Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires a decision maker to consider whether a development will affect a listed building or its setting when assessing an application for planning.
The national planning policy framework (NPPF) states: “Where a development proposal would lead to less than substantial harm to the significance of a heritage asset, this harm should be weighed against the public benefits of the proposal.”
In Mordue v Secretary of state for communities and local government [2015], the claimant argued that the inspector had failed to apply the duty imposed by s.66 by neglecting to give “considerable importance and weight” to the acknowledged impact of a wind turbine on the setting of listed buildings.
The court allowed the claimant’s application. The inspector had referred to the impact on listed buildings but, applying the NPPF guidance, concluded that heritage issues were outweighed by the environmental benefits. However, there was no indication of what weight the inspector had given in each case or cumulatively.
The judge felt bound to follow the judgment in East Northamptonshire v Secretary of state for communities and local government [2014], which placed the onus of proof on the secretary of state to demonstrate that considerable importance and weight had been given to the impact on listed buildings, rather than on the claimant to establish that the decision was legally flawed.
In Mordue, therefore, applying the NPPF alone was not sufficient, because it did not demonstrate that the required weight had in fact been given.
