PLANNING DECISIONS AND THE IMPACT ON MONUMENTS AND LISTED BUILDINGS: R (on the application of Williams) v. Powys County Council.
The purpose of the creation of the notion of a monument and its site was preservation rather than amenity. In the case of a listed building, however, there is a requirement to protect the setting as well as the site. If a proposed development is to affect the setting of a listed building, there should be a distinct visual relationship between the two which would bear on one's experience of the listed building in its surrounding landscape or townscape. However, the mere fact that both the listed building and the development could be seen at the same time did not necessarily mean that the development would affect the setting of the listed building.
In September 2014 Mr Bagley applied to Powys County Council ('the County Council') to erect a wind turbine on his property at Upper Pengarth, Llandeilo Graban, Wales, within two kilometres of Llanbedr Church, a grade II* listed building, and two scheduled monuments, namely Llandeilo Graban Motteand Llanbedr Hill Platform House. The possible effect of the development on the setting of the scheduled monuments and listed church was recognised by Mr Bagley in the Planning, Design & Access Statement ('PDAS') accompanying his development application. The PDAS concluded that the effect on views and setting of the listed structures and monuments was slight, and that no further mitigation was necessary. In May 2015 the County Council granted planning permission for the turbine and in July and August 2016 it was erected on Mr Bagley's property.
A local resident, Mr Williams, who had objected to the proposal, sought a judicial review of the decision in the High Court claiming that the County Council had failed to comply with a planning requirement that the Welsh Ministers should have been consulted for a development that that was likely to have affected two scheduled monuments. In addition, the County Council had failed to exercise its duty under legislation applicable to listed buildings, that is, to have had special regard to the desirability of preserving the setting of a listed building.
The legislative and policy provisions applicable at time of the planning application for the wind turbine were:
* Article 14 of the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 (the DMP Order 2012) which provided that before granting planning permission for development which fell within a category set out in Schedule 4, a local planning authority must have notified and consulted the authority, body or person mentioned in relation to that category (the consultee) and considered any representations received from a consultee before determining the application.
'Development' in paragraph (k) in Schedule 4 was development likely to affect 'the site' of a scheduled monument. The consultee was stated to have been 'The Welsh Ministers'. The requirement to consult the Welsh Ministers would have been discharged by consultation with Cadw.
'Scheduled monument' in Schedule 4 had the same meaning as 'scheduled monument' in section 1(11) of the Ancient Monuments and Archaeological Areas Act 1979 (the 1979 Act) which was "any monument which was for the time being included in the Schedule".
'Monument' was defined by section 61 of the 1979 Act as "any building ..., any site comprising the remains of any such building ..., any site in Wales ... comprising any thing ... that evidenced previous human activity". The site of a monument included not only the land in or on which it was situated, but also any land comprising or adjoining it which was essential for the monument's support and preservation.
* Chapter 6 of Planning Policy Wales, Edition 7 July 2014 which stated that the desirability of preserving an ancient monument and its setting was a material consideration in determining a planning application, whether that monument was scheduled or unscheduled. Where nationally important archaeological remains, whether scheduled or not, and their settings were likely to be affected by proposed development, there was a presumption in favour of their physical preservation in situ. Local planning authorities were required to consult the Welsh Government on any development proposal that was likely to affect the site of a scheduled ancient monument.
* Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Listed Buildings Act) which provided that in considering whether to grant planning permission for development which affected a listed building or its setting, the local planning authority, or the Secretary of State shall have had special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possessed ('the section 66(1) duty').
* Policy ENV14 of Powys Unitary Development Plan (2010) ('the UDP'), Welsh Office Circular 61/96 and Planning Policy Wales, Edition 7 which reflected the section 66(1) duty.
* 'Conservation Principles for the sustainable management of the historic environment in Wales', published by Cadw in March 2011, which defined the 'setting' of an 'historic asset' as the surroundings in which an historic asset was experienced, its local context, embracing present and past relationships to the adjacent landscape. An 'historic asset' was defined as an identifiable component of the historic environment, which may have consisted of or have been a combination of an archaeological site, an historic building, or a parcel of historic landscape.
