Martin v Secretary of State for Communities and Local Government [2015] EWHC 3435 (Admin)

Case No CO/2094/2015

[2015] EWHC 3435 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

PLANNING COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 27 November 2015

Before

Lord Justice Lindblom

Between

Julia MartinClaimant

Secretary of State for Communities and Local GovernmentDefendant

West Devon Borough CouncilDefendant

Mr and Mrs Andrew HeywardDefendant

Mr Richard Harwood Q.C.(instructed by Richard Buxton) for Claimant

Mr Charles Banner (instructed by the Government Legal Department) for First Defendant

Hearing Hearing date: 13 October 2015

Judgment

[1]In this case an inspector allowing a planning appeal concluded, for the reasons he gave, that the proposed development, a wind turbine, would not harm the settings of “heritage assets” – a scheduled ancient monument and two listed buildings. In refusing planning permission, the local planning authority had said that, “[on] the basis of the information submitted as part of the proposal”, it was “not satisfied” that the development would not result in significant harm of that kind. The inspector did not say in his decision letter whether or why he found the information before him sufficient to enable him to conclude that there would be no such harm. Is his decision therefore unlawful?

[2]By an application under section 288 of the Town and Country Planning Act 1990 the claimant, Mrs Julia Martin, challenges the decision of the inspector, Mr Alwyn Nixon, appointed by the first defendant, the Secretary of State for Communities and Local Government, allowing the appeal of the third defendants, Mr and Mrs Andrew Heyward, against the refusal by the second defendant, West Devon Borough Council, of their application for planning permission for the erection of a wind turbine on their land at Beckwell Farm, near the hamlet of Lifton in south-west Devon. Mrs Martin lives with her three children at Borough Farm, which adjoins Beckwell Farm. For the last eight years she has been running a successful camping business on her land – “Devon Yurt”. She objected to the application for planning permission and opposed the appeal. The appeal was dealt with on the parties’ written representations. The inspector’s decision letter is dated 26 March 2015. Mrs Martin’s application was lodged with the court on 7 May 2015. On 15 June 2015 her application for a protective costs order was refused by Dove J.. In his reasons for refusing that application Dove J. observed that “[it] is implicit in the Inspector’s conclusions that he considered he had adequate and appropriate evidence on which to reach his decision and it would be difficult to contend that reasons were required in relation to that issue”.The inspector’s decision is defended by the Secretary of State. Neither the council nor Mr and Mrs Heyward have taken any active part in the proceedings.

The issues for the court

[3]There are two grounds in Mrs Martin’s application. They raise two closely related questions. First, did the inspector fail to provide proper and adequate reasons on a principal important controversial issue in the appeal: whether he had sufficient information on the likely effects of the proposed development upon the settings and significance of designated “heritage assets” (ground 1)? Secondly, did he fail to take into account government policy in paragraphs 128 and 129 of the National Planning Policy Framework (“the NPPF”) and relevant guidance published by English Heritage (now Historic England), in considering whether he had enough information about heritage assets and the likely effects of the development upon them (ground 2)?

The statutory framework

[4]Part I of the Ancient Monuments and Archaeological Areas Act 1979 contains various provisions relating to “Ancient Monuments”. Section 1(1) requires the Secretary of State to “compile and maintain for the purposes of this Act … a schedule of monuments …”. Under section 1(3), subject to a qualification relating to dwelling-houses, the Secretary of State may include in the Schedule “any monument which appears to him to be of national importance”.

[5]Section 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”) provides for the Secretary of State to compile a list of “buildings of special architectural or historic interest”. Section 66(1) contains the “[general] duty as respects listed buildings in exercise of planning functions”:

“In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have a special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which is possesses.”

[6]In Barnwell Manor Wind Energy Ltd. v East Northamptonshire District Council

[2014] EWCA Civ 137

the Court of Appeal endorsed and applied the jurisprudence in previous decisions of the House of Lords and the Court of Appeal bearing on a decision-maker’s duties under sections 66 and 72 of the Listed Buildings Act – in particular, the decision of the House of Lords in South Lakeland District Council v Secretary of State for the Environment [1992] 2 A.C. 141 and that of the Court of Appeal in The Bath Society v Secretary of State for the Environment [1991] 1 W.L.R. 1303. Sullivan L.J. confirmed (in paragraph 22 of his judgment in that case, with which Maurice Kay and Rafferty L.JJ. agreed) that in his view Glidewell L.J.’s judgment in the Bath Society case “is authority for the proposition that a finding of harm to the setting of a listed building is a consideration to which the decision-maker must give “considerable importance and weight””. He went on to say (at paragraph 28) that the general duty in section 66(1) “applies with particular force if harm would be caused to the setting of a Grade I listed building, a designated heritage asset of the highest significance …”.

