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England and Wales High Court (Administrative Court) Decisions
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Anesco Ltd v Secretary of State for Levelling Up, Housing and Communities & Anor (Re Application for Planning Statutory Review) [2025] EWHC 1177 (Admin) (16 May 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/1177.html
Cite as:
[2025] EWHC 1177 (Admin)
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Neutral Citation Number: [2025] EWHC 1177 (Admin) |
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Case No: AC-2024-BHM-000113 |
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
In the matter of an application for Planning Statutory Review
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Birmingham Civil and Family Justice Centre 33 Bull Street, Birmingham, B4 6DS |
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16/05/2025 |
B e f o r e :
MRS JUSTICE STACEY
____________________
Between:
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ANESCO LIMITED
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Claimant
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- and -
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(1) SECRETARY OF STATE FOR LEVELLING UP, HOUSING AND COMMUNITIES - and - (2) WEST NORTHAMPTONSHIRE COUNCIL
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Defendants
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____________________
Ms Stephanie Hall (instructed by Burges Salmon LLP) Claimant
Mr Michael Fry (instructed by The Treasury Solicitor, Government Legal Department) for the First Defendant
Hearing dates: 10th December 2024
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HTML VERSION OF APPROVED JUDGMENT
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Crown Copyright ©
This judgment was handed down remotely at 11.00am on 16 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
MRS JUSTICE STACEY
MRS JUSTICE STACEY:
- This matter comes before the court under s.288 Town and Country Planning Act 1990 ("TCPA 1990") on the application of the claimant company, Anesco Limited, for the statutory review of the decision of the first defendant, the Secretary of State for Levelling up, Housing and Communities, to refuse the s.78 TCPA 1990 appeal made by the claimant in respect of a development for a temporary solar farm with a capacity of up to 49.72Mw and related infrastructure, to be in place for 40 years ("the Development") on what is currently agricultural land at Milton Road, Gayton, Northampton NN7 3HE ("the Site"). Following the refusal of permission by the second defendant local planning authority, West Northamptonshire Council ("the Council"), on grounds relating to landscape and visual effects, the first defendant appointed an Inspector, Mike Robins MSc BSc (Hons) MRTPI, who recommended in his Inspector's Report of 15 November 2023 ("the IR") after a four day public inquiry that the appeal be allowed. The decision was then 'recovered' and made by Simon Hoare MP, Minister for Local Government on behalf of the first defendant. He refused the appeal on 13 March 2024 in his decision letter ("the Decision").
- Permission was granted by Eyre J on 11 July 2024 on the first of two grounds advanced by the claimant and the second ground comes before the court for a rolled up hearing to consider the oral renewal application for permission and, if granted, the substantive appeal. The claimant seeks an order quashing the first defendant's Decision.
The grounds of statutory review and the issues in the case
- Ground 1 has two parts. The first is an alleged failure to interpret properly or to apply heritage policy in that the first defendant conflated a change to the setting of the two identified heritage assets from the Development, with harm to their significance, which was not open to him to do, or not without fuller reasoning, since it had been part of the claimant's case that the impact on the setting of the two assets did not harm their significance. The second is an allegation that the first defendant failed to interpret properly and apply the national policy in EN-3, GPA3 and the NPPF.
- Ground 2 also falls into two parts and firstly alleges lack of consistency between the first defendant's decision in this case with the decision in respect of a development at Great Wymondley, ("the GW Development") said to be a like case which should have been treated in a like manner. The second part is a challenge to the adequacy of the reasons provided and an alleged failure by the first defendant to take into account EN-3 and EN-1 as material considerations and other omissions in the reasoning.
The factual background
- The agreed factual background is as set out in the Claimant's statement of facts and grounds ("SFG"). The Claimant initially applied to the Second Defendant for planning permission for development described as:
"construction of a temporary Solar Farm of up to 49.72MW, to include the installation of solar panels with transformers, a substation, a DNO control room, a customer substation, GRP comms cabin, security fencing, landscaping and other associated infrastructure" ("the Development")".
- The Development was proposed for a temporary period of 40 years.
- The Site sits adjacent to the Grand Union Canal Conservation Area ("GUC CA") and a Grade II listed bridge over the canal known as the Turnover Bridge. The GUC CA is 26 miles long and was engineered to take a "longer but less expensive route" through this part of Northamptonshire. It is a working canal with an industrial heritage.
- That application was refused by the Council for one reason relating to landscape and visual effects (but not heritage).
- The Council's position at the inquiry was that there was a low level of less than substantial harm to two heritage assets (the GUC CA and the Turnover Bridge) recorded in closings which it (collectively) afforded limited weight. The Council did not provide specialist heritage evidence as to why this level of harm was thought to exist and the Inspector heard no live evidence on the topic. Instead, he was assisted by written evidence from the Claimant provided by Mr Morley.
- It was a matter of agreement between the parties that any harm to heritage assets was outweighed by the benefits of the proposal.
