England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/03/2016

C M G Ockelton :

Introduction

1. At Upper Pengarth, Llandeilo Graban, near Builth Wells in Powys, is an agricultural holding farmed by Mr Bagley. He has for some time been proposing to erect a wind turbine on his land in order to provide a secure and sustainable power source for the farm, releasing surplus electricity to the national grid. The farm is in hilly country and the proposed site of the turbine is on the side of a hill, called 'The Garth', but it will be near the top: the top of the turbine will be above the top of The Garth. The height of the proposed turbine to the nacelle is 30.1 metres, and the height to the tip of a blade rising vertically from the nacelle is 41.8 metres.
2. Planning permission for the turbine was granted by Powys County Council, the defendant, as the local planning authority, on 21 May 2015. The grant was in response to an application by Mr Bagley, who is the interested party in these proceedings, and whom I shall call 'the applicant'. The claimant, who seeks the quashing of the planning permission, is Mr Williams, a local resident who operates leisure activities in the area.
3. The applicant has made two applications for planning permission for a wind turbine. The first was granted on 4 December 2013. It too was the subject of proceedings in this Court in which Mr Williams was the claimant. The claim was settled because the defendant agreed that in making its decision it had failed properly to consider all limbs of relevant policy and in particular had failed to consider the cumulative effect of the development proposed by Mr Bagley together with other similar applications, from other applicants, of which it had notice. The planning permission was thus quashed by consent. The applicant did not proceed with that application (apparently at the defendant's request) but made a new application. Like the former application, it was the subject of objections from local residents, expressed in writing and by oral representation at the meeting of the defendant's planning committee. But, as I have said, planning permission was granted.
4. This claim was filed on 2 July 2015. Permission was granted on the papers by Cranston J, the date of his order being 19 August 2015. He classified the claim as an Aarhus claim as requested, and observed that 'the impact of the turbine on heritage assets deserves an airing in court'. Shortly before the hearing the applicant, who had not put in an acknowledgment of service, sought permission to take part by skeleton argument and short oral submissions. There being no objection, I granted him permission at the hearing.
5. One factor in the claim, which was mentioned in the skeleton argument of Mr Harwood QC for the claimant but not pursued with any vigour before me, relates to the precise siting of the turbine. Permission was originally sought on the basis that the defendant would allow 'a degree of micrositing … to the extent of a 25-50 m radius from the reference point stated'. Mr Harwood noted that the 'precise siting is uncertain' meaning that the impact of the development was uncertain, because as the site is on a hill relatively small changes in location might have a considerable impact on visibility. The position is, however, that the grant of planning permission is in relation to a specific site without reference to micrositing, and is subject to the condition of the defendant's approval of the exact location and a requirement of strict compliance with the arrangement so approved.
6. The claimant puts forward three grounds for saying that the decision to grant planning permission was unlawful. The first is that in making its decision the defendant failed to have regard to the effect of the proposed development on a listed building. The second is that the defendant failed to consult CADW. The third is that the defendant failed to appreciate that the proposed development would affect scheduled ancient monuments in addition to those the effect on which it did take into account.

Ground 1

The issue

7. Llanbedr church, which is listed grade II*, is about 1.5 km from the site, although the bulk of The Garth lies between. The applicant's Planning, Design and Access Statement, which formed part of the application for planning permission, recognised the position of the church as being within 2 km of the site, but wrongly described the listing as grade II. That Statement noted that the ZTV (Zone of Theoretical Visibility) analysis indicated that all the heritage assets listed, including Llanbedr church, 'may be afforded views of the blade tip and at times the nacelle' of the turbine, but 'potential impacts are likely to be minor at most'. It pointed out that ZTV maps tend to overestimate visibility because they ignore natural or built features, representing only the lie of the land. It asserted that 'the effect on the views and settings of the listed structures and monuments is considered to be slight', and pointed out that the defendant had previously agreed with that analysis in granting the previous planning consent.
8. The defendant Council's Built Heritage section did not make any input to the process of consideration of the planning application, and the planning officer's assessment on cultural heritage made no reference to the church or to any listed buildings, although the report refers to the Council's policy ENV 14 on listed buildings.
9. Before the grant of planning permission nobody appears to have suggested, either in relation to the present application or its predecessor, that the church or its setting would be affected by the development, although there were generalised comments about the effect of the development on heritage assets. When the issue was raised after the grant of planning permission, the Council's Built Heritage Officer visited the locality and wrote a report dated 30 July 2015. She did not consider that the turbine would be visible from the church or the churchyard, or that 'the setting of [sic: 'or' may have been intended] the short term views of the church' would be affected'. She said that there was no medium range view that could encompass the church and the turbine, and so the medium range views of the church would not be affected by the turbine. It being now said that both church and turbine would be visible from the Begwns, a well-known beauty spot about 2km from the church, she considered that point but said that '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'. In an email of 27 July 2015 the Clwyd-Powys Archaeological Trust (CPAT) said that 'there are no significant visual effects' on the church.

