance of the heritage asset does not depend on there being public rights or an ability to access or experience that setting", and that "[this] will vary over time and according to circumstance".

When it was published in March 2012, the NPPF superseded PPS5, "Planning for the Historic Environment", issued in March 2010. However, the "PPS5 Planning for the Historic Environment: Historic Environment Planning Practice Guide" issued jointly by the Government and English Heritage, also in March 2010 remained extant until 25 March 2015, the day before the inspector's decision letter in this case was issued. In a section headed "Assessing the significance of a heritage asset", paragraph 58 said this:

"… [An] applicant will need to undertake an assessment of significance to an extent necessary to understand the potential impact (positive or negative) of the proposal and to a level of thoroughness proportionate to the relative importance of the asset whose fabric or setting is affected. Given the obvious burden of the process, local planning authorities will need to be careful to only ask the applicant for what is genuinely needed to satisfy the policy requirement. Although there is no limit on the sources of information that might be consulted or the exercises that might be carried out to fulfil that requirement, the most common steps an applicant might take are as follows. The first three steps will be undertaken in almost every case."

Eight steps were then set out. I need mention only the first three. The first was to check relevant formal records, including "statutory … lists, … the NMR, and other relevant sources of information that would provide an understanding of the history of the place and the value the asset holds for society"; the second, to "[examine] the asset and its setting"; the third, to "[consider] whether the nature of the affected significance requires an expert assessment to gain the necessary level of understanding". Under the heading "Assessing the implications of change affecting setting" paragraph 119 of the practice guide said that "[understanding] the significance of a heritage asset will enable the contribution made by its setting to be understood"; that "[this] will be the starting point for any proper evaluation of the implications of development affecting setting"; and that "[the] effect on the significance of an asset can then be considered and weighed-up …".

English Heritage's guidance document "The Setting of Heritage Assets", revised in June 2012, was also extant until 25 March 2015. It recommended, in section 4.2, a "broad approach" to assessing the implications of development proposals for heritage assets under the policy in PPS5, and suggested five steps "that apply equally to complex or more straightforward cases". The first step was to "identify which heritage assets and their settings are affected"; the second, to "assess whether, how and to what degree these settings make a contribution to the significance of the heritage asset(s)"; the third, to "assess the effects of the proposed development, whether beneficial or harmful, on that significance"; the fourth, to "explore the way maximising [sic] enhancement and avoiding or minimising harm"; and the fifth, to "make and document the decision and monitor outcomes". The guidance said that "normally this analysis should focus on a limited number of key attributes of the asset, its setting and the proposed development, in order to avoid undue complexity". It acknowledged that "[the] true effect of a development on setting may be difficult to establish from plans, drawings and visualisations, although the latter are becoming increasingly sophisticated".

On 25 March 2015 English Heritage published a series of advice notes under the title "Historic Environment Good Practice Advice in Planning". These replaced the PPS5 practice guide and the English Heritage guidance on the setting of heritage assets. There was no material change in the guidance bearing on the issues in these proceedings. Paragraph 12 of Note 2, "Managing Significance in Decision-Taking in the Historic Environment", acknowledges that "there are many … methods for assessing significance and impact upon it". Paragraph 12 of Note 3, "The Setting of Heritage Assets", recommends a "broad approach to assessment, undertaken as a series of steps that apply proportionately to complex or more straightforward cases".

The application for planning permission

Mr and Mrs Heyward's application for planning permission was submitted to the council on 13 November 2013. The proposed development was described as being the erection of a single wind turbine with a hub height of 24 metres and a tip height of 35 metres, and ancillary development.

In section 4 of the design and access statement submitted with the application, an analysis of "Landscape Visual Impact" was set out. It was explained in paragraph 4.11 that an assessment of the visual impact of the proposed turbine had been undertaken "utilising photomontages as guiding tools", based on photographs "provided by the client". The development's likely "landscape and visual impact", as shown in six photomontages in Appendix B, was described in a table. The first three photomontages are relevant to the issues in these proceedings. On each image there is a note, explaining that the camera used for the photographs had a focal length of 50 millimetres, and that "When viewed at a comfortable arm's length (approx. 500mm) [the] image is representative of the maximum field of view of clear vision".