- The Claimant's case at the inquiry was that there was no harm to the relevant assets as set out within the Claimant's evidence as follows in relation to the Turnover Bridge:
"… while the proposals subject of this Appeal would result in a change to the setting of the Listed building, this change would be to an aspect of setting that does not contribute to its heritage significance or the ability to appreciate that significance. The proposals would not therefore result in any harm to the significance of the Listed building as a result of change to setting, and the proposals would be consistent with Chapter 16 of the NPPF (2021)." [Heritage Written Representations para 5.1.4]
- And in relation to the GUC CA as follows:
"…the northern parcel does not contribute anything to the significance of the GUC Conservation Area. It forms a barely perceptible aspect of the experience of the Conservation Area, and, as discussed in detail, where it is perceptible in views from and towards the Conservation Area, it forms a historically and visually incidental aspect of the surrounding landscape that adds nothing to the Conservation Area's historic or architectural interests or to the intelligibility of those interests. This is recognised in the A&MP, which does not identify any Important Views towards the northern parcel.
4.1.21 … the sensible conclusion is again that the northern parcel does not contribute anything to the ability to appreciate the significance of the GUC Conservation Area. The interests and overall significance of the Conservation Area are naturally best appreciated from the water itself, from the adjacent towpaths, or when looking along the canal from the surmounting bridges. No material level of appreciation of the Conservation Area's significance – including the historic and architectural interests that underpin its designation – is possible from within the Appeal Site and change to the Appeal Site would not reduce the ability to appreciate the Conservation Area's significance as viewed/experienced from any other perspective.
4.1.22 In sum, the proposals would result in no harm to the significance of the Conservation Area or to the ability to appreciate that significance. The key contributing heritage interests and aspects of setting to the significance of the Conservation Area would be preserved, as would the ability to appreciate that significance…" [Heritage Written Representations paragraphs 4.1.20-4.1.22]
- There was a four day inquiry and the Inspector conducted a site visit which no-one has suggested was inadequate. The Inspector found as follows in relation to the two assets:
"10.72 Turning then to the listed bridge. The Turnover bridge is identified in the GUC CA management plan, as a Grade II listed bridge providing an opportunity for horses to cross from one side of the canal to the other. It provides important context to the historic use of the canal and its significance is therefore both architectural and historic. As set out above, this bridge provides access from a nearby car park to the canal and towpath and a link on the Rothersthorpe circular walk. Its historic value and functional purpose is intrinsically linked to the canal, which is therefore the key component of its setting, although on crossing the bridge, parts of the northern parcel would be evident. [5.46, 6.3, 6.33, 7.19, 8.2]
10.73 I consider the northern parcel is part of the setting of the bridge. Although the proposed planting, which would increasingly screen those views which establish a relationship between the site and the bridge, there would be a low level of harm to that setting. I consider this to be at the lower end of less than substantial harm as set out in the Framework."
…
10.68 The effect of the site on the landscape or visual experience are not the same as its contribution to the heritage significance of the canal, nonetheless, I consider the introduction of solar panels would alter the relationship to the canal and appreciation of its embanked form within a rural landscape. Consequently, I consider there would be harm to the setting of the GUC.
10.69 The scale of this is limited to the short stretch in what is a very long linear CA. The harm to the CA as a whole, would therefore be limited and at the lower end of less than substantial harm, when considered on the context of the Framework."
- The Secretary of State essentially mirrored the Inspector's conclusions but uprated the harm from limited to low to middle end of less than substantial harm as follows:
"[29] The Secretary of State notes that the GUC CA Management Plan describes the overall character as being defined by the gently curving canal, the modest grassy towpath and the surviving bridges, with its setting being of particular note as it passes through the river valleys (IR10.66). He agrees at IR10.66 that the significance of the GUC lies in its historic and architectural value, which includes the engineering of the contoured route of the canal. For the reasons given at IR10.67 he agrees that the northern parcel of the appeal site is an element of the setting of the GUC CA. He agrees at IR10.68 that the introduction of solar panels would alter the relationship to the canal and appreciation of its embanked form within a rural landscape and that there would be harm to the setting of the GUC. The Secretary of State agrees that the harm is limited to a short stretch in what is a very long linear CA (IR10.69). However, he finds the harm to the setting of the GUC, even in this short stretch, is moderate and in the lower to middle end of less than substantial harm unlike the Inspector who finds limited harm at IR10.69.
…
[31]. The Secretary of State agrees that the Turnover Bridge provides important context to the historic use of the canal and its significance is therefore both architectural and historic (IR10.72). He further agrees at IR10.72 that its historic value and functional purpose is intrinsically linked to the canal, which is therefore the key component of its setting, although on crossing the bridge, parts of the northern parcel would be evident. The Secretary of State finds, unlike the inspector at IR10.73 who finds low harm, that the northern parcel is part of the setting of the bridge and even with proposed planting the introduction of solar panels here would cause moderate harm to the setting of the Turnover Bridge in the lower to middle end of less than substantial harm." (Emphasis added).
- The Site is not in fact located within or near to any river. The nearest being the River Nene which is some 2.5km to the north of the canal on the other side of the M1 motorway from the appeal site. The GUC CA Management Plan refers to three river valleys in the context of "landscape and views" and makes no comment in relation to setting or heritage significance in relation to river valleys [Management Plan 4.1].