Statute and policy

10. Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides that

"In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority … 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."

11. In East Northamptonshire DC v Secretary of State for Communities and Local Government [2014] EWCA Civ 137 Sullivan LJ reminded himself that 'preserving' in this context means 'doing no harm to' (South Lakeland DC v Secretary of State for the Environment [1992] 2 AC 141) and after a further review of the authorities held at [24] that "Parliament in enacting s 66(1) did intend that the desirability of preserving the settings of listed buildings should not simply be given careful consideration by the decision-maker for the purpose of deciding whether there would be some harm, but should be given 'considerable importance and weight' when the decision-maker carries out the balancing exercise." Thus, the particular duty under the section has a role both in identifying any harm and in weighting the balance to be struck between the harm and the desirability of the development. The assessment of whether there is likely to be harm to the setting of a listed building is a matter for the decision-maker's own planning judgment: R (Forge Field Society) v Sevenoaks DC [2014] EWHC 1895 (Admin) at [49], [50] and [54]. So when there has been a proper investigation of the possibility of harm and none has been found, the officer's report does not need to go further than that: R (Carnegie) v Ealing LBC [2014] EWHC 1895 (Admin) at [58] (a permission decision but clearly entitled to the highest respect).
12. In the Powys Unitary Development Plan, paragraph 4.5.21 states that "When considering proposals for development the presumption will be in favour of the preservation of listed buildings and their settings and permission will only be granted where a strong case can be made for doing so." Policy ENV 14 of the Plan reads as follows:

"Proposals for development unacceptably adversely affecting a listed building or its setting will be refused. In considering proposals for development of a listed building and its setting, account will be taken of the following:

1. The desirability of preserving the listed building and its setting;

2. The importance of the building, its intrinsic architectural and historic interest and rarity;

3. The effect of the proposals on any particular features of the building which justified its listing;

4. The building's contribution to the local scene and its role as part of an architectural composition; … and

7. The need for proposals to be compatible with the character of the building and its surroundings and to be of high quality design, using materials in keeping with the existing building."

Submissions

13. Mr Harwood's submission is that the defendant failed to carry out the duty imposed by s 66(1). There is no evidence that before the grant of planning permission the council considered the effect of the development on the setting of Llanbedr church. The only actual consideration of the issue is that made in response to the claimant's pre-claim correspondence and claim, and as a defence to the claim or justification of the decision that material should be treated with the scepticism indicated by the judgment of Pill LJ in R (Carlton-Conway) v Harrow LBC [2002] EWCA Civ 927. Besides, the post-decision view of CPAT that there are no significant effects is not a view that there are no effects, and the Council's Historic Buildings Officer's statement that although from a 2km distance it would be possible to see both the church and the turbine there would be 'no effect' should be treated as not credible. Mr Harwood also raises issues about the accuracy of post-decision wireframe drawings apparently supposed to justify the view the defendant now takes on this issue.
14. Ms Parry submits that before planning permission was granted no consultee or third party raised any concerns about the impact of the turbine on the church, either that the turbine would be visible from the church or that there were any important or significant views that would encompass both turbine and church. The applicant's Design and Access Statement had said that the turbine might be visible from the church, not that it would be; but there was in fact no good reason for thinking that it would be. The defendant and its officers were entitled to accept that that was the case. After the decision that position was repeated in the Built Heritage Officer's statement. This, submitted Ms Parry, is not a case where the subsequent material attempts to excuse or correct an error: the subsequent statement simply confirms the pre-existing position.
15. So far as concerns views encompassing the turbine and the church, the defendant accepts that the two may be visible from the Begwns, but the conclusion, admittedly post-decision, is that there will not be an impact. The defendant was entitled to exercise its planning judgment in relation to the evidence before it at the date of the decision, and nothing argued or produced since the decision showed that the judgment was at fault.
16. Ms Parry also relies on s 31(2A) of the Senior Courts Act 1981 in relation to this and the other grounds.
17. For the applicant, Mr Corbet Burcher explains (by a witness statement) the provenance of the post-decision wireframe diagrams. He points out that the photograph now produced by the claimant to demonstrate the view from the Begwns shows the turbine at a wholly incorrect scale. He also seeks to rely on s 31(2A).

