1st October 2015
The seminal ‘Barnwell Manor’ judgement in 2014 had a significant impact on how heritage aspects of planning applications throughout England and Wales have been addressed. But could a current Court of Appeal case find that the ruling has been misapplied? Dawn Adams, a planner with our Birmingham team, looks at important implications for applications which have an impact on the setting of a heritage asset.
The judgement at Barnwell Manor Wind Energy Ltd v East Northants District Council, English Heritage, National Trust & SSCLG , quashed an Inspector’s decision to approve four wind turbines on land near the 17th century Barnwell Manor in Northamptonshire. The scheme was within the purview of 40 designated heritage assets, including the Grade I listed Drayton House and the National Trust property Lyveden New Bield.
The application and Inspector’s decision at Barnwell had been made before the adoption of the NPPF so the case was based on the Planning Policy Statement 5 wording. Nonetheless, Lord Justice Sullivan held that, in enacting Section 66(1) of the Listed Buildings Act 1990, Parliament intended 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. It should be given ‘considerable importance and weight’ when the decision-maker carried out the balancing exercise. It confirmed that ‘preserving’ meant doing ‘no harm’. But Lord Justice Sullivan said that this created a ‘strong presumption against the grant of planning permission’. It is that ‘strong presumption’ which made Barnwell stand out from earlier decisions.
The practical implication of Barnwell was to tip the scales heavily in favour of preserving the setting of heritage assets. Even in cases where there was less than substantial harm (National Planning Policy Framework para 134), the bar for the benefits of proposals to override the harm to the setting of a heritage asset, was set very high.
The ruling has since been cited in many decisions on heritage assets and is frequently referred to by local planning authorities seeking to resist development. Earlier this year, it was instrumental in a win for Northamptonshire wind farm protestors in the High Court (Jane Mordue v Secretary of State for Communities and Local Government and others). In this case, the Deputy Judge John Howell QC quashed the decision of a planning inspector to allow a 60-metre high wind turbine which would have had an impact on the setting of a Grade II* Listed Church.
Over-ruling that Inspector, Howell held that the consequence of the Barnwell Manor judgment was to put the onus of proof on the decision-maker to demonstrate that they had given considerable importance and weight to the impact on heritage assets. He considered that he was bound by ‘Barnwell’.
But in May, the same judge as in the Barnwell case, Lord Justice Sullivan, sitting in the Court of Appeal, made an Order to allow a challenge to the Mordue Judgement to be referred up to the Court of Appeal. In allowing the challenge to move to the superior Court, Sullivan was critical of how his own judgement at Barnwell had been interpreted. Was he beginning to regret his previous comments on Barnwell? Specifically, he said that there was a good prospect that the Court of Appeal would allow the challenge because either:
• The Deputy Judge in Mordue had misunderstood the Barnwell case judgement or,
• The Court of Appeal would find that the Barnwell case judgement was characterised by a lack of due regard to the law or facts and should not be followed.
Referring to the latter, Lord Justice Sullivan said: ‘It is arguable that the Deputy Judge paid insufficient attention to the factual distinctions between East Northamptonshire, which was a pre NPPF case, and the present case’.
Given the importance of Barnwell and its widespread use, the current challenge to Mordue is being fast tracked to a possible November hearing date. Perhaps we will then have a clearer understanding of how the weight to be attached to heritage assets should be assessed in the planning balance. Will Barnwell, or its misapplication, be consigned to history?
Applicants pursuing development proposals with effects on heritage assets and/or their settings continue to be best advised to present their case in a manner which carefully distinguishes between the provisions of sections 16(2), 66(1) and 72(1) of the Planning (Listed Building & Conservation Areas) Act 1990 and the guidance of the NPPF. Barnwell is careful to identify this distinction but there remains considerable fogginess between the two in practice. Proposals should clearly make their case in terms of the ‘special attention’ and ‘special regard’ referred to in the Act, and the desirable objective of preservation. Any debate surrounding a consideration of levels of ‘harm’ caused to assets sits below this in the hierarchy of assessment and, as Barnwell rightly states, any assessment of “less than substantial” harm in terms of the NPPF does not equate to a “less than substantial objection” in the application of the Act.’
For more information contact Dawn Adams firstname.lastname@example.org or on 0121 456 7444