- The Claimant's closing submissions outlined the Claimant's heritage case in relation to the GUC CA as follows:
"38. The GUC Management Plan does make reference to the importance of landscape to the setting of the canal. That is true, but it is not equally true for all parts of the setting for the full 26-mile stretch of the canal through the authority area. That is why the management plan has identified what truly is 'important' to the significance of the canal and it does not include the appeal site or views towards it. Further, the general amenity provided by the landscape surrounding the canal should not be conflated with heritage significance, the two are separate and in terms of visual receptors experiencing any harm to amenity, this falls to the landscape evidence to assess."
- At Great Wymondley, the Secretary of State considered an application for development described as:
"Proposed solar array with associated battery storage containers and ancillary development including means of access and grid connection cable on land at Graveley Lane and to the east of Great Wymondley, Hertfordshire" ("the GW Development").
- The GW Development proposed a solar farm with capacity of 49.995MW. The Great Wymondley Decision Letter ("the GW DL") makes the following relevant findings:
1) That climate change and energy security was a named "main issue" (GWDL para 17 onwards).
2) That contribution towards national renewable energy targets should be afforded substantial weight, departing expressly from the Inspector's finding of significant weight (GWDL 18).
3) That there was upper end of less than substantial harm to the Great Wymondley Conservation Area (GWDL 24), lower end of less than substantial harm to Great Wymondley Castle (GW DL 24) and moderate harm to grade I listed Wymondley Priory, scheduled monument and grade II* listed tithe barn. Notably in doing so at GW DL25 the Secretary of State finds as follows:
"The Secretary of State has carefully considered the reasons given at IR12.46- IR12.49 in relation to the grade I listed Wymondley Priory, however he disagrees with the Inspector's assessment at IR12.49 that the proposal would cause serious harm to the setting of the scheduled monument, together with that of the grade I listed priory and the grade II* listed nearby tithe barn, and less than substantial harm to the contribution which setting makes to their significance… The Secretary of State considers that the proposed development retains visual separation between the priory complex and the farmland setting would remain as a result of the proposed development, as would the ability to appreciate the contribution of that setting to the significance of the priory complex. He therefore concludes that there would be a moderate level of harm to the setting of the scheduled monument…"
4) That the scheme's availability and deliverability and the urgency of addressing the climate crisis, are matters which lend significant support to the proposal, and that those matters attracted significant weight (GW DL 31).
It should be noted that the Development had a grid connection offer for connection in 2024, as noted in evidence at the inquiry as being a benefit of the scheme and relied upon in closing submissions at paragraph 33. No mention of this is found within the Decision, in distinction to the GW Decision.
5) That the public benefits outweighed the less than substantial harm to three groups of assets (including harm at the upper end of less than substantial harm to the GW CA) (GWDL 38).
6) That very special circumstances existed to outweigh the harm to the Green Belt and that permission should be granted (GW DL 40).
Relevant national policy and guidance
- It is also common ground that the Overarching National Policy Statement for Energy (EN-1) and the National Policy Statement for Renewable Energy Infrastructure (EN-3) are relevant and material to the Decision although primarily aimed at larger schemes since the Development is below the relevant threshold to be a nationally significant infrastructure project ("NSIP") and is not a scheme for Critical National Priority ("CNP") in the context of EN-1.
- EN-1 states that "substantial weight" should be given to the need for low carbon energy infrastructure (4.2.6) and provides the following in relation to consideration of the impact on and importance of heritage assets and their setting:
"5.9.27 When considering the impact of a proposed development on the significance of a designated heritage asset, the Secretary of State should give great weight to the asset's conservation. The more important the asset, the greater the weight should be. This is irrespective of whether any potential harm amounts to substantial harm, total loss, or less than substantial harm to its significance.
5.9.28 The Secretary of State should give considerable importance and weight to the desirability of preserving all heritage assets. Any harm or loss of significance of a designated heritage asset (from its alteration or destruction, or from development within its setting) should require clear and convincing justification…
…5.9.36 When considering applications for development affecting the setting of a designated heritage asset, the Secretary of State should give appropriate weight to the desirability of preserving the setting such assets and treat favourably applications that preserve those elements of the setting that make a positive contribution to, or better reveal the significance of, the asset. When considering applications that do not do this, the Secretary of State should give great weight to any negative effects, when weighing them against the wider benefits of the application. The greater the negative impact on the significance of the designated heritage asset, the greater the benefits that will be needed to justify approval."
- In EN-3, the following paragraphs are relevant:
"2.3.8: "In considering the impact on the historic environment as set out in Section 5.9 of EN-1 and whether the Secretary of State is satisfied that the substantial public benefits would outweigh any loss or harm to the significance of a designated heritage asset, the Secretary of State should take into account the positive role that large-scale renewable projects play in the mitigation of climate change, the delivery of energy security and the urgency of meeting the net zero target
2.10.160: "Solar farms are generally consented on the basis that they will be time- limited in operation. The Secretary of State should therefore consider the length of time for which consent is sought when considering the impacts of any indirect effect on the historic environment, such as effects on the setting of designated heritage assets".
- The National Planning and Policy Framework (NPPF), chapter 16 Conserving and Enhancing the Historic Environment describes heritage assets as "an irreplaceable resource, and should be conserved in a manner appropriate to their significance, so that they can be enjoyed for their contribution to the quality of life of existing and future generations." (para 195). Applicants should be required to describe the significance of any heritage assets, including any contribution to their setting in any planning application, with a level of detail proportionate to the assets' importance and no more than is sufficient to understand the potential impact of the proposal on their significance (para 200).