Discussion

18. The defendant was aware of the need to give special regard to listed buildings and their setting, as is shown by the officers' reports. It was aware that Llanbedr church is a listed building: the grade, and the error as to the grade, are not material at this stage of the process. I accept that neither the reports nor the decision show any application of the process in s 66(1) or the similar requirements of relevant policy. If, therefore, Mr Harwood can show that that process ought to have been applied, he will have demonstrated an error of law.
19. I do not consider that so far as the date of the decision is concerned the matter is settled against the claimant merely by the lack of any expressed concern in the material before the defendant. The duty under s 66(1) arises from the existence of the listed building, not from what anybody says about it; and the observations of Patterson J in Carnegie followed from her view that there had been earnest enquiry as to the effect of the development on listed buildings and their setting. Without wanting to suggest that a local planning authority undertake the impossible, it must be the case that in some circumstances it will not be sufficient to rely on silence. In the present case the position was that the Built Heritage Officer made no reference at all to the listed building: that was something that perhaps might have given rise to enquiry, if only to check that the lack of mention was the result of enquiry and a decision that nothing needed to be said, rather than an accidental omission.
20. In my judgment, however, the matter's not having been raised at any earlier stage may in a case like this be relevant in at least three ways. First, where there has been a lengthy process (particularly one where there has been an earlier similar application) in which considerable amounts of material have been submitted by objectors to the application (including, as in the present case, the claimant himself), it may be more reasonable for a decision-maker to take the view that the necessary enquiry has in effect been made and that if there was a point to be raised it will have been. Secondly, where there has been no previous specific mention of the issue it may help a decision-maker to defend a claim on the ground that the alleged harm is insignificant, on the ground that the more significant the threatened harm is the more likely it is that it will be mentioned. Thirdly, and for similar reasons, the lack of a previous mention may help to show that a post-decision confirmation of the position taken at the time of the decision is genuinely an explanation of a decision lawfully taken, and not an attempt to conceal a material deficiency in the decision-making process.
21. The claimant's assertion is that there is at least one place on the Begwns from which the church and the turbine will be visible. He disputes the defendant's assertion that the matter had not been mentioned earlier, but I do not think it is at all easy to see any previous specific suggestion that the visibility of a part of the turbine from the Begwns would have an adverse impact on the setting of the church as a listed building. It is worth I think pausing to consider what exactly is being said. Although Mr Harwood did not make the submission explicit, he must be asserting that the existence of a view encompassing both church and turbine engages s 66(1) and thus demonstrates the error he seeks to prove. I do not accept that. None of the authorities to which I was referred support it; and a moment's consideration of the enormous areas over which some tall listed buildings (such as Salisbury or Ely Cathedrals) are visible show that it cannot be right. The first question is whether what is proposed does any harm to the setting of the listed building. That is a question of judgment. It is not the same as asking whether there is a view encompassing both building and development, primarily because not everything encompassed in such a view is the setting of the building. If the conclusion is that the development, however visible it may be, does not affect the setting of the listed building, that is the end of the matter so far as s 66(1) is concerned. Finding the view is not enough: the claimant would have to show that the defendant ought to have considered that the part of the view containing the turbine was to be regarded as the setting of the building. These observations are consistent with those of Hickinbottom J in R (Miller) v North Yorks CC [2009] EWHC 2172 (Admin) at [87] ff.
22. Drawing these factors together, the position in the present case is as follows. At the time of the decision there was no express process of assessment and balance under s 66(1). A great deal of material had been put before the defendant, but there was no suggestion of damage to the setting of the church. In that context, and despite the silence of its own Built Heritage Officer, the defendant was entitled to conclude that it had sufficient material to conclude in the exercise of its planning judgment that the issue was not one that arose from the proposal, and that being so it had no need to refer any further to the matter. The material that has been provided since the grant of planning permission does not show that the defendant was wrong in concluding that the turbine would not be visible from the church; nor does it show that the defendant was obliged to consider that the setting of the church would be adversely affected. Nothing in the material now presented gives any reason to suppose that the post-decision comments on the defendant's behalf are anything other than a wholly honest explanation of why the newly-raised factors make no difference: the evidence of intervisibility is not persuasive, and the view from the Begwns does not show that s 66(1) ought to have been taken into account. There are no significant visual effects on the church and its setting is not affected.
23. I therefore reject ground 1. Because I heard full argument on it, however, and in case I am wrong on this point, I move on to consider the impact of s 31(2A) of the Senior Courts Act 1981. That subsection was inserted by s 84 of the Criminal Justice and Courts Act 2015; it and the two next subsections are as follows:

