R (on the application of KATHARINE BUTLER) (Claimant) v EAST DORSET DISTRICT COUNCIL (Defendant) & GOOD ENERGY MAPPERTON FARM SOLAR PARK (007) LTD (Interested Party) (2016)

The claimant applied for judicial review of a decision of the defendant local authority to grant a 30-year planning permission for a solar photovoltaic farm.

The site was 670m from a conservation area and was also one kilometre from a Grade I listed building and a Grade II* registered park and garden containing a Grade II* listed building.

The claimant submitted that the planning officer had (1) wrongly concluded that the proposed development conformed with policy HE1 of the Core Strategy; (2) failed to consider whether the proposal complied with the heritage criterion of policy ME5 of the Core Strategy; (3) failed to decide whether the proposal accorded with the development plan taken as a whole, as required by the Planning and Compulsory Purchase Act 2004 s.38(6).

The local authority argued that even if the claimant’s grounds of challenge were made out, the court should not grant relief because the legal errors would have made no difference to the ultimate decision.

HELD: (1) It was clear from the officer’s report that he had concluded that the development would result in harm, albeit less than substantial harm, to the significance of designated heritage assets. That meant that there would be a conflict with policy HE1 which stated that “heritage assets…will be conserved” and that “the significance of all heritage assets…will be protected”. Special attention had to be paid to the desirability of preserving or enhancing a conservation area’s character or appearance under the Planning (Listed Buildings and Conservation Areas) Act 1990 s.72(1). A heritage asset was not conserved if its significance was harmed and its significance was not protected if it would be harmed by a development proposal, South Lakeland DC v Secretary of State for the Environment [1992] 2 A.C. 141 applied. The fact that the harm identified might only be temporary, albeit for 30 years, had no bearing on how the policy should be interpreted. The policy made no distinction between temporary and permanent harm. The officer had wrongly interpreted the policy when he advised the planning committee that the proposal would accord with policy HE1 (see paras 18-21 of judgment).

(2) Policy ME5 was the key development plan policy dealing with renewable energy and contained a criterion that a proposal for renewable energy apparatus should avoid harm to the significance and setting of heritage assets. The officer had identified that the proposed development would cause such harm. So far as heritage assets were concerned, only an avoidance of harm was acceptable. The officer therefore should have advised the committee that the criterion was not met because such harm would not be avoided (para.27).

(3) A judgement about whether a development proposal was in accordance with the development plan could be implied from a fair reading of the officer’s report as a whole, even where that judgement was not set out in express terms, R. (on the application of Hampton Bishop PC) v Herefordshire Council [2014] EWCA Civ 878, [2015] 1 W.L.R. 2367 considered. However, in the instant case the officer’s report was unclear and there was considerable doubt as to whether he was of the view that the proposal was in accordance with the development plan taken as a whole. The officer had not carried out his duty under s.38(6) (para.32).

(4) The exercise of deciding whether an application for planning permission was in accordance with the development plan was an essential part of the decision-making process. The planning authority needed to understand the nature and extent of any departure from the development plan in order to properly consider whether such departure was justified by other material considerations. It was only in that way that the planning authority could give the development plan its statutory priority. It could not be said that the planning committee would have been highly likely to vote to grant planning permission if it had been properly advised that the proposal was in breach of key policies dealing with heritage assets and renewable energy. For that reason, there was no requirement to refuse relief under the Senior Courts Act 1981 s.31 and the planning permission would be quashed, Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P. & C.R. 306 considered (paras 37-38).

Application granted

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