"205. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset's conservation (and the more important the asset, the greater the weight should be). This is irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm to its significance.
…
208. 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"
- The setting of a heritage asset is defined in the NPPF as:
" The surroundings in which a heritage asset is experienced. Its extent is not fixed and may change as the asset and its surroundings evolve. Elements of a setting may make a positive or negative contribution to the significance of an asset, may affect the ability to appreciate that significance or may be neutral."
- The meaning of "significance" for heritage policy, insofar as is relevant to the facts of this case is also defined in NPPF:
"The value of a heritage asset to this and future generations because of its heritage interest. The interest may be archaeological, architectural, artistic or historic. Significance derives not only from a heritage asset's physical presences, but also from its setting."
- Historic England have produced a Good Practice Advice Note 3 ("GPA 3") which states:
"Setting is not itself a heritage asset, nor a heritage designation… Its importance lies in what it contributes to the significance of the heritage asset or to the ability to appreciate that significance" (para 9)
….
Setting is different from general amenity. Views out from heritage assets that neither contribute to significance, nor allow an appreciation of their significance, are a matter of amenity rather than of setting" (paragraph 16).
- GPA3 advocates a staged approach in relation to decision-taking. Step 1 is to "Step 1: Identify which heritage assets and their settings are affected". Step 2 is described as "Assess the degree to which these settings and views make a contribution to the significance of the heritage asset(s) or allow significance to be appreciated." Step 3 is to "Step 3: Assess the effects of the proposed development, whether beneficial or harmful, on the significance or on the ability to appreciate it."
Legal framework
- The legal principles to be applied were largely not in dispute. The Development falls to be determined under the TCPA 1990 s.288.
- Reasons given need to be intelligible, adequate and enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal controversial issues disclosing how any issue of fact or law was resolved and must not give rise to substantial doubt as to whether the decision-maker erred in law by misunderstanding some relevant policy. In R (CPRE Kent) v Dover District Council [2017] UKSC 79, Lord Carnwath summarised the legal principles to be applied in respect of the standard of reasons (at [35 to 37]; and [42]). He endorsed (at [35]) the following summary of the approach given by Lord Brown in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953 (at [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 refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. 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."
- Insofar as challenges to decisions of the Secretary of State and their inspectors is concerned, the approach of the Court to challenges to decisions letters must respect the expertise of specialist planning inspectors and proceed on the presumption that they have correctly understood the policy framework (Hopkins Homes Ltd v Secretary of State [2017] UKSC 37 per Lord Carnwath at [25]-[26]). Decision letters should be read fairly and as a whole, without excessive legalism or hypercritical scrutiny (St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643 at [6] - [7]). A reasons challenge will only succeed where the reasons leave genuine, rather than forensic doubt as to what was decided (Clarke Homes Ltd v Secretary of State for the Environment [2017] PTSR 1081, 1089J).
- A challenge to a decision-maker's application of his/her planning judgement can only be made on the basis that it is irrational or perverse (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 per Lord Hoffman).
- In Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314 Lindblom LJ stated at para 41:
"The Planning Court – and this court too – must always be vigilant against excessive legalism infecting the planning system. A planning decision is not akin to an adjudication made by a court (see paragraph 50 of my judgment in Barwood v East Staffordshire Borough Council). The courts must keep in mind that the function of planning decision making has been assigned by Parliament, not to judges, but – at local level – to elected councillors with the benefit of advice given to them by planning officers, most of whom are professional planners, and – on appeal – to the Secretary of State and his inspectors. They should remember too that the making of planning policy is not an end in itself, but a means to achieving reasonably predictable decision-making, consistent with the aims of the policy-maker. Though the interpretation of planning policy is, ultimately, a matter for the court, planning policies do not normally require intricate discussion of their meaning. A particular policy, or even a particular phrase or word in a policy, will sometimes provide disagree as to the meaning of the words in dispute, and even when the policy-maker's own understanding of the policy has not been accepted, the debate in which lawyers have engaged may turn out to have been in vain – because, when a planning decision has to be made, the effect of the relevant policies, taken together, may be exactly the same whichever construction is right (see paragraph 22 of my judgment in Barwood v East Staffordshire Borough Council). That of course may not always be so. One thing, however, is certain, and ought to be stressed. Planning officers and inspectors are entitled to expect that both national and local planning policy is as simply and clearly stated as it can be, and also – however well or badly a policy is expressed – that the court's interpretation of it will be straightforward, without undue or elaborate exposition. Equally, they are entitled to expect – in every case – good sense and fairness in the court's review of a planning decision, not the hypercritical approach the court is often urged to adopt."
- An inspector's report and a decision letter should be read fairy and as a whole – St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643 at [6] and [7].
- In DLA Delivery v Baroness Cumberlege of Newick & Secretary of State [2018] EWCA Civ 1305 at paragraphs 28 - 29 the Court found that
"It is well established, as a general principle, that policies issued to guide the exercise of administrative discretion are an essential means of securing consistency in decision- making, and that such policies should be consistently applied… And that principle certainly applies in the sphere of land use planning, where, under the statutory code, decisions on applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise….