"(2A) The High Court -

(a) must refuse to grant relief on an application for judicial review, and

(b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.

(2C) If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied."

24. Rules of Court (CPR 54.8(4)(ia)) require a defendant relying on an argument that the result would have been the same if the error had not occurred to summarised the basis for that defence in the acknowledgment of service. That is likely to be by way of the similar provisions in the inserted sub-ss (3C)-(3F) which prescribe the position at the permission stage, as indeed was the case here in relation to the defendant. Mr Corbet Burcher had not put in an acknowledgment of service and made no specific application for dispensation from the rules, but in view of the fact that the issue is live in relation to the defendant that makes no difference.
25. Section 31(2A) is a firmly backward-looking provision, referring to what would have happened in the past if the error had not occurred, not to what would happen if the matter were to be returned to the defendant for a new decision. I have no doubt that it would apply to ground 1 of this claim if there had been an error of law. In the circumstances of this case and for the reasons set out above, the post-decision statements by the defendant's Built Heritage Officer and by CPAT are entirely consistent with the way that matters unfolded and with the evidence both at the time of the decision and even subsequently. There is no good reason to treat them as other than an honest and credible assessment of the position of the makers of the statements in relation to the setting of the church. It is more than 'highly likely': it is in my judgment clear that the substance of the reports to committee would have been the same and that the decision would have been the same with or without the asserted error. If I had thought that there was an error of law in failing to undertake the s 66(1) duty, I should nevertheless have refused to grant relief on this ground.

Ground 2

The issue

26. It is clear that the defendant did not consult CADW or the Welsh ministers before granting planning permission. The only question is whether in the circumstances of this case it had an obligation to do so. That in turn depends solely on the true interpretation of the legislative provisions.

The law

27. By art 14(1) of the Town and Country Planning (Development Management Procedures) (Wales) Order 2012 (SI 2012/801),

"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."

28. There are exceptions not relevant to this claim. In Schedule 4, paragraph (k) of the table, there is the category

"Development likely to affect the site of a scheduled monument."

29. The authority mentioned against that category is "The Welsh Ministers": it is common ground that the obligation imposed is sufficiently performed by consultation with CADW. Below the table is a paragraph of interpretive provisions, one of which is that in paragraph (k), 'scheduled monument' has the same meaning as in s 1(11) of the Ancient Monuments and Archaeological Areas Act 1979. By that subsection a 'scheduled monument' is a monument that is included in the schedule of monuments compiled under s 1 of that Act, from which it follows that a scheduled monument for the purposes of the 2012 Order must be a monument.
30. The definition of 'monument' is to be found in s 61 (7), (9), (10) and (11) of the 1979 Act.

"(7) "Monument" means …

(a) any building, structure or work, whether above or below the surface of the land, and any cave or excavation;

(b) any site comprising the remains of any such building, structure or work or of any cave or excavation; and

(c) any site comprising, or comprising the remains of, any vehicle, vessel, aircraft or other movable structure or part thereof which neither constitutes nor forms part of any work which is a monument within paragraph (a) above;

and any machinery attached to a monument shall be regarded as part of the monument if it could not be detached without being dismantled.

(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; and

(b) to a group of monuments or any part of a monument or group of monuments.

(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."