Photomontage 1 showed a view from the grade II listed Downhouse, some 580 metres to the south-west of the site of the proposed wind turbine. The assessment said that "[this] viewpoint is taken from the Listed Building"; that the view showed the "undulating nature of the area, agricultural land and vegetation in the area"; that "[the] montage demonstrates that the turbine would be visible from this location", but that "due to the scale of turbine proposed and the distance to the listed building, the impact on the setting would be acceptable"; and that "[the] vegetation also ensures that the turbine would not be an isolated feature". The "Receptor Sensitivity", the "Magnitude of Effect" and the "Significance of Effect" were said to be, respectively, "High", "Medium" and "Moderate".

According to the table, photomontage 2 showed a view from a lane close to the scheduled ancient monument, Castle Park Camp, which is a late Bronze Age or early Iron Age ramparted enclosure about 1 kilometre to the south-east of the site of the proposed wind turbine. However, the caption on the images themselves described the relevant location as "Viewpoint 2: Listed Building", and the map in Appendix B showed the location as being some distance to the north-east of the site of the proposed turbine – seemingly Chillaton House, a listed building to the west of the village of Chillaton (as indicated in Image 10 in paragraph 4.37, a map showing the location of "Heritage Assets"). The assessment in the table said that "[this] view is taken from the public highway adjacent to the SAM"; that "[the] trees bounding the highway severely restrict any landscape views"; that "[the] photomontage demonstrates the turbine would not be visible from this location"; and that "[the] wireframe also indicates that in the absence of the existing mature trees the turbine would at this distance not pose a significant impact upon the landscape in views from this location". The "Receptor Sensitivity", the "Magnitude of Effect" and the "Significance of Effect" were said to be, respectively, "High", "Negligible" and "Negligible".

Photomontage 3 showed a view from The Round House, a grade II listed building, about 1.7 kilometres to the east of the site of the proposed turbine. The assessment here said that was "[this] viewpoint demonstrates the agricultural nature of the area and demonstrates that whilst there are areas of coppice that the openness of the landscape remains the overriding feature"; that "[the] turbine would be visible from this location however it would be viewed in relation to mature vegetation which ensures that it would not be an isolated feature"; and that "[the] turbine is also of suitable distance away not to have significant effects on the setting of the listed building". The "Receptor Sensitivity", the "Magnitude of Effect" and the "Significance of Effect" were said to be, respectively, "High", "Low" and "Moderate". The text (in paragraph 4.12) went on to say that "whilst there is some harm within the slight and moderate adverse categories, this does not necessarily equate to unacceptable harm and this change in vista must be balanced against policy expectations and guidance encouraging renewable energy".

Under the heading "Heritage Assets" the design and access statement said this (in paragraph 4.38):

"The closest listed buildings to the site are Downhouse and its barns, located 650m to the south west. All of these buildings are listed as Grade II and their setting is constrained to the more immediate area. The buildings are also located over 580m away, being separated by a number of agricultural fields, with substantial vegetation in between. Given the distance, intervening landscape features, the reasons for their listing and the constrained setting, it is considered that this small scale turbine would not have a significant impact on the setting of this heritage asset. The next nearest Listed Building is The Round House to the south of Chillaton. The Round House is early 19^th Century and was originally built as a toll house. Given the separation distance to the turbine of 1.6km and limited scale of the turbine, it is not considered that there would be a significant impact upon the setting of this listed building. In addition to the noted listed buildings there is a Scheduled Ancient Monument to the south east of the turbine. This monument includes a hilltop enclosure situated on a very prominent hill forming the watershed between the valleys of tributaries to the River Lyd and River Tamar. The monument survives as an oval enclosure defined to the north, west and partially to the east by a ditch and bank and to the south and partly to the east by a distinct lynchet. Again given the significant separation distance of over a kilometre, intervening vegetation, scale of turbine and topography it is not considered that there would be any distinguishable impact upon the setting of this heritage asset."

English Heritage's objection

English Heritage objected to the planning application in a letter dated 15 January 2014. In the "Summary" of their concerns they said that "contrary to national planning policy, the application … has not demonstrated that the proposal can be achieved without harmful impacts on heritage assets, or that any harm would be justified or outweighed by any benefits in the public interest". They therefore recommended that the council "either refuses the application, or defers determination and requests the applicant to provide the required additional information", but that if the application was determined "as it currently stands" it should be refused.