29. That previous decisions of the Secretary of State or his inspectors on planning appeals are capable of being material considerations is also well established… The classic statement of principle here is to be found in the judgment of Mann L.J. in North Wiltshire District Council (at p.145):
"… It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.
To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate.""
- In Catesby Estates v Steer [2018] EWCA Civ 1697 at paragraph 30 Lord Justice Lindblom set out that in a heritage asset case, the decision maker is required to understand firstly what the setting is, secondly the extent of that setting and thirdly and critically, to consider whether any effect on setting translates to harm to "significance" of the heritage as follows:
"…the effect of a particular development on the setting of a listed building – where, when and how that effect is likely to be perceived, whether or not it will preserve the setting of the listed building, whether, under government policy in the NPPF, it will harm the "significance" of the listed building as a heritage asset and how it bears on the planning balance – are all matters for the planning decision-maker, subject, of course, to the principle emphasized by this court in East Northamptonshire District Council v Secretary of State for Communities and Local Government [2015] 1 WLR 45 (at paragraphs 26 to 29), Jones v Mordue [2016] 1 WLR 2682 (at paragraphs 21 to 23), and Palmer (at paragraph 5), that "considerable importance and weight" must be given to the desirability of preserving the setting of a heritage asset. Unless there has been some clear error of law in the decision-maker's approach, the court should not intervene (see Williams, at paragraph 72). For decisions on planning appeals, this kind of case is a good test of the principle stated by Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2017] 1 WLR 1865 (at paragraph 25) – that "the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly." [30]
- Specific to s.66 Planning (Listed Buildings and Conservation Areas) Act 1990 (PLBCCA 1990) is the general duty as respects listed buildings and the consideration of whether to grant planning permission for development which affects a listed building or its setting and the obligation for the Secretary of State to have special regard to the desirability of preserving the building or its setting. In East Northamptonshire DC v SSCLG [2014] EWCA Civ 137 Sullivan LJ held that the requirement that flowed from the statutory duty under s.66 PLBCAA 1990 was that less than substantial harm did not mean less than substantial weight at [28]-[29].
- The legal framework for the consideration of the impact of a proposed development on relevant heritage assets was helpfully set out by Thornton J in The London Historic Parks and Gardens Trust v Minister of State for Housing and Ors [2022] EWHC 829 (Admin) at [31].
"31. The legal framework for consideration of the impact of a proposed development on relevant heritage assets was common ground:
a) In considering whether to grant planning permission the decision maker is under a general duty to pay special regard to the desirability of preserving the listed buildings potentially affected by the proposals, their settings and any features of special architectural or historic interest which they may possess ... Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 ). In this case, the Listed buildings include the Buxton Memorial (Grade II* listed building).
b) The significance of a heritage asset derives not only from an asset's physical presence, but also from its setting. Great weight should be given to the asset's conservation. The more important the asset, the greater the weight that should be given to conservation. Harm to the significance of a designated heritage asset requires clear and convincing justification (NPPF 199, 200).
c) Where potential harm to designated heritage assets is identified, it needs to be categorised as either 'less than substantial' harm or 'substantial' harm (which includes total loss) in order to identify which policies in the NPPF apply (NPPF 200-202). Accordingly, the key concept is whether the harm will be 'substantial'.
d) Substantial harm to grade II listed buildings or registered gardens (which would include Victoria Tower Gardens) should be exceptional. Substantial harm to assets of the highest significance, notably grade II* listed buildings (which will include the Buxton Memorial) should be wholly exceptional. For development that will lead to substantial harm to a designated heritage asset, consent should be refused unless it can be demonstrated that the substantial harm is necessary to achieve substantial public benefits that outweigh that harm (NPPF paras 200- 201).
e) 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 (NPPF 202).
f) Whether a proposal causes 'substantial harm' or 'less than substantial harm' will be a matter of judgment for the decision-maker, having regard to the circumstances of the case and the policy in the National Planning Policy Framework. In particular; the effect of a particular development on the setting of a listed building – where, when and how that effect is likely to be perceived, whether or not it will preserve the setting of the listed building, whether, under government policy in the NPPF, it will harm the "significance" of the listed building as a heritage asset, and how it bears on the planning balance – are all matters for the planning decision-maker. This is subject to the decision maker giving considerable importance and weight to the desirability of preserving the setting of a heritage asset ... Catesby Estates Ltd v Steer [2019] 1 P. & C.R. 5 per Lindblom LJ at [30]).
g) Unless there has been some clear error of law in the decision-maker's approach, the court should not intervene. This kind of case is a good test of the principle stated by Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2017] 1 WLR 1865 (at paragraph 25) – that "the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly" ... Catesby Estates Ltd v Steer [2019] 1 P. & C.R. 5 per Lindblom LJ at [30]).
Parties' submissions:
The claimant
- The Claimant's argument that the Secretary of State had failed to interpret properly or apply heritage policy (ground 1) focussed on what was said to be a non-sequitur or inconsistency in paragraph 29 of the Decision: the Secretary of State noted that "the significance of the GUC lies in its historic and architecture value", and, by implication, not its setting. It flowed that change or harm to setting would not result in any harm to the significance of the GUC CA. The Secretary of State could not therefore lawfully conclude that there would be moderate harm to the setting of the GUC from the proposed development. There is no explanation of how the architectural and historic significance maps onto the significance of the setting and why. The same mistake is made in relation to the analysis of the impact on the Turnover Bridge at [31] of the Decision letter.