Submissions

31. Mr Harwood noted that the applicant had identified effects on two scheduled monuments, in the sense that, as the defendant also accepted, there were two scheduled monuments from which the turbine would be visible, and that the impact on them would be adverse: the extent, but not the existence, of the impact was disputed. He submitted that in these circumstances CADW should have been consulted as the effect was on 'the site of a scheduled monument'. 'Affect', in the Order, included, he argued, development that had a visual impact or other effect on the setting of a scheduled monument even if the development itself was to be outside the site itself. He suggested that to read the Order in that way would promote its purpose, because development directly affecting scheduled monuments is controlled (in Wales essentially by CADW) under ss 2 and 3 of the 1979 Act, so that consultation serves no additional purpose. He reminded me that in some other cases set out in the Table in Schedule 4 to the Order the land affected would necessarily be outside the development site.
32. Mr Harwood made reference to decisions on other legislation about the effect of developments on visual impact and off-site effects. With an eye no doubt to cases concerning wind turbines he made special reference to R (Howell) v Secretary of State for Communities and Local Government [2014] EWHC 3627 (Admin) concerning a proposal for a turbine at the edge of the Norfolk Broads, and R (Bayliss) v Secretary of State for Communities and Local Government [2013] EWHC 1612 (Admin), where a wind farm was to be just outside an Area of Outstanding Natural Beauty. He referred also to decisions on the setting of listed buildings and the character and appearance of conservation areas, including R (Plunkett) v Sefton MDC [2011] EWHC 368 and R (Higham) v Cornwall Council [2015] EWHC 2191 (Admin) (in which arguments based on the rules relating to AONBs were also raised and rejected). Mr Harwood also drew attention to the judgment of Sullivan LJ in R (Friends of Hethel) v South Norfolk DC [2010] EWCA Civ 894 at [41], to the effect that where consultation of this sort is prescribed but not undertaken it may not be right to allow the planning permission to survive, because it is possible that the heritage body's response would have tipped the balance.
33. For the defendant Ms Parry submitted that the claimant's argument was an inadmissible extension of the duty imposed by the 2012 Order. There is no statutory control over the setting, as distinct from the site, of scheduled monuments. There is specific reference to the setting of ancient monuments in Planning Policy Wales at paragraphs 6.5.1 ('the desirability of preserving an ancient monument and its setting is a material consideration') but the same document a few paragraphs later sets out the duty under the Order in terms solely of the site. In similar terms is Circular 60/96: Planning and the Historic Environment: Archaeology at paragraphs 15 and 17. These all impliedly emphasise the absence of any reference to setting in paragraph (k) of the Table. Further, the vocabulary of 'setting' was clearly available to the draftsman of the Order but it was not adopted.
34. If, contrary to her principal submission, paragraph (k) of the Table did include a reference to the visual impact on a scheduled monument, Ms Parry submitted that the duty did not arise in the present case. The primary question was whether in the opinion of the local planning authority the proposed development fell within one of the categories in the Table. It was evident that in the opinion of the defendant it did not do so, and there was no reason to say that the defendant's opinion should have been different. CPAT had said that the proposed development carried 'no archaeological implications'; the applicant assessed the visual impact on scheduled monuments to be minor or negligible, and there was, before the grant of Planning Permission, no suggestion that either of those assessments was inaccurate.
35. The interested party, through Mr Corbet Burcher, adopted Ms Parry's submissions on this ground.

Discussion

36. The starting-point must be the statute. I derive the following propositions from s 61 of the 1979 Act, ignoring for present purposes the type of monument that falls within s 61(7)(c), and using the word 'structure' to include all the possible types of structure envisaged within the statutory definitions.

(i) A 'monument' may consist of a structure (sub-s (7)(a)). The 'site of' the monument then includes the land on which it stands, together with the land 'comprising or adjoining it' that is 'essential for the monument's support and preservation' (sub-s (9)). A reference in the 1979 Act to the monument includes a reference to its site in this sense (sub-s (10)(a)).

(ii) Alternatively, a monument may consist of a site that is the remains of a structure or (in Scotland) which carries evidence of previous human activity (sub-s (7)(b), (d)). In this case the monument is itself a site, but again the 'site of' the monument includes not only the land comprising it but also that 'comprising or adjoining it' that is 'essential for the monument's support and preservation' (sub-s (9)). A reference in the 1979 Act to the monument in this case includes a reference to its site in this sense, that is to say not merely to the site that is the monument but also to the larger parcel of land (if any) added by operation of sub-s (9) (sub-s (10)(a)).