Under the heading "Significance of affected heritage assets" the letter emphasized that "[as] a statutorily designated heritage asset of highest significance, Castle Park Camp Scheduled Monument has high sensitivity to effects of new development on its setting". It expanded on the significance of the camp as a heritage asset:

"… Castle Park Camp (designated as 'Hilltop enclosure known as Castle Park Camp, 720m north west of Pomphlett' …) lies approximately 1000 metres south of the application site. The Camp is a rare example of a Late Bronze Age or Early Iron Age single-ramparted enclosure, one of only around 25 to 30 examples known nationally, usually sited on hilltops and probably originally used as stock enclosures or for the storage or redistribution of agricultural produce. The majority of these sites are in the chalk downlands of Wessex and Sussex, and in the Cotswolds; this example is a rare outlier in Devon. In view of the rarity of these monuments and their importance in understanding Bronze Age and Iron Age society, all examples with a sufficient degree of preservation are regarded as of national importance and are designated as scheduled monuments.

The relative rarity of this kind of fort, and the quality of Castle Park Camp's preservation, its potential archaeological evidence and its still legible landscape context and setting, give the monument high heritage significance. With regard to landscape setting, the fort was built on a very prominent hill overlooking the valleys of the rivers Lyd and Tamar. The Camp is notable for its prominent position and clear relationship to the surrounding topography, and for its surviving earthworks bank and ditch, which survive best on the west and north sides where there are entrance gaps; the north side with its entrance gap faces towards the application site. Also relevant is the relationship of the Camp to the later surrounding settlement pattern and its heritage assets, as the fort continued to form a significant feature in the landscape during the centuries when the present pattern of villages, farms and agricultural landscape was developed. These factors increase the heritage significance of the monument, and also (importantly in relation to the present application) increase the contribution and significance of its landscape setting, particularly its relationship to the areas of the north (the direction of the nearby application site).

It is clear therefore that the topographical location and landscape setting of Castle Park Camp scheduled monument, and its physical and visual relationship to its surroundings, is important to its heritage significance and to an understanding and appreciation of the monument and of its relationship with the landscape and with other historic features in the area. There is potential for the proposed development to adversely affect primary views … to and from [the] monument, and thus harm its setting and significance."

In a section headed "The application and assessment of heritage impact of the development" the letter continued:

"With an application for development of this nature we would normally expect to see proper assessment of potential impacts on setting, with sufficient information and illustration included in the application to enable an assessment of impact on the setting and significance of affected heritage asset(s). This should be based on a reliable assessment of the visibility of the turbine (normally indicated by maps showing Zones of Theoretical Visibility) and illustration and assessment of views of the development from the heritage asset, and views from 'third points' taking in both the heritage asset and the proposed development. Assessment of setting can include, but should not be limited to, places accessible to the public, as assessment of impact on setting should take in the whole of an asset's setting irrespective of current public accessibility.

…

In this intimate rural landscape, wind turbines will form a visually intrusive built element very different in character to the present agricultural landscape, and as such will potentially have a visually distracting effect in the setting of any designated heritage assets in view. The impact would be exacerbated by the fact that the proposed turbine, contrary to claims in the Design and Access Statement …, would be an isolated hillside feature, visually separate from the farmstead.

…

The application fails to properly assess the significance of Castle Park Camp and the contribution made by its setting. Despite this omission the D&AS nevertheless claims (para 4.38) that the development would have 'no distinguishable impact' upon the setting of the Camp. However, the viewpoints and illustrations provided in the present application do not cover heritage assets, and no evidence is provided to support its claims about lack of impact on Castle Park Camp or other heritage assets."

Describing English Heritage's "position", the letter went on to say that the proposal failed to satisfy the policy in paragraph 128 of the NPPF:

"The degree of harm to heritage assets that would result from the development is not possible to determine in detail because of the lack of information and assessment in the application. However, on the basis of the material provided, the proposed development could potentially have a harmful impact on the setting and heritage significance of Castle Park Camp Scheduled Monument, and may also have a harmful impact on other designated and undesignated heritage assets in the area. No proper evidence has been provided to demonstrate otherwise."

Therefore, the council would be "justified in refusing the application on the grounds that the proposal fails to satisfy national policy and guidance, or in deferring determination and requesting additional information on the impact of the proposal on the setting and significance of affected designated heritage assets".