- The Minister exercising the powers delegated to him by the Secretary of State did not go through the proper analysis set out in Catesby Estates v Steer and his reasoning was opaque. He is not saved by reliance on the Inspector's report since he found a higher level of harm than the Inspector – and that departure from the Inspector's careful findings was itself inadequately explained. He also failed to address the Claimant's evidence on the central point of the dispute between the parties and explain why he rejected that evidence and the Claimant's submissions without specialist heritage evidence to the contrary.
- It was submitted that the Minister could not rely on the Inspector's report since the Decision makes its own heritage balance.
- There were substantial doubts that the Decision was made within the Secretary of State's powers under PLBCAA 1990 or s.288 TCPA 1990 and should be quashed so that it could be retaken.
- Furthermore there is an inaccurate reference to "river valleys" which is not applicable to the Site which is some way from river valleys in other parts of the GUC CA – thus amounting to an irrelevant consideration that has been taken into account.
- The second part of ground 1 alleged shortcomings in the Minister's approach to EN-3 and GPA3. The Decision fails to attach sufficient relevance to the temporary nature of solar projects when assessing heritage effects, whatever the size or scale of a proposed development. Although the Decision refers to the benefit of the production of renewable energy there was said to be a startling absence of any reference to climate change, energy security, and the urgency of meeting net zero targets.
- In ground 2, where permission to appeal is also to be considered, the Claimant relies on the GW DL, made two days later by the Secretary of State where permission was granted in what was submitted to be a materially similar proposed scheme. In reaching the opposite decision in this case, the Secretary of State was said to have failed to have had regard to the importance of consistency in decision-making and failed to give reasons for his departure. To the extent that there were differences in the Great Wymondley proposal, the harm caused was considerably greater than in the GUC CA making it all the more strange that permission was refused in this case.
The Defendant's submissions
- In its defence to ground 1, the Defendant submitted that the Minister was entitled to rely on and adopt the Inspector's report in the Decision and the Inspector had dealt with all matters comprehensively. The different planning judgment reached by the Secretary of State to that of the Inspector did not invalidate the Inspector's considerations and analysis. The two documents together provided legally adequate reasons so that the Decision was cogent, logical and internally consistent and in sufficient detail following the correct legal approach. There had been no conflation or confusion between the harm to a heritage asset and that of its setting. There was no clear error of law in the IR or the Decision and the claimant had adopted an over critical approach to the Decision which was rational, sound and based on a correct understanding of the policies and legal framework to be applied.
- The criticism in the second part of ground 1 was also misplaced. Whilst EN-1 and EN-3 were agreed to be relevant and a material consideration they were not determinative since the size of the Development fell just below the NSIP threshold.
- As to ground 2, the GW DL was distinguishable and different in many ways from the facts relevant to the Decision in this case and the different outcome in the GW DL did not impinge on the rationality of the decision in the GUC CA here.
Analysis and Conclusions
- This is a statutory review under s.288 TCPA 1990 questioning the validity of a decision made by the Minister under powers delegated by the Secretary of State on an appeal under s.78 by the claimant, who is aggrieved by the Decision, who questions the validity of the Decision on the grounds that it is not within the powers of the TCPA and/or that the relevant requirements have not been complied with. The principles by which planning decisions will be quashed are well established and the recent key authorities and principles are set out above and are not in dispute.
- Questions of weight and planning judgment are exclusively for the decision maker, as are findings of fact, absent arguments of irrationality and perversity.
Ground 1 – heritage assets and setting
- Here the central challenge in ground 1 is that the Minister failed properly to interpret or apply heritage policy and EN-3 and the challenge is most sharply focussed on the DL approach to the impact of the Development on the identified heritage assets and their settings.
- The Decision letter made clear that the Secretary of State agreed with the Inspector's conclusions, except where stated, but disagreed with the recommendation (paragraph 3). He identified the relevant policies and statutory considerations – he had regard to s.38(6) Planning and Compulsory Purchase Act 2004 (PCPA 2004), which requires that proposals be determined in accordance with the development plan unless material considerations indicate otherwise. He noted that the Development did not comply with the two relevant development plan documents, and no issue is taken with that part of the Decision.
- Special regard was had to the desirability of preserving listed buildings potentially affected by the Development, or their settings, or any features of special architectural or historic interest in accordance with s. 66(1) PLBCAA 1990.
- The Decision accurately records that on landscape character and appearance the difference between the main parties "was essentially judgments of effects based on the susceptibility and sensitivity of the landscape, and the extent of visual harm from the introduction of panels in views from the footpaths, the canal and to a lesser extent, identified longer views from outside of the appeal site parcels." [15] The first defendant considered that there would be a significant impact on the landscape character and appearance for a number of years on both the 2 public rights of way running through the northern parcel and the towpath along the GUC, disagreeing with the claimant's landscape witness and agreeing with the Council's. He concluded that it would extend well beyond the first year and beyond 15 years and that the landscape mitigation and deciduous tree planting would not be effective at certain times of year. High susceptibility to change should be afforded in the northern parcel, but medium susceptibility to change to the southern parcel. The defendant agreed that the proposal would harm the character and appearance of the area for the reasons given by the Inspector – it is an essentially rural area with small historic settlements and attractive and valued features, but disagreed with the Inspector's assessment of the level and temporal nature of the harm, concluding that there would be "major visual harm in the early years of the proposal reducing to major-moderate harm over time". He also noted the conflict with the Development Plan.