(iii) References in the 1979 Act to 'the site of' a monument are references to the monument where it consists of a site and in other cases include reference to the monument itself, but in each case because of the effect of sub-s (10) must include any sub-s (9) additions.

(iv) A 'scheduled monument' means a monument incorporated in the Schedule; as a monument it therefore includes the site in the potentially enlarged s 61(9) sense.

37. I was not referred to any authority capable of modifying these conclusions. So far as the 2012 Order is concerned, the reference to a scheduled monument is governed by the 1979 Act because of the interpretation provisions of the Table, but although the phrase in the Table is 'the site of a scheduled monument' the definition in s 61(11) is not imported. As that definition does not appear to add anything new for present purposes I do not think this makes any difference. In the 1979 Act the site of a monument (as distinct from the site of authorised operations) is the subject of reference in relation to powers of entry, publication of notices, and prohibition of metal-detecting, but apparently nothing else.
38. Looking now at what the 'site' is, it seems to me that what is intended is the protection of the monument itself (whether the monument is a structure or a site). The extension under s 61(9) has nothing to do with the monument's importance or appreciation. It is what is essential for its support and preservation. Thus, neighbouring land whose support is required for a large structure comprising a monument might be included, as might a river-bank if its embankment was necessary to prevent inundation of the monument. The precise delineation of what the site is may well be important in relation to the powers of compulsory purchase under s 10 are to be exercised, because those powers relate directly only to monuments (including, by s 61(10) any s 61(9) additional land) and not to land surrounding the monument. A further indication of the narrow meaning of 'site' and the implication of physical necessity for any extension beyond the monument in the narrowest sense is s 15, which enables the acquisition (by compulsory purchase under s 10 if necessary) of other land for the purpose of (amongst other things) maintaining, managing or providing public access to the monument. However desirable or indeed necessary these functions may be, they evidently do not themselves fall within s 61(9) because if they did they would extend the site of the monument.
39. Turning now to the meaning of 'affect', Mr Harwood relied on a number of points, none of which, I regret to say, assist very much. The primary legislation in the case both of the Norfolk Broads and other Areas of Outstanding Natural Beauty require the relevant authorities to have regard to the purpose of conserving and enhancing the natural beauty of the area in question. In these circumstances decisions indicating that the duty under the Act included consideration of a proposed development outside the protected area but visible from it are not informative because they are not surprising: indeed decisions to the contrary would be unexpected. But there is no such provision or any equivalent of it in the legislation presently under consideration: 'beauty' is a concept based for present purposes on visual appreciation; 'site' is not. Similarly, interpretations of the duty to consider the effect of a proposed development on the setting of a listed building are of limited utility in determining whether a similar duty is to be read into a provision in which it is not explicit. Nothing in the decisions to which Mr Harwood referred causes me to think that the duty being examined and applied in them was to be taken to exist in contexts in which it was not expressly imposed.
40. No doubt it is right that in some of the entries in the Table the reference must be to land outside the development site, but in other entries there is no such requirement, and in any event there is no reason to suppose that the entries in the Table are supposed to have any feature in common other than that they appear in the Table and so require consultation. So far as concerns the argument that CADW have control over developments affecting the site of scheduled monuments anyway, that is not quite right. Certain works on monuments (including their sites) are indeed prohibited unless performed under consent, but the scheme of statutory control does not extend to all works that may affect the monument, particularly where the possible effect is an unintended one. The requirement of consultation fills a noticeable gap even if the phrase in the Table is given a narrow meaning.
41. It seems to me that the clearest indication of whether there is an effect on something that is itself a creature of statute is to see whether the purpose for which statute created it is affected. The purpose of the creation of the notion of a monument and its site is preservation, not amenity; and it follows that action will 'affect the site of a scheduled monument' if it goes to its preservation but not if it affects only its amenity.
42. These considerations lead to the following conclusions.

(i) References in the 1979 Act to a monument, whether specifically accompanied by a reference to its site or impliedly including a reference to its site, are references to the monument and such land as is necessary for its physical protection but excluding such land as may be necessary only for its maintenance and enjoyment.

