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"War Horse" wind turbine proposal rejected after Inspector applies recent Court of Appeal guidance

The Planning Inspectorate has dismissed an appeal against a refusal of planning permission for a single wind turbine in Iddesleigh, Devon. The case hit the press after it was revealed that the turbine would be situated in the rural setting of bestselling novel "War Horse". Author Michael Morpurgo was one of numerous objectors to the proposed development.

The Inspector reached his decision after applying guidance laid down by the Court of Appeal in Barnwell Manor Wind Energy Limited v East Northamptonshire District Council and others [2014] EWCA Civ 137 (the "Barnwell Manor Case"). This recent judgment sets out the correct approach for assessing whether the advantages of a development proposal outweigh any harm to heritage assets.

Barnwell Manor

In the Barnwell Manor Case, the Court of Appeal considered how section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 should be applied. This section imposes a duty on local planning authorities and inspectors, when considering planning applications, to have "special regard" to the desirability of preserving listed buildings or their settings or any features of special architectural or historic interest which they possess.

The court came to the following conclusions:

- The first question to ask when applying section 66(1) is whether the proposed development will harm (a) the listed building, (b) the listed building's setting, or (c) any special architectural or historic features.
- Having determined that there is harm, the LPA/Inspector must carry out the balancing exercise: they must decide whether the advantages of the development outweigh the harm caused by it.
- In carrying out the balancing exercise, the harm must be given considerable importance and weight. The LPA/Inspector is not free to give the harm such weight as they choose.
- This means that whether the harm identified is substantial or less than substantial, the balancing exercise will always require the LPA/Inspector to attribute considerable importance and weight to that harm.
- Because of the considerable importance and weight attached to the harm, there is also a strong presumption against granting planning permission in these cases.

Iddesleigh wind turbine

The Inspector considered the effect of the development proposal on a number of heritage assets in the locality. In respect of a nearby Grade II listed farmhouse, the Inspector noted that this building's setting had already been damaged by the addition of modern agricultural buildings, but found that there would still be a moderate negative impact due to the intrusive effect of the turbine. Additionally, the development would have a moderate impact on the historic landscape because the tower of St James Church, a Grade I listed building deliberately designed to be the highest in the area, would no longer be the most prominent structure in the vicinity.

The Inspector concluded that these effects comprised less than substantial harm to the heritage assets in the area. It was also noted that the proposal would provide a valuable contribution to cutting greenhouse gas emissions. Nevertheless, the harm was given considerable importance and weight and there was a strong presumption against granting planning permission. Accordingly, the acknowledged environmental benefits did not outweigh the harm and the appeal was dismissed. Despite having assessed the benefits as valuable and the harm as less than substantial, this did not mean that the harm was acceptable.

Comment

This case is just one in a series of recent appeal decisions since the Barnwell Manor Case that provide valuable examples of the correct application of section 66(1). It is now firmly established that the balancing exercise is not a simple case of determining whether the benefits of a proposal outweigh the harm to heritage assets in a general sense. Rather, the issue is whether the benefits outweigh the harm to such an extent so as to override the considerable importance and weight attributed to the harm and the strong presumption against the grant of planning permission. Consequently, where harm is identified and the benefits are not significant, proper application of section 66(1) must lead to a refusal of planning permission, as was the case in the Iddesleigh wind turbine appeal.