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Discharge of s.66 Listed Buildings Act following Mordue

DATE: 27 May 2016

Sun & Soil Renewable 20 Ltd ('the IP') sought planning permission to build a 5MW solar farm. A collection of Victorian Gothic Revival buildings, listed Grade II, were situated 800 metres from the application site. The Planning, Design & Access Statement concluded that the effect of the proposed development on their setting would be 'minimal'. The Heritage Statement ('the HS') assessed that effect to be 'minor'. The officer's report did not itself refer to s.66 or key paragraphs of NPPF and misreported the HS assessment. The claimant's challenge to the decision to grant pp, on heritage grounds, was the subject of an expedited rolled-up hearing.

Coulson J concluded, in respect of the point at the heart of the claim (failure by the council to consider their duty under s.66) that: 'In my view, Criticism 3 really comes down to an assertion that, because the OR did not refer in terms to s.66, the court should conclude that the necessary balancing exercise was either not done or, at the very least, may very well not have been done. In the particular circumstances of this case, I reject that submission.  I consider that all the documents, but the OR in particular, make clear that the necessary balancing exercise was done, but because the minimal/minor impact on the setting was significantly outweighed by the benefits, it was not regarded as being something which reasonably required any further elucidation'

The HS set out the view that a minor impact on heritage assets was irrelevant to the planning decision and did not engage the NPPF (Criticism 2: Proceeding on the basis that 'minor' heritage impact did not engage s.66). The Defendant and IP accepted, however, that this was wrong in law. The court concluded that: 'whilst I agree there was an error in the HS, I do not consider that that error infected the decision-making process' [30].

Boden v East Staffordshire BC et al [2016] EWHC 1151 (Admin).

Simon Pickles, instructed by Trowers & Hamlins, appeared for the IP.