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Jones v Mordue (Court of Appeal) [2015] EWCA Civ 1243; [2016] 1 P&CR 12; [2016] JPL 476

DATE: 03 Dec 2015

Alistair Mills appeared, unled, in the Court of Appeal for the successful Appellant in an important case concerning s.66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, and the Barnwell Manor judgment.  

John Howell QC, sitting as a Deputy Judge of the High Court, had allowed a challenge to the grant of planning permission for a wind turbine, on the basis that the Inspector’s decision did not demonstrate compliance with s.66(1).  Mr Howell QC considered that he was required, as a result of Barnwell Manor, to reach this conclusion, but found it to be in tension with the decision of the House of Lords in Save Britain’s Heritage

The Court of Appeal held that the decision in Barnwell Manor did not require, without more, a decision-maker to demonstrate compliance with s.66(1).  The onus was upon a claimant to indicate that there is a positive indication that the decision-maker has not given the required considerable importance and weight to the importance of conserving a heritage asset.  Only if there is such a positive indication need a decision-maker make a countervailing positive reference to the relevant duty in the reasons themselves.  

The Court of Appeal also held that, given that the relevant part of the NPPF is to be read together, if an inspector refers to NPPF 134, then unless there is a positive indication to the contrary, the appropriate inference is that he has taken properly into account all of the relevant paragraphs of the NPPF. 

A general observation was made regarding the approach to challenges based on reasons: detailed reference to other decision letters and judgments in relation to them is burdensome for the court, without adding value for the determination of a particular case.  The principles applicable in a reasons challenge are well known, and it is sufficient for judges to be reminded of those principles (and referred to the reasons in the case before him in the light of those principles).