A blog about planning, planning law and planning policy

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The information on this blog is not intended to be advice, legal or otherwise. You should not rely on it and I do not accept liability in connection with it. If you do have a planning law question on which you would like advice, seek legal advice from a suitably qualified solicitor. Specific advice should be sought for specific problems.

Lyveden New Bield v. Barnwell New Windfarm – pay attention

Lyveden_New_BieldLast Friday the National Trust, English Heritage and East Northamptonshire District Council succeeded in quashing the Secretary of State’s decision to grant permission for a wind farm which would affect the setting of Lyveden New Bield, the Grade I unfinished Tudor house and garden.  They succeeded on three grounds, failure to give effect to the duty to pay special regard to the desirability of preserving the building or its setting or its features of special architectural or historic interest (s.66(1) of the Listed Buildings Act 1990), failure to interpret and apply planning policy correctly and failure to give adequate reasons I am not going to look at the second and third grounds, but the first ground causes difficulties when we think about the traditional approach to material considerations.

Section 66 speaks of the need to pay special regard to the desirability of preserving the setting.  The case law history of the section began in 1988 with Steinberg v. Secretary of State, a decision which surprised most planning lawyers, the more so as it was a successful challenge by two litigants in person.  The Court decided that there was no evidence that the equivalent provision for conservation areas, which required special attention to be paid to the desirability of preserving or enhancing the area, had been taken into account.  Importantly it held that the underlying purpose of the section was positive, rather than simply preventing harm.

Then in Bath Society v. Secretary of State, the Court of Appeal volunteered views on what paying special attention meant. It must, they said, be regarded as having considerable importance and weight.  The House of Lords in South Lakeland v. Secretary of State had to consider Bath and the Steinberg and said that “There is no dispute that the intention of section 277(8) is that planning decisions in respect of development proposed to be carried out in a conservation area must give a high priority to the objective of preserving or enhancing the character or appearance of the area. If any proposed development would conflict with that objective, there will be a strong presumption against the grant of planning permission, though, no doubt, in exceptional cases the presumption may be overridden in favour of development which is desirable on the ground of some other public interest”.  And so, in Lyveden New Bield the Court said that “a decision maker should accord considerable importance and weight to the “desirability of preserving…the setting” of listed buildings”.

This line of reasoning however goes contrary to the classic approach to material considerations which is that weight is for the decision maker to decide –see a string of cases such as Seddon Properties in 1980, ending in Tesco v. Secretary of State in 1995. The Court in Lyveden recognised this and said that the words of Lord Hoffman in Tesco had to be qualified when s.66 is in play.  It also goes contrary to the language of the sections, which simply state that special regard or special attention is to be paid to a particular aspect.  The duty to pay regard to something has long been held to be just that; pay regard, and having paid regard, take your decision. But the decision does not have to accord with the thing to which you have paid regard. So paying special regard should be approached in the same way. Look at this factor especially, think about it very carefully, and having done so, take your decision.  If Parliament had wanted to say that the factor was to have extra weight, it could have said so. But it didn’t, and rightly so, because if it had done that it would have had to have said how much extra weight, and in a system where weight of everything else is left to the decision maker, you can’t do that without specifying the weight to be given to everything.

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