Attached to English Heritage's letter was their South West Office's guidance note, "Recommended information for renewable energy generation development proposals", published in May 2013. This document advises that an assessment of the likely impacts on heritage assets should "demonstrate that there are no unacceptably harmful impacts on setting of heritage assets within view". Photomontages "should include views with heritage assets and the proposed development accurately scaled in the same view". The use of a 75 millimetre lens is recommended. The assessment is expected to include views from the historic assets showing the proposed development, and "from other points which incorporate both the development site and the historic assets".

On 17 January 2014, in an e-mail to Mr and Mrs Heyward's planning consultant, Mr Kevin Robinson, English Heritage's Ancient Monuments Inspector, Mr Keith Miller, restated English Heritage's position. He said that "[statements] in an application about level of impact (in this case visual impact on settings of heritage assets) require supporting evidence (usually a map showing ZTV, with specific views illustrated by photomontage and/or wireframe views showing the turbine in relation to the landscape and heritage assets". He added that "whilst the potential impact on the SAM is of special concern to [English Heritage] … , there may also be harmful impacts on other designated and undesignated heritage assets". He concluded by saying that "[at present] there is insufficient information and evidence in the application to be able to determine the extent or level of harm on heritage assets, and claims in the application are unsubstantiated by evidence", and that "[this] lack of sufficient information needs to be remedied in order … for the application to meet the criteria of national policy, and to enable an informed decision to be made on the proposal".

Dartmoor National Park Authority's objection

In a letter to the council dated 22 January 2014 Dartmoor National Park Authority objected to the proposal, saying that the development would "harm the wider landscape and setting of Dartmoor". In the context of "[the] conservation and enhancement of the cultural heritage of the National Park" it said it was clear that "the impact of the turbine on the setting of the Grade I Listed Brent Tor church (St Michael de Rupe Church) will be substantially significant". The church was "an important heritage asset and the most prominent landmark on the western edge of the National Park". The wind turbine would be "very dominant when viewed from the Church". The "significance of a heritage asset can be harmed or lost by development within its setting", and "in this case the impact on the setting of the Grade I church will be substantial".

Mrs Martin's objection

Mrs Martin objected to the proposed development in a letter to the council dated 8 December 2013. In that letter she expressed her concerns about the possible visual impact of the wind turbine and the noise it might generate. She said it "would have a large impact on [her] luxury camping business both visually against such a beautiful landscape … and by the sound disturbing the quiet countryside particularly at night when … guests will be attempting to sleep under canvas and hence will have little to shield them from the sound of the swinging blades of the turbine …".

The council's decision

The council's Planning and Licensing Committee considered the proposal at its meeting on 4 March 2014. The planning officer's report to committee summarized the responses to consultation, including the objections of English Heritage and Dartmoor National Park Authority. Dealing with "[the] impact of the proposed development on the character and appearance of the landscape", the officer advised the committee that "[the] proposed turbine will be visible from Brentor church, but is considered to be sufficiently small and distant from it not to have an adverse impact upon views from it". As for "[the] impact on the significance of designated heritage assets", he referred to the "extended comments" of English Heritage, acknowledged that "the heritage significance of the hilltop enclosure [at Castle Park Camp] is not questioned", reminded the members that "there is no public access to the monument and it is separated from the proposed turbine by a network of rural roads enclosed by high Devon banks", and concluded that "[the] impact would be limited". The listed building nearest to the site, Down House farm and its barns, was "viewed against the backdrop of Ramsdown Plantation and mature trees". The officer concluded that the development would not "impact upon the settings of these listed buildings". He recommended that planning permission be granted.

Rejecting that recommendation, the committee resolved to refuse planning permission. The council's decision notice, dated 4 March 2014, stated two reasons for refusal. The first said that the proposed development would harm "the rural landscape of the Lew and Lyd Valleys and Dartmoor hinterland". The second was this:

"On the basis of the information submitted as part of the proposal, the LPA are not satisfied that the proposed wind turbine would not result in significant harm to the setting of nearby heritage assets, namely;

Downhouse, a Grade II listed building

Castle Park Camp, a Scheduled Ancient Monument

Brentor Church, a Grade I listed building

These concerns are considered to outweigh the economic benefits of the development. The proposal is as such contrary to policies SP1, SP3, SP17, SP18 of the West Devon Borough Core Strategy 2011 and policy BE3 of the West Devon Borough Local Plan Review 2011 and provisions of the NPPF."