Relevant policy and guidance

[7]Paragraphs 126 to 141 of the NPPF set out government policy for “Conserving and enhancing the historic environment”. Paragraphs 128 and 129 state:

“128. In determining applications, local planning authorities should require an applicant to describe the significance of any heritage assets affected, including any contribution made by their setting. The level of detail should be proportionate to the assets’ importance and no more than is sufficient to understand the potential impact of the proposal on their significance. As a minimum the relevant historic environment record should have been consulted and the heritage assets assessed using appropriate expertise where necessary. Where a site on which development is proposed includes or has the potential to include heritage assets with archaeological interest, local planning authorities should require developers to submit an appropriate desk-based assessment and, where necessary, a field evaluation. 129. Local planning authorities should identify and assess the particular significance of any heritage asset that may be affected by a proposal (including by development affecting the setting of a heritage asset) taking account of the available evidence and any necessary expertise. They should take this assessment into account when considering the impact of a proposal on a heritage asset, to avoid or minimise conflict between the heritage asset’s conservation and any aspect of the proposal.”

Paragraph 132 says that when the impact of a proposed development on the significance of a designated heritage asset is being considered, “great weight should be given to the asset’s conservation …”, and that “[the] more important the asset, the greater the weight should be”. It points out that “[significance] can be harmed or lost through alteration or destruction of the heritage asset or development within its setting”. Substantial harm to, or loss of, grade II listed buildings should be “exceptional”. And such harm to, or loss of, designated heritage assets “of the highest significance”, including scheduled monuments and grade I listed buildings, should be “wholly exceptional”. Paragraph 134 says that “[where] a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal …”. In the glossary of terms in Annex 2 to the NPPF the “Setting of a heritage asset” is defined as “[the] surroundings in which a heritage asset is experienced …”. The definition of “Significance (for heritage policy)” is “[the] value of a heritage asset to this and future generations because of its heritage interest”. The heritage interest “may be archaeological, architectural, artistic or historic”. It is emphasized that “[significance] derives not only from a heritage asset’s physical presence, but also from its setting”.

[8]The Planning Practice Guidance issued by the Government in March 2014 emphasizesin paragraph 009, under the heading “Why is ‘significance’ important in decision-taking?”, that “[being] able to properly assess the nature, extent and importance of the significance of a heritage asset, and the contribution of its setting, is very important to understanding the potential impact and acceptability of development proposals …”. In paragraph 013, under the heading “What is the setting of a heritage asset and how should it be taken into account?”, it saysthat “[a] thorough assessment of the impact on setting needs to take into account, and be proportionate to, the significance of the heritage asset under consideration and the degree to which proposed changes enhance or detract from that significance and the ability to appreciate it”. It goes on to say that “[the] contribution that setting makes to the significance of the heritage asset does not depend on there being public rights or an ability to access or experience that setting”, and that “[this] will vary over time and according to circumstance”.

[9]When it was published in March 2012, the NPPF superseded PPS5, “Planning for the Historic Environment”, issued in March 2010. However, the “PPS5 Planning for the Historic Environment: Historic Environment Planning Practice Guide” issued jointly by the Government and English Heritage, also in March 2010 remained extant until 25 March 2015, the day before the inspector’s decision letter in this case was issued. In a section headed “Assessing the significance of a heritage asset”, paragraph 58 said this:

“… [An] applicant will need to undertake an assessment of significance to an extent necessary to understand the potential impact (positive or negative) of the proposal and to a level of thoroughness proportionate to the relative importance of the asset whose fabric or setting is affected. Given the obvious burden of the process, local planning authorities will need to be careful to only ask the applicant for what is genuinely needed to satisfy the policy requirement. Although there is no limit on the sources of information that might be consulted or the exercises that might be carried out to fulfil that requirement, the most common steps an applicant might take are as follows. The first three steps will be undertaken in almost every case.”

