A case (Palmer and Herefordshire Council & Another) recently found its way to the Court of Appeal, dealing with the weight that a decision maker should attach to the possible effect of a development on listed heritage assets in the overall determination process of a planning application.
S66(1) of the Planning (Listed Building and Conservation Areas) Act 1990 provides that 'in considering whether to grant 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. As a consequence the desirability of preservation must be given considerable importance and weight in the decision making process.
Paragraph 132 of the National Planning Policy Framework ("NPPF") provides that when considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the assets conservation. The more important the asset, the greater the weight should be.
Paragraph 134 of the NPPF states 'where a development proposal will lead to less than substantial harm to the significance of a heritage asset , this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use.
The case concerned the erection of 4 large broiler sheds to accommodate around 45,000 chickens which was in close proximity to a Grade II listed building. The challenge to the Council's approach came from a neighbour who owned a neighbouring holiday complex on the basis that the Council had failed to apply the appropriate consideration to the heritage assets in its determination of the application. In reality rather than the effect on the listed building the true motivation of the neighbour may have been to protect his adjoining holiday complex.
Issues of visual harm and the effect of odour had been identified as the two key issues that could have affected the Grade II listed building. The case officer in the committee report considered each of the factors in the context of the listed building and took into account mitigation that was put forward in terms of physical screening to deal with the visual impact and odour control measures to address identified concerns and reached a judgement that as a consequence of the mitigation measures the harm caused to the buildings was not substantial.
The grounds of challenge were that the Council had failed to comply with its statutory duty under s66 of the Planning (Listed Building and Conservation Areas ) Act 1990.
The Court of Appeal held that whilst there was not explicit mention of the duty under section 66, the rationale of the specialist officers was clear in that they had considered the impact of the proposal on the heritage asset and engaged with the relevant policies in the local plan and as such had carried out, the appropriate level and depth of consideration to decide whether the desirability of preserving the setting of the listed building had been considered.
Whilst not explicitly setting out consideration of Section 66 nevertheless the Officers had identified potential harm and how it could be mitigated and after considering such mitigation decided that the benefit of the development outweighed any potential harm and this was an acceptable way to approach the issue.
The decision gives guidance as to how committee reports should be construed and re- states the principle set out in Samuel Smiths Old Brewery(Tadcaster) v Selby District Council, that to succeed in judicial review it has to be shown that the overall effect of the report significantly misleads the committee about material matters, which remain uncorrected at the committee before a decision is made.
In this case the report was found to have adequately dealt with the relevant material considerations.