The parties' written representations

Mr and Mrs Heyward appealed against the council's decision on 23 April 2014. In the written representations submitted for them five additional photomontages were provided – numbered 7, 8, 9, 10 and 11. These photomontages had been prepared in the same way as the previous ones, as the notes on them explained.

The additional photomontage relevant to the setting of Downhouse as a listed building, was photomontage 11. The relevant passage of the written representations, in paragraph 6.9, said:

"… The additional photomontage pack includes a viewpoint (Photomontage 11) taken from the nearest [publicly] accessible land to the house, with a view toward the turbine location. The photomontage and the wireframe indicate that the turbine would not be visible from the property. With the extent of vegetative cover and the separation distance between the two it is considered that there would be limited visual interaction between them and that the listed building would continue to be appreciated in its setting as it currently exists."

The new photomontage relevant to the setting of Castle Park Camp was photomontage 7. Paragraph 6.10 of the written representations referred to the distance between the camp and the site of the proposed wind turbine, and said:

"… At this separation distance along with the intervening vegetation and landform it is not considered that the proposed turbine would be particularly prominent in views. Photomontage 7 … shows the view from the public highway adjacent to the site looking toward the turbine. The turbine is partially screened by the boundary vegetation and is not readily visible in the view. The slender nature of the turbine and the limited height proposed serve to ensure that where visible it would not appear unduly dominant or result in any significant impacts in detracting from the open aspect of the views from and of the scheduled ancient monument. It is considered that the photomontage image supports the views of the Planning Officer in his committee report …".

The photomontages relevant to the setting of the church at Brentor were photomontages 8 (a view from the road beside the church), 9 (a view from outside the church, about five kilometres from the site of the proposed turbine) and 10 (a view from the West Devon Way public footpath near Black Down). The relevant passage in the written representations (in paragraph 6.11) quoted the conclusion of the planning officer in his report, and said:

"… The photomontage (8) taken from the public highway adjacent to the church shows that the high banks and dense vegetation preclude any views taking in the turbine. From the grounds of the church, situated on higher ground, [as is shown in photomontage 9,] long distance views are available. However at this distance to the turbine and due to the limited size, scale and massing of the turbine, it would not be readily appreciable and would not materially alter the views out from the church grounds."

The conclusion (in paragraph 6.12) was that this new material supported the planning officer's view that the proposed development would "not have any notable impact" on the settings of any of those three heritage assets.

In its written representations the council pointed out – in section 5.0, "The Council's Case" – that Mr and Mrs Heyward had been told of English Heritage's request for "further information to assess the impact on heritage assets", but that their agent had asked it to determine the application on the basis of the information already provided. It stressed that "the ability of the public to appreciate a heritage asset is one, but by no means the only, factor to be considered when assessing the contribution that setting makes to the significance of a heritage asset". In its opinion "the visual impact assessments [were] not complete, considering merely the views outward over the development site". The wind turbine would be "very visible from [the grade I listed] Brent Tor Church …". Commenting on Mr and Mrs Heyward's grounds of appeal – in section 6.0, "Observations Upon Grounds of Appeal" – it said that they had "failed to assess the significance of the Heritage Assets or the impacts of the development on the significance of such assets", and, in particular, had "failed to assess the significance of the setting of the Grade I Listed Building within the National Park …". In section 7.0, "Conclusion(s)", it said that officer's approach had been "at odds with case law and the Practice Guide 2012 produced by English Heritage". Then it said this:

"… The proposal … would have a harmful impact on the scheduled monument of Castle Park Camp, and the significance of the setting [sic] of other aforementioned Heritage Assets.

The appeal statement fails to provide sufficient information in relation to potential impacts of the proposed development on the setting and significance of designated heritage assets, and has not demonstrated that the proposal can be achieved without harmful impacts on heritage assets[.]"

English Heritage, though consulted on the appeal, made no further representations at this stage. In his witness statement of 26 June 2015 (in paragraph 5) Mr Miller makes a number of comments on the additional photomontages provided to the inspector on behalf of Mr and Mrs Heyward. These were not before the inspector and, as the parties agree, they can have no bearing on Mrs Martin's challenge to his decision.

