3 December 2015
Further to Dawn Adams's previous musings on the potential of the challenge to the Court of Appeal in respect of the Mordue high court judgement, the Court of Appeal decision has been issued today (3rd December).
In essence, the judgement focuses on the mechanics of how a decision maker’s reasoning needs to be set out, it does not seek to materially change or alter how developers and local authorities should assess planning applications which have an impact on a heritage asset.
The deputy judge in the High Court quashed the appeal decision allowing a wind turbine due to the absence of a specific textual reference confirming that the Inspector had attached considerable weight and importance to the desirability of preserving the setting of the listed buildings. The absence of these specific words meant that the deputy judge felt compelled to quash the appeal decision, in accordance with his interpretation of the Barnwell decision.
The Court of Appeal, however, has concluded that the deputy judge was wrong to regard himself as “bound” to follow such a strict interpretation of Barnwell. Instead, the Court of Appeal confirmed that the long established principles (Save Britain’s Heritage v Number 1 Poultry ltd ) that “the adequacy of reasons is not to be judged by some abstract standard” continues to be applied. That is, it is sufficient to consider a decision letter in the round, and that where an Inspector has identified the relevant Local Plan policies and Framework paragraphs then “the appropriate inference is that he has taken properly into account all those provisions.”
In conclusion, Mordue confirms that proper analysis of heritage assets requires that considerable weight has been given to the desirability of preserving relevant listed buildings, but that a decision maker can demonstrate that they have done this without expressing this weight through those very specific words.