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Mordue v Secretary of State for Communities and Local Government [2015] EWHC 539 (Admin)

DATE: 09 Mar 2015

This was a claim under s.288 of the Town and Country Planning Act 1990 to the decision of an Inspector, on behalf of the Secretary of State, to grant planning permission on appeal for a wind turbine in the countryside. The principal ground of challenge was that the Inspector had failed to give “considerable importance and weight” to the acknowledged (albeit limited) impact that the proposal would have on the setting of certain listed buildings. The decision letter contained a dedicated section dealing with the impact on listed buildings, despite the local planning authority having no heritage reason for refusal, and the section dealing with the planning balance applied the guidance on heritage issues at NPPF paras. 132-134. It also acknowledged that there was a breach of a development plan policy that enshrined the s.66 objective of preservation and enhancement , but held that this was outweighed by the environmental benefits of the wind turbine. 

Giving judgment, John Howell QC (sitting as a Deputy High Court Judge), allowed the claim albeit “with reluctance” (para. 73). He held that the consequence of the Court of Appeal’s judgment in East Northamptonshire v. Secretary of State for Communities and Local Government [2015] 1 W.L.R. 137 (known as the ‘Barnwell Manor’ case) was to put 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, in contrast to the ordinary position in public and planning law where it is for a claimant to establish that the decision was legally flawed. The Deputy Judge considered that he was bound by the Court of Appeal on this issue, which was decisive in the present case, but expressed the view that for a number of reasons the Court of Appeal’s approach was highly questionable in the light of previous Court of Appeal and House of Lords case-law which was not grappled with in the Barnwell Manor case. 

Charles Banner appeared for the Second Defendant, the beneficiary of the planning permission (who was the only party resisting the claim, the Secretary of State having consented to judgment), instructed by Wilkin Chapman LLP. Permission to appeal is being sought.