In their written representations, which are undated, Dartmoor National Park Authority referred (in paragraph 8) to the church at Brentor as "an important heritage asset and the most prominent landmark on the western edge of the National Park". They said that the proposed wind turbine would be "very dominant when viewed from the Church"; that the impact on its setting would be "substantial", and that "for this reason permission should be refused".

In a letter to the Planning Inspectorate dated 28 May 2014 Mrs Martin explained why she was objecting to the proposal. She pointed out that the site of the proposed development was close to Ramsdown, the highest point between Dartmoor and Bodmin Moor, claimed that "a wind turbine sited here will have an adverse effect on a wide area of natural landscape", and went on to say this:

"Ramsdown has a historic site at Castle Farm, English [Heritage] have already questioned the wind turbine application at Beckwell farm due to the impact it will have upon this ancient site. A few miles to the West is the river Tamar, the Tamar valley being an area of Outstanding Natural Beauty. A few miles to the East is Dartmoor National Park with its protected landscape, with our nearest access point to Dartmoor being Brent Tor with its ancient church sitting on top of Brent Tor. Brent Tor is a prominent local landmark and visited all year round by both local people and visitors to the area enjoying the far reaching views from its summit. The turbine would be very close to and dominate this view from Brentor[.]"

Mrs Martin concluded her representations by saying that her business was "under threat" from the proposed development.

Several other local residents and the Milton Abbot Grouped Parish Council opposed the appeal on grounds including concerns about the likely effects of the development on the landscape and on the settings of heritage assets.

The inspector's site visit

The inspector made his site visit on 13 January 2015. Mrs Martin's claim form states, in paragraph 30, that he was accompanied by Mr and Mrs Heyward and an officer of the council, "but not by local residents, who asked on the day to accompany [him] but were refused", that he went on to Castle Park Camp, but that when he was at Borough Farm Mr Heyward "pointed to the wrong field when trying to identify where the turbine would be erected", and that "Mrs Martin had to correct him". This version of events is supported in Mrs Martin's witness statement of 21 May 2015. She says, in paragraph 15 of that witness statement, that she told the inspector that the field in which the wind turbine was to be erected was not the one he had gestured towards, but "the field above that, right on the horizon" – which he accepted once he had looked at his map.

The inspector has given his own account of what happened on the site visit, in a witness statement dated 28 September 2015. He confirms, in paragraph 3 of his witness statement, that he "visited the proposed site of the turbine, [Mrs Martin's] property, the Castle Park Camp, the locations of the listed buildings of Brentor Church and Downhouse and various other vantage points in the surrounding area", and that the objectors were made aware of his intention to do this. He says, in paragraph 4, that it was only when he went to the site of the proposed turbine that local residents were unable to go with him, because Mr and Mrs Heyward would not allow them to come on to the land. He "visited the location of Castle Park Camp, to which there is no public right of access but in respect of which [an] arrangement had been made for [him] to visit, in the company of [Mr and Mrs Heyward] and the Council's representative". Nobody else asked to attend that part of the site visit (paragraph 5). As to what happened when he went to Borough Farm, he says this, in paragraph 7:

"Although [Mr and Mrs Heyward] may have had a little difficulty in pin-pointing the exact location of the turbine site as seen from [Mrs Martin's] property, this did not prevent me establishing the site's location, seen from this and all other locations I visited, to my satisfaction."

The decision letter

In his decision letter the inspector identified the "Main Issues" in the appeal, in this way:

"2. The main issues are the effect of the proposal on the character and appearance of the surrounding landscape, including as regards its location in relation to the Dartmoor National Park; its effect on the settings of designated heritage assets; and whether any harm in these respects is outweighed by other material considerations including the renewable energy benefits associated with the development."

The inspector outlined the "Policy Background" in paragraphs 3 to 6 of his letter. In paragraph 6 he summarized relevant government policy on proposals for renewable energy, and on development affecting heritage assets in paragraphs 132 to 136 of the NPPF.