- The key findings and conclusions of the first defendant on heritage assets is set out above at paragraph 14 and it is these paragraphs that require the most attention. In order properly to understand them it is necessary also to consider paragraphs 10.64 – 10.74 of the IR on which they draw. Although at the IR stage heritage assets was not a main issue, the Inspector still dealt with it fully explaining that it was necessary to consider the effect of the Development on the character and appearance of the conservation areas and the setting of nearby listed buildings. He also noted that the s.66(1) PLBCAA 1990 requirement of the Secretary of State to have special regard to the desirability of preserving a listed building or its setting. Even though the Site does not lie in a conservation area, the effect on the setting of the heritage assets needs to be considered. These were the Inspector's findings and conclusion on the GUC CA and the Development northern parcel.
"10.66 The GUC CA borders the northern parcel. The CA Management Plan describes the overall character as being defined by the gently curving canal, the modest grassy towpath and the surviving bridges, with its setting being of particular note as it passes through the river valleys. It acknowledges that, in places, the hedgerows completely contain views along it, which to an extent is the experience here when considering the outlook to the north and the appeal site. The significance of the GUC lies in its historic and architectural value, which to my mind includes the engineering of the contoured route of the canal.
10.67 I have found no particular relationship and no views between the marina area and the northern parcel, nor do I consider that it forms part of the setting here. However, an appreciation of the raised and embanked form is a component in understanding the historic and architectural significance of the canal, and the northern parcel has a part to play in that. In addition, views from raised areas, and the Turnover bridge provide exactly that, allowing an appreciation of not just the engineering, but also the rural setting through which parts of the canal run. The northern parcel is therefore an element of the setting of the GUC CA.
10.68 The effect of the site on the landscape or visual experience are not the same as its contribution to the heritage significance of the canal, nonetheless, I consider the introduction of solar panels would alter the relationship to the canal and appreciation of its embanked form within a rural landscape. Consequently, I consider there would be harm to the setting of the GUC.
10.69 The scale of this is limited to the short stretch in what is a very long linear CA. The harm to the CA as a whole, would therefore be limited and at the lower end of less than substantial harm, when considered on the context of the Framework."
- The point of difference between the Inspector and the Secretary of State was thus the level of harm to the setting and heritage assets, the first defendant finding it to be moderate, even in the short stretch and in the lower to middle end of less than substantial harm, rather than the Inspector's assessment of limited harm.
- The other point of difference between the IR and the first defendant concerned the Turnover Bridge. The first defendant agreed with the Inspector's analysis that the Turnover Bridge provides important context to the historic use of the canal and its significance was both architectural and historic and its historic value and functional purpose was intrinsically linked to the canal which is a key component of its setting and on crossing the bridge, parts of the northern parcel would be evident. The Inspector considered that the northern parcel is part of the setting of the bridge. The proposed planting would increasingly screen the views which establish a relationship between the Site and the bridge and impact on the rural setting the canal runs through since the views from the Turnover Bridge provide a view to appreciate the engineering and architecture as well as the setting. He concluded that there would be a low level of harm to that setting, at the lower end of less than substantial harm.
- A fair reading of the Decision as a whole including the adoption of the Inspector's analysis, does not demonstrate that the first defendant has equated harm to setting with harm to significance. The Inspector clearly considered the interplay between the setting and the heritage assets in his careful analysis and adopted the three stage approach in Catesby Estates – it is implicit from the Decision that it is the effect of the Development on the heritage asset from the impact to its setting that is being scrutinised by the Secretary of State, not the harm to the setting itself in an abstract sense divorced from the heritage asset, nor a conflation of the two aspects. He understood the distinction between the two separate matters. It could perhaps have been worded more clearly in the Decision, but that would be to adopt a hypercritical tone when the meaning is clear, especially when read in conjunction with the IR. He also sets out sufficiently why the harm to the setting impacts on the heritage asset of GUC CA – it is because of the overall character of the GUC being partly defined by its setting in the rural landscape and the engineered contours of the canal through the landscape. Furthermore, even if the significance of the GUC, or any heritage asset lies in its historic and architectural value, it does not necessarily follow that changes to its setting will do no, or only limited harm to the heritage asset.
- It is also clear from the paragraphs in the Decision about the impact of the Development on the Turnover Bridge that the first defendant has had the correct approach in mind and followed it when considering both heritage assets potentially affected by the Development. It does not feature in consideration of Gayton CA and everyone agreed that the significance of that heritage asset would be preserved if the Development were to be given permission to go ahead.
- As noted by Thornton J in London Historic Parks at 31(b) "The significance of a heritage asset derives not only from an asset's physical presence, but also from its setting."
- A further point in support of the central plank of the claimant's case in ground 1(i) can be dealt with more swiftly. It is a misreading of the Decision to conclude that the first defendant wrongly considered that the Development was close to a river. The point being made by both the IR and the first defendant about river valleys is an observation about the whole of the 26 miles of GUC CA, to give context, not the directly affect part of the canal, adjacent to the Development. It is too much of a stretch to conclude that the first defendant misunderstood the analysis of the relevant area to think that it was in a "sensitive river valley area" and those words do not lead to a conclusion that the first defendant misunderstood the geographical location. In any event, even if I am wrong about that, it is mentioned so cursorily as to not form part of the ratio of the Decision or have been a material consideration taken into account.