(ii) Nothing in the 2012 Order or any authority to which I have been referred suggests that 'the site of a scheduled monument' carries a meaning different from what would be implied by s 61(11) in a reference in the 1979 Act to the site of a monument: in particular there is no basis for giving the word a wider meaning or ambit in the Order than in the Act.

(iii) Whether a proposal affects the site of a monument for the purpose of the Order is a question to be decided in the light of the meaning of the phrase 'the site of a scheduled monument'

(iv) Nothing in any relevant legislation or authority suggests that the word 'affect' should be given a meaning wider than is appropriate for securing the very functions that the identification of the monument and its site secure.

(v) For the purposes of the Order a development will affect the site of a scheduled monument if and only if it has an impact on the monument or its site in the s 61(9) sense, that either is direct or will prevent any land comprised within the monument by s 61(9) from continuing to provide necessary protection.

(vi) Impacts on amenity, including visual amenity, are not for the purposes of the Order effects on the site of the monument.

43. It is not said that the effect of the development on any scheduled monument would be other than visual. There was accordingly no duty under the 2012 Order to consult CADW and this ground fails.
44. I do not, however, accept in relation to this ground Ms Parry's argument that any error of law would have been immaterial. The defendant accepted that there was a visual effect on the monuments, albeit insubstantial, and it does not seem to be argued that this effect was not an effect on their setting. If there had been a duty in general to consult if in the opinion of the defendant, the development was likely to affect the setting of a scheduled monument, it is clear that that duty would have arisen. It would be wrong to speculate what CADW would have said if consulted, or what effect any response might have had on the planning decision. If Mr Harwood's submissions on construction had been correct, the planning permission would have had to be quashed. But, as I have explained, they were not correct.

Ground 3

The issue

45. The applicant's Planning, Design and Access Statement listed four heritage assets in total. One was Lanbedr church, and one was a field boundary which is not a scheduled ancient monument (SAM). ('Ancient monument' is defined in s 61(13) of the 1979 Act: all scheduled monuments are ancient monuments, but there is power to nominate other monuments as 'ancient' without adding them to the Schedule.) The other two are the SAMs nearest to the site, being approximately 1.4 and 1.9 kilometres away. It assessed the magnitude of change in respect of these two SAMs as 'slight' and 'minor', and the effect as 'minor' and 'minor/negligible' respectively. CPAT advised that 'there are no archaeological implications' for the proposed development. Later correspondence reveals that CPAT's input was based on a search for monuments within 1 km of the site, which had produced a nil return. The planning officer's assessment noted the two SAMs within 2km, and said that 'despite the noted distance, intervening topography and vegetation, the proposed turbine will be clearly visible from the identified SAMs'. After citing Policy ENV17, however, the writer's conclusion was that 'given the noted distance, intervening topography and vegetation, it is considered that the proposed turbine would not have unacceptably adversely [sic] impact on the aforesaid scheduled monuments'.
46. The nomenclature of the SAMs identified in the Statement is a little fluid and is not helped by a number of typographical errors in the Statement itself. The closer SAM appears to be called Castle Mound as well as Llandeilio (by the applicant) or Llandella (by Mr Harwood) Graban Motte, a difference which led Mr Harwood to suggest that the officer's report did not mention it. Nothing turns on this: it is clear that the officer did consider the two SAMs within 2 km of the site. There are, however, other SAMs quite close by, including a further five within 4.5 km of the site. The possible effect is not expressed in the officer's reports. This ground is pleaded and argued as an error of fact amounting to an error of law in that the officers failed to appreciate that SAMs not mentioned in their report would be affected by the turbine.

Law and Policy

47. The requirements for a finding of an error of fact amounting to an error of law are analysed at length by Carnwath LJ in E and R v SSHD [2004] EWCA Civ 49. He concludes that the basis of the jurisdiction to consider errors of fact in administrative law is derived from a notion of the unfairness of allowing a decision to stand if based on error of fact, and deriving the principles chiefly from R v CICB ex parte A [1999] 2 AC 330, held that the unfairness in question arose from the combination of five factors:

"(i) An erroneous impression created by a mistake as to, or ignorance of, a relevant fact …;

(ii) The fact was "established", in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence;

(iii) The claimant could not fairly be held responsible for the error;

(iv) … all the participants had a shared interest in co-operating to achieve the correct result;

(v) The mistaken impression played a material part in the reasoning."