On "Landscape and visual impacts" he said in paragraph 7 that "[an] assessment of the proposal's resulting landscape and visual impact has been carried out, based on established practice guidelines and including photo-visualisations and wireframes from a number of representative viewpoints". The extent of this exercise was, he said, "adequate in the light of the comparatively modest height of the turbine …". He considered the likely effects of the development on views from Brentor:

"13. The photo-visualisations and wireframes submitted in connection with the proposal include material for viewpoints at Brentor Church (5km away from the site and at the Park's closest point) and from an elevated location on the West Devon Way near North Brentor (7.2km away). From my observations these viewpoints are representative of the area of maximum visual impact for the National Park and receptors within it. The accuracy and adequacy of this material has not been challenged. It demonstrates that, at the distances involved, the turbine would only have a marginal visual effect on the panoramic vistas gained in vistas gained in views out from elevated locations within the western fringes of the Park. Any potential undue prominence could be mitigated by sensible control of the colour and reflectivity of the turbine. …".

The inspector concluded in paragraph 14 that "the turbine would not have a harmful impact on the setting of the National Park, and so would not harm its special qualities or the purposes of its designation, including its understanding and enjoyment by the public". He addressed Mrs Martin's objection specifically:

"17. The occupier of Borough Farm also runs a holiday "glamping" business from the property. Yurt accommodation is provided for this purpose in the small paddocks near the buildings. I recognise that those staying in the accommodation will value the attractive rural setting. However, whilst the turbine would be visible from these areas, it would be positioned around 750m away and located peripherally in relation to the principal views obtained towards Dartmoor and Brentor. Mature trees would also help to screen the turbine's presence. I do not consider that the turbine would be likely to dissuade visitors from staying at this location."

The inspector's conclusions on "Landscape and visual effects", in paragraph 19, were that the development "would not give rise to unacceptable harm to the character or appearance of the area …", and "would not cause material harm to the setting of Dartmoor National Park or adversely affect the Tamar Valley AONB".

In the next section of the decision letter the inspector assessed the "Effect on heritage assets". He began by identifying the three designated heritage assets to which the council had referred in its decision notice:

"20. In relation to this reason for refusal the Council refers to effects on the settings of Castle Park Camp, a scheduled ancient monument (SAM); Brentor Church, a Grade I listed building; and Downhouse, a Grade II listed building. There is no issue of direct change or loss in relation to any of these heritage assets or their features of particular interest."

The inspector considered Castle Park Camp, its significance as a heritage asset, its setting, and the likely effects of the development upon its significance and setting in paragraphs 21 and 22:

"21. Castle Park Camp is located approximately 1km to the south of the site. The Camp is an example of a Late Bronze Age or Early Iron Age single-ramparted enclosure, one of only 25 or 30 examples known nationally and a rare outlier in Devon. These sites are usually located on hilltops and were probably used originally as stock enclosures or for the storage or redistribution of agricultural produce. English Heritage has commented that the relative rarity of this kind of fort and the quality of Castle Park Camp's preservation, its potential archaeological evidence and its still-legible landscape context and setting give the monument high heritage significance.

22. The context of the SAM comprising its hilltop position and relationship to the valleys associated with the Lyd and Tamar rivers is important to understanding and appreciating its form and function. Also relevant is the relationship of the camp to the later surrounding settlement pattern and its heritage assets, as the fort continued to form a significant feature in the landscape during the centuries when the present pattern of villages, farms and agricultural landscape was developed. However, having regard to all of these factors, I do not consider that the proposed turbine would impinge materially on the setting of the SAM. Due to the folds of the land it would not be highly visible from the enclosure itself; only the upper part of the turbine would be seen, and then only over the intervening shoulder of the hill. Its presence would not interfere with its relationship to the valleys running northwards the Lyd or the Tamar to the south. Nor would the turbine interpose or impinge on any significant views towards the Camp, or detract from the appreciation and understanding of its presence in the landscape. I conclude that the setting and significance of this heritage asset would not be harmed by the proposal."

The inspector then turned to the two listed buildings about which concerns had been expressed. He reminded himself of his statutory duty as decision-maker. He then went to on to consider the grade I listed church at Brentor, its significance, its setting, and the likely effects of the proposed development:

"23. Where development would affect a listed building or its setting, Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 imposes a statutory duty to 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. As such, considerable importance and weight attaches to this matter. The Grade I listed Church of St Michael de Rupe at Brentor is an important heritage asset and a highly prominent landmark on the western edge of the Dartmoor National Park. It has a striking position on top of a rocky outcrop and commands wide views across the landscape to the west and north, including towards the turbine site. The church's pre-eminence in the landscape is an important aspect of its religious, social and historical significance through time, and an important element of its setting. Views towards the church and views out from the site are relevant to the heritage asset's setting and significance.