Eight steps were then set out. I need mention only the first three. The first was to check relevant formal records, including “statutory … lists, … the NMR, and other relevant sources of information that would provide an understanding of the history of the place and the value the asset holds for society”; the second, to “[examine] the asset and its setting”; the third, to “[consider] whether the nature of the affected significance requires an expert assessment to gain the necessary level of understanding”. Under the heading “Assessing the implications of change affecting setting” paragraph 119 of the practice guide said that “[understanding] the significance of a heritage asset will enable the contribution made by its setting to be understood”; that “[this] will be the starting point for any proper evaluation of the implications of development affecting setting”; and that “[the] effect on the significance of an asset can then be considered and weighed-up …”.

[10]English Heritage’s guidance document “The Setting of Heritage Assets”, revised in June 2012, was also extant until 25 March 2015. It recommended, in section 4.2, a “broad approach” to assessing the implications of development proposals for heritage assets under the policy in PPS5, and suggested five steps “that apply equally to complex or more straightforward cases”. The first step was to “identify which heritage assets and their settings are affected”; the second, to “assess whether, how and to what degree these settings make a contribution to the significance of the heritage asset(s)”; the third, to “assess the effects of the proposed development, whether beneficial or harmful, on that significance”; the fourth, to “explore the way maximising [sic] enhancement and avoiding or minimising harm”; and the fifth, to “make and document the decision and monitor outcomes”. The guidance said that “normally this analysis should focus on a limited number of key attributes of the asset, its setting and the proposed development, in order to avoid undue complexity”. It acknowledged that “[the] true effect of a development on setting may be difficult to establish from plans, drawings and visualisations, although the latter are becoming increasingly sophisticated”.

[11]On 25 March 2015 English Heritage published a series of advice notes under the title “Historic Environment Good Practice Advice in Planning”. These replaced the PPS5 practice guide and the English Heritage guidance on the setting of heritage assets. There was no material change in the guidance bearing on the issues in these proceedings. Paragraph 12 of Note 2, “Managing Significance in Decision-Taking in the Historic Environment”, acknowledges that “there are many … methods for assessing significance and impact upon it”. Paragraph 12 of Note 3, “The Setting of Heritage Assets”, recommends a “broad approach to assessment, undertaken as a series of steps that apply proportionately to complex or more straightforward cases”.

The application for planning permission

[12]Mr and Mrs Heyward’s application for planning permission was submitted to the council on 13 November 2013. The proposed development was described as being the erection of a single wind turbine with a hub height of 24 metres and a tip height of 35 metres, and ancillary development.

[13]In section 4 of the design and access statement submitted with the application, an analysis of “Landscape Visual Impact” was set out. It was explained in paragraph 4.11 that an assessment of the visual impact of the proposed turbine had been undertaken “utilising photomontages as guiding tools”, based on photographs “provided by the client”. The development’s likely “landscape and visual impact”, as shown in six photomontages in Appendix B, was described in a table. The first three photomontages are relevant to the issues in these proceedings. On each image there is a note, explaining that the camera used for the photographs had a focal length of 50 millimetres, and that “When viewed at a comfortable arm’s length (approx. 500mm) [the] image is representative of the maximum field of view of clear vision”.

[14]Photomontage 1 showed a view from the grade II listed Downhouse, some 580 metres to the south-west of the site of the proposed wind turbine. The assessment said that “[this] viewpoint is taken from the Listed Building”; that the view showed the “undulating nature of the area, agricultural land and vegetation in the area”; that “[the] montage demonstrates that the turbine would be visible from this location”, but that “due to the scale of turbine proposed and the distance to the listed building, the impact on the setting would be acceptable”; and that “[the] vegetation also ensures that the turbine would not be an isolated feature”. The “Receptor Sensitivity”, the “Magnitude of Effect” and the “Significance of Effect” were said to be, respectively, “High”, “Medium” and “Moderate”.