48. There is no statutory protection for the setting of scheduled monuments, nor any definition of 'setting'. Policy makes it clear that the presumption must be against disturbing the monuments themselves; but even in policy the protection of setting is vestigial. I have made reference above to the relevant passages in para 6.5.1 of Planning Policy Wales and Circular 60/96. When a proposal is likely to affect the setting of a monument the only specific presumption is that nationally important archaeological remains should be physically preserved in situ. But in addition, as Planning Policy Wales states, 'the desirability of preserving an ancient monument and its setting is a material consideration in determining a planning application'.

Submissions

49. Mr Harwood points out that the objections put to the defendant included observations about the effect of the development on the SAMs to which this ground refers. One of those objections was from the National Trust. The failure to mention these SAMs shows that the effect on them had, mistakenly, not been appreciated: the failure to appreciate the intervisibility of the turbine and the monuments is an 'uncontested error of fact'.
50. Ms Parry, whose arguments were also adopted by Mr Corbet Burcher for the applicant, submitted that there was no reason to say that the defendant's officers had failed to do what they were required to do: a judgment had been made on the distance from the turbine that needed to be taken into account, and an expert assessment had been adopted. Further, the error of fact alleged on behalf of the claimant did not meet the requirements of E and R. Finally, the matter had been looked at again after the decision, and the conclusions affirmed.

Discussion

51. Despite the way in which this ground is put on behalf of the claimant, it is clear that there is not the slightest possibility that the erection and operation of the turbine could have any effect on any of the monuments themselves, particularly those more than 2 km away: the effect asserted by Mr Harwood is an effect on the setting of the monuments. Mr Harwood again relies on the assumption, similar to that upon which he relied for ground 1, that the mere fact of intervisibility shows that the setting of a monument is affected and so is not being 'preserved'.
52. The material before the defendant made reference to most, probably all, of the monuments the existence of which is the basis for this ground. There is simply no reason to assume that the absence of any mention of them by the officers means that their existence was not appreciated. It is perfectly clear that the effect on the setting of the nearest monuments was considered. Although the turbine would be visible from them, the assessment was that the impact would not be unacceptably adverse. The judgment was that it was not necessary to consider effects on the settings of monuments even further away. That was a judgment the defendant was entitled to make. It was supported by an expert assessment from CPAT, who evidently had no concerns about monuments more than 1 km away, and there was no expert assessment to the contrary (cf Miller above at [96]); the National Trust's observations were general and not directed to the setting of any monument.
53. That meant, simply, that the existence of other SAMs further away from the site was not a relevant factor, and there was no need to burden reports with mention of them. Reports are addressed to the planning committee as local residents who have some knowledge of the area (Miller at [95], Carnegie at [51]) and lack of mention does not begin to imply lack of attention.
54. Further, I agree with the defendant that the requirements of E and R are not met. This is not a case where the asserted error is of an 'established' fact. The existence of the SAMs is an established fact, but the effect of the development on them is a matter on which the judgment of the defendant is contested by others. Mr Harwood could not establish the mistaken fact on which he relies, that is to say that the monuments would be affected, by objective and uncontentious evidence.
55. The error of fact asserted by Mr Harwood is accordingly not one with which the Court will be concerned in an administrative law action, but in any event there is no reason to suppose there was an error. This ground also fails.
56. So far as concerns the post-decision position, I cannot accept Mr Harwood's submission that there had in effect still been no assessment. The Built Heritage Officer considered each of the SAMs in turn and reached a view about any impact on its setting. In each case she was able to say that she did not disagree with the assessments previously made by CPAT and/or Natural Resources Wales that the proposed development would not have an adverse impact on the assets for which those bodies are responsible. It is absurd to suggest that she was agreeing with an individual assessment that had not been made. She was adopting general assessments that had been made, and confirming that they remained a valid expression of the position even when other assets were examined.
57. As with ground 1, if there had been an error in failing to mention or to consider the additional SAMs, it is clear what the position would have been. The existence of the more distant SAMs, and the visibility of the turbine as part of their setting, made and would have made no difference. It is again more than 'highly likely' that the result of the consideration would have been the same as it was and I should have refused relief.

Conclusion

58. For the foregoing reasons I dismiss this claim.