* The National Planning Policy Framework for England which defined the 'setting of a heritage asset' as the surroundings in which a heritage asset was experienced. Its extent was not fixed and could change as the asset and its surroundings evolved.
In March 2016 The Town and Country Planning (Development Management Procedure) (Wales)(Amendment) Order 2016 replaced paragraph (k) of the DMP Order 2012 with paragraph (1) which identified two categories of proposals on which the Welsh Ministers were to be consulted. The first was development which had a 'direct physical impact' on a scheduled monument. The second was development 'likely to be visible from' a scheduled monument, which also met one of the specified criteria of distance, height and area.
Mr Williams' claim for judicial review was dismissed in the High Court. The Judge held that the County Council, when granting planning permission for the wind turbine, had not erred by failing to have consulted the Welsh Ministers upon the likely effects of the development on the settings of two scheduled monuments. The Judge stated that the purpose of the creation of the notion of a monument and its site was preservation not amenity. Under the DMP Order 2012 a development affected the site of a scheduled monument only if it had an impact on the monument or its site that either was direct or would have prevented any land comprised within the monument from continuing to provide necessary protection. Therefore impacts on amenity, including visual amenity, were not effects on the site of the monument. As it had not been stated that the effect of the development on any scheduled monument would have been other than visual there was no duty under the DMP Order 2012 to consult Cadw.
The Judge also held that the County Council had not erred in failing to have considered the likely effects on the setting of a grade II* listed church. The Judge acknowledged that the County Council had not performed the section 66(1) duty, but did not accept that the existence of a view in which one could see both the church and the turbine was in itself enough to engage that duty. It was necessary to have shown that the part of the view containing the turbine was regarded as the setting of the listed building. There were no significant visual effects on the church and its setting was not affected. Furthermore the decision would have been the same with or without the asserted error. (2)
Mr Williams appealed. The issues on appeal were firstly, whether the County Council had failed to comply with the requirement under the DMP Order 2012 to consult the Welsh Ministers on applications for planning permission for development likely to affect the site of a scheduled monument, because that requirement applied to development likely to affect the setting of, or otherwise have a visual impact on the site of, a scheduled monument. The second issue was whether the County Council erred in failing to perform the section 66(1) duty which was to have had special regard to the desirability of preserving the setting of a listed building. And if it did, whether it was highly likely that the outcome would not otherwise have been substantially different.
Mr Williams' main submission was that the effect of development on 'the setting' of a scheduled monument was relevant to a planning decision. The provisions of the DMP Order 2012 for consultation on development likely to affect 'the site' of a scheduled monument ought to have been interpreted in that light. In addition the reference to the 'site of a scheduled monument' in paragraph (k) in the table in Schedule 4 was, in effect, a reference to the monument itself. Development likely to affect the setting of the monument, and hence the monument itself, would have qualified as development likely to have affected the 'site of a scheduled monument'. It was therefore a requirement under Article 14 that the Welsh Ministers be consulted on proposals for development likely to affect the monument's setting.
Concerning the County Council's duty under the Listed Buildings Act, Mr Williams submitted that the PDAS accompanying the planning application acknowledged that the proposed development could have some effect on the setting of the listed church. The County Council should therefore have considered that effect and whether or not it was harmful.
The County Council and Mr Bagley submitted that the Judge's construction of the relevant provisions of the DMP Order 2012 was correct, being a straightforward application of the principles of statutory interpretation to the words of paragraph (k) in Schedule 4 which was consistent with their statutory context. It was also submitted that the County Council had not failed to perform its section 66(1) duty because the zone of theoretical visibility diagram and wireline images produced to the County Council showed the wind turbine was not visible from the listed church. It was submitted that if the court did find an error of law in relation to the section 66(1) duty, a remedy should be withheld. It was argued that, in the light of all the views of experts as well as material that had become available since the planning approval had been given, the County Council's decision on Mr Bagley's application would highly likely have been the same if the proposal was considered afresh. Furthermore, having already erected the turbine, Mr Bagley would be substantially prejudiced if the planning decision was quashed.