24. The turbine site lies 5km from the church. No evidence has been presented to the effect that the turbine would impinge on or distract from any significant view of the church from within the surrounding landscape. My own observations in the field confirm that the turbine's position in the landscape relative to the church and distance from it are such that there would be no harm to the church's setting in these terms.

25. From the church itself, a primary aspect of its setting is its dominance over the surrounding landscape and the human activity it contains. Although there would be unobstructed views towards the turbine, the submitted photo-visualisation and wireframe representation confirm that at a distance of 5 km the turbine at 35m blade tip would comprise a very small element within the wider scene. Its noticeability would be dependent on light and atmospheric conditions at the time, but also on its detailed colour and finish which can be controlled by condition. To the extent that the turbine would be visible in some conditions, I consider that given its distance and position on a lower shoulder of the broad mass of Ramsdown, and subject to control of colour/finish, it would not compete with the church for pre-eminence in the landscape or distract from the appreciation and understanding of this.

26. From the above I conclude that the proposal would have no material effect on the setting of the Grade I listed Church of St Michael de Rupe, and that the setting and significance of the heritage asset would not be harmed and would thereby be preserved."

Finally in this section of his letter, the inspector considered Downhouse, again focusing on significance, setting, and the effects of the proposed development:

"27. Downhouse is Grade II listed as an attractive early C19 farmhouse with an unusual floorplan. It is located approximately 650m to the west of the site, at a slightly lower level on the northerly-facing slope of Ramsdown. At my site visit I observed that Downhouse is oriented away from the turbine site. Given its separation from Downhouse in the landscape, the turbine would not impinge on its setting within fields on the northerly slope of Ramsdown, below Ramsdown Plantation. The professional officer assessment on the application was that there would be no impact on the setting of Downhouse. I agree with that assessment. Although reason for refusal 2 states that the local planning authority is not satisfied that the turbine would not result in significant harm to the setting of Downhouse, no evidence has been produced by the Council pointing to any potential effect on its setting. I am satisfied that the setting of Downhouse would be preserved and that there would be no harm to the significance of the designated heritage asset."

In the light of those conclusions the inspector found in paragraph 28 that the proposal satisfied the requirements of relevant development plan policy.

Having recognized the "Renewable energy benefits" of the proposed development in paragraphs 29 and 30 of his letter, and having found, in paragraphs 31 to 33, that no "Other matters" weighed against its being approved, he proceeded to his "Overall balancing" in paragraphs 34 and 35. His relevant conclusions were these:

"34. … The proposal would not harm the setting of the Castle Park Camp SAM, the setting of Brentor Church or the setting of Downhouse. Whilst I am conscious of the statutory requirement to have particular regard to any harm, substantial or otherwise, that would be caused by a development to the setting of a listed building, my finding in this case is that there would be no harm and that the settings of the designated heritage assets in question would thereby be preserved. In respect of these matters the proposal meets the requirements of development plan policies SP18, BE3 and BE7."

Having regard to "the balance of considerations" in the appeal, he concluded in paragraph 35 that "the proposal essentially complies with development plan policies SP1, SP3, SP11, and NE10", and "is also consistent with the development principles set out in the NPPF".

The inspector therefore allowed the appeal and granted planning permission. He imposed five conditions, one of which, condition 5, controlled "the colour and finish of the turbine", to ensure – as he explained in paragraph 36 – that "the turbine's potential visual impact is adequately mitigated in longer range views from Brent Tor and Dartmoor National Park".

Did the inspector fail to deal lawfully with the issues relating to heritage assets?

The two grounds of Mrs Martin's challenge largely depend on each other and are best dealt with together (see paragraph 3 above).

The main grievance is in ground 1: that the inspector failed to give proper and adequate reasons for his decision, because he did not grapple with the question of whether he had enough information about heritage assets and the likely effects of the development on their settings and significance. The related complaint in ground 2 is that he failed to take into account relevant policy and guidance.

The approach the court will take to an allegation of inadequate reasons in a decision letter is familiar. The relevant principles were referred to in the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No.2) [2004] 1 WLR 1953 (in paragraphs 24 to 36), and drawn together by him in this way (at paragraph 36):

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need only refer to the main issues in the dispute, not to every material consideration. … Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."