- So having established that the first defendant did not commit the error of law alleged, it follows that the first defendant was entitled to make his judgment that the harm to the GUC CA from the harm to the setting was moderate, in the lower to middle end of less than substantial harm. See London Historic Parks at 31(f). Others might have reached a different decision, and indeed the Inspector did and it is not to say that the Inspector was wrong, but it was a decision open to the first defendant in the exercise of his judgment.
- He was also entitled to conclude that the Development would conflict with the development plan – S10(i) which seeks to protect, conserve and enhance the natural and built environment and heritage assets and their settings.
- The next challenge in ground 1(ii) is whether the first defendant's approach to the heritage planning balance – whether the less than substantial harm was outweighed by the public benefits of the proposal.
- As noted above, the Secretary of State found that the Development was not in accordance with three specific aspects of the development plan or the development plan overall, but went on to consider if there were material considerations which indicated that the Development should be determined other than in accordance with the development plan.
- As Lieven J's observed in Marks and Spencer v Secretary of State for Levelling Up Housing and Communities [2024] EWHC 452
"It is in my view very important that the test for impact on heritage assets do not become even more complicated, and subject to an even more complex legal reasoning process, than is presently the case."
- She went on to note in that case that
"Although the SoS's ascription of weight to impact on setting is somewhat surprising in this case, the Claimant is not advancing a Wednesbury argument."
- The situation is identical here. The canal and the bridge are heritage assets for historical and architectural reasons. Historically canals were means of transport of goods with incipient early light industrial infrastructure alongside. I note from the ordnance survey map it is now sandwiched between main roads, the west coast mainline railway with an abattoir and sewage works nearby and others may consider that the addition of solar panels in the setting of the GUC CA would not have quite the detrimental effect that the Secretary of State considered would be the case. But this was a value judgment for the Secretary of State to make.
- The Minister on behalf of the Secretary of State recognised that providing renewable energy for over 13,000 homes with carbon savings estimated to be more than 11,000 tonnes per annum should be afforded significant weight. However overall the Secretary of State concluded that the public benefits were not collectively sufficient to outbalance the "less than substantial harm" to the significance of the heritage assets. In applying s.38(6) PCPA 2004 he considered that the conflict with the development plan and he concluded that the material considerations indicated that permission should be refused. Again others might have given greater weight to the importance of producing renewable energy, but it was for the first defendant to make his planning judgment having assessed the relevant and material considerations correctly which he did.
- In ground 1(ii) the difficulty for the claimant is also the breadth of the planning judgment open to the first defendant as the decision maker. The Decision accurately identified and addressed the material considerations. The Development fell just below the scale necessary for it to be a nationally significant infrastructure project and it fell to be determined under TCPA 1990. So whilst EN-1 and EN-3 were relevant considerations they were not determinative or binding and it was for the first defendant to taken them into account, which he did, and make a planning judgement on the Development proposed. Others might not have reached that decision and might have concluded that the importance and urgency of reducing reliance on fossil fuels would be of substantial, rather than merely significant weight and tip the balance the other way, but having correctly directed himself it was open to the Minister to arrive at that decision.
- Many of the points raised during the hearing before me were matters that the claimant raised during the public inquiry and during the planning application process. A statutory review is not an opportunity for a rehearing. The Minister understood the relevant considerations – the temporal nature of the scheme, the planting and other mitigating steps proposed, but it was for him to decide their relative weight.
- The reasoning is sufficiently clear. Since the first defendant specifically adopted and endorsed the IR (save where those parts that he specifically disagreed with and explained his reasons for doing so) the Decision and those parts of the IR that he adopted can be considered together as forming the reasons for the Decision. It is therefore not correct that the first defendant may not rely on the IR to "rescue" the Decision, as the claimant put it.
- The appeal on ground 1 is dismissed. The claimant has not established that the first defendant failed properly to interpret or apply heritage policy.
Ground 2
- The claimant's argument that the different outcome of the Great Wymondley planning application in the GW DL two days before the Decision in this case was an inconsistency that required detailed explanation is predicated on both planning proposals being sufficiently comparable for the different decision in this case to amount to a departure from a previous decision (see North Wiltshire District Council v Secretary of State for the Environment and Clover [1992] 3 PLR 113). The Great Wymondley application was not sufficiently similar to the Development in the claimant's application to be a material consideration that was ignored in this case and only to be departed from with a properly reasoned explanation, since the Great Wymondley scheme was not in conflict with the development plan, unlike in this case. That was an important distinguishing feature that did not require a detailed explanation for the discrepancy in outcome of the two planning applications.
- I can well understand how disappointing it was for the claimant to have its application refused and their confidence may have been buoyed by the GW DL but there is no error of law in the defendant's Decision by not addressing the different outcome in this application to the GW DL. Nor do any of the other points raised by the claimant either individually or collectively give rise to an arguable claim.
- Permission to bring statutory review proceedings in ground 2 is refused and the application dismissed.