Held: appeal allowed.
Per Lindblom LJ:
The Judge's construction of the relevant provisions of the DMP Order 2012 was correct. The words "likely to affect the site of a scheduled monument" contained in paragraph (k) of Schedule 4 of the DMP Order 2012 did not naturally mean development "likely to affect the site or the setting of a scheduled monument". The 'site' of a scheduled monument and its 'setting' were not the same thing. The word 'site' described the area of land on which the monument was physically located: the physical entity comprised in the monument and the ground on which it stood. It did not equate to the 'setting' of the monument, which encompassed the surroundings within which the monument was experienced by the eye. And development 'likely to affect the site' of a monument did not normally include development likely to affect its setting--in the sense of having some visible impact upon the monument's surroundings but without any physical effect on the monument itself or the area of ground on which it stood.
There was no justification for reading into paragraph (k) an additional phrase 'or setting' so that it stated: "Development likely to affect the site or setting of a scheduled monument". If the intention had been to require the Welsh Ministers to be consulted on development likely to affect the setting of a scheduled monument, this could have been done in express terms, which it was not.
The statutory scheme was entirely coherent. The concept of a 'scheduled monument' in paragraph (k) was the same as in section 1(11) of the 1979 Act. And the provisions for consultation in Article 14 and Schedule 4 were aligned with the substantive provisions for conservation in the 1979 Act. This remained so after the amendments which removed paragraph (k) in Schedule 4 and replaced it with the new paragraph (1). The concept of 'the site of a monument' in the statutory scheme as a relatively small area of land around the monument, essential for its physical support and preservation, put beyond doubt the meaning of the concept of 'the site of a scheduled monument' in paragraph (k). Neither expression meant the setting of the scheduled monument, as opposed to its site.
The section 66(1) duty ought to have been performed and was not. The County Council had failed to discharge its section 66(1) duty, and had failed to have regard to relevant development plan and national planning policy as material considerations.
Whether the duty was engaged depended on the facts and circumstances of the case. If a proposed development was to affect the setting of a listed building there must have been a distinct visual relationship of some kind between the two which was more than remote or ephemeral, and which bore on one's experience of the listed building in its surrounding landscape or townscape. Physical proximity was not always essential. Mutual visibility and co-visibility were relevant. But this did not mean that the mere possibility of seeing both listed building and development at the same time established that the development would affect the setting of the listed building. A local planning authority was not relieved of its section 66(1) duty merely because the possible effect of the proposed development on the setting of a listed building had not been identified as an issue in responses to consultation, or in representations made by third parties, or even by the developer himself.
In this case there were no objections on the grounds of likely harm to the setting of the grade II* listed church by the erection of a wind turbine. However, the possible slight effect of the development on the setting of the listed church had been recognised by Mr Bagley in the PDAS, therefore the section 66(1) duty was clearly engaged. Given the potential significance of an effect, even a less than substantial effect the first question for the County Council under section 66(1) should have been whether there was an effect on the setting of the listed building, and, if so, what that effect was. Without that exercise having been undertaken to show that the section 66 (1) duty had been performed, the only conclusion was that the County Council's decision-making was deficient and therefore unlawful.
The Court held that the interests of a lawfully taken decision should prevail. The planning permission was therefore quashed in order for the County Council to take the decision again properly directing itself on the section 66(1) duty, notwithstanding that the outcome could be the same.
Before: Lindblom and Irwin L.JJ.
Mr Richard Harwood Q.C. (instructed by Harrison Grant Solicitors) for the Appellant
Ms Clare Parry (instructed by Powys County Council Legal Services) for the Respondent
Mr James Corbet Burcher (instructed by Margraves Solicitors) for the Interested Party
Katherine Mason *
* Independent Legal Analyst, B.A. (Hons), LL.B., University of Sydney.
(1)  EWCA Civ 427.
(2) See R (on the application of Williams) v Powys County Council & Anor  EWHC 480 (Admin).
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|Publication:||Art Antiquity & Law|
|Date:||Oct 1, 2017|
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