[15]According to the table, photomontage 2 showed a view from a lane close to the scheduled ancient monument, Castle Park Camp,which is a late Bronze Age or early Iron Age ramparted enclosure about 1 kilometre to the south-east of the site of the proposed wind turbine. However, the caption on the images themselves described the relevant location as “Viewpoint 2: Listed Building”, and the map in Appendix B showed the location as being some distance to the north-east of the site of the proposed turbine – seemingly Chillaton House, a listed building to the west of the village of Chillaton (as indicated in Image 10 in paragraph 4.37, a map showing the location of “Heritage Assets”). The assessment in the table said that “[this] view is taken from the public highway adjacent to the SAM”; that “[the] trees bounding the highway severely restrict any landscape views”; that “[the] photomontage demonstrates the turbine would not be visible from this location”; and that “[the] wireframe also indicates that in the absence of the existing mature trees the turbine would at this distance not pose a significant impact upon the landscape in views from this location”. The “Receptor Sensitivity”, the “Magnitude of Effect” and the “Significance of Effect” were said to be, respectively, “High”, “Negligible” and “Negligible”.

[16]Photomontage 3 showed a view from The Round House, a grade II listed building, about 1.7 kilometres to the east of the site of the proposed turbine. The assessment here said that was “[this] viewpoint demonstrates the agricultural nature of the area and demonstrates that whilst there are areas of coppice that the openness of the landscape remains the overriding feature”; that “[the] turbine would be visible from this location however it would be viewed in relation to mature vegetation which ensures that it would not be an isolated feature”; and that “[the] turbine is also of suitable distance away not to have significant effects on the setting of the listed building”. The “Receptor Sensitivity”, the “Magnitude of Effect” and the “Significance of Effect” were said to be, respectively, “High”, “Low” and “Moderate”. The text (in paragraph 4.12) went on to say that “whilst there is some harm within the slight and moderate adverse categories, this does not necessarily equate to unacceptable harm and this change in vista must be balanced against policy expectations and guidance encouraging renewable energy”.

[17]Under the heading “Heritage Assets” the design and access statement said this (in paragraph 4.38):

“The closest listed buildings to the site are Downhouse and its barns, located 650m to the south west. All of these buildings are listed as Grade II and their setting is constrained to the more immediate area. The buildings are also located over 580m away, being separated by a number of agricultural fields, with substantial vegetation in between. Given the distance, intervening landscape features, the reasons for their listing and the constrained setting, it is considered that this small scale turbine would not have a significant impact on the setting of this heritage asset. The next nearest Listed Building is The Round House to the south of Chillaton. The Round House is early 19th Century and was originally built as a toll house. Given the separation distance to the turbine of 1.6km and limited scale of the turbine, it is not considered that there would be a significant impact upon the setting of this listed building. In addition to the noted listed buildings there is a Scheduled Ancient Monument to the south east of the turbine. This monument includes a hilltop enclosure situated on a very prominent hill forming the watershed between the valleys of tributaries to the River Lyd and River Tamar. The monument survives as an oval enclosure defined to the north, west and partially to the east by a ditch and bank and to the south and partly to the east by a distinct lynchet. Again given the significant separation distance of over a kilometre, intervening vegetation, scale of turbine and topography it is not considered that there would be any distinguishable impact upon the setting of this heritage asset.”

English Heritage’s objection

[18]English Heritage objected to the planning application in a letter dated 15 January 2014. In the “Summary” of their concerns they said that “contrary to national planning policy, the application … has not demonstrated that the proposal can be achieved without harmful impacts on heritage assets, or that any harm would be justified or outweighed by any benefits in the public interest”. They therefore recommended that the council “either refuses the application, or defers determination and requests the applicant to provide the required additional information”, but that if the application was determined “as it currently stands” it should be refused.

[19]Under the heading “Significance of affected heritage assets” the letter emphasized that “[as] a statutorily designated heritage asset of highest significance, Castle Park Camp Scheduled Monument has high sensitivity to effects of new development on its setting”. It expanded on the significance of the camp as a heritage asset:

“… Castle Park Camp (designated as ‘Hilltop enclosure known as Castle Park Camp, 720m north west of Pomphlett’ …) lies approximately 1000 metres south of the application site. The Camp is a rare example of a Late Bronze Age or Early Iron Age single-ramparted enclosure, one of only around 25 to 30 examples known nationally, usually sited on hilltops and probably originally used as stock enclosures or for the storage or redistribution of agricultural produce. The majority of these sites are in the chalk downlands of Wessex and Sussex, and in the Cotswolds; this example is a rare outlier in Devon. In view of the rarity of these monuments and their importance in understanding Bronze Age and Iron Age society, all examples with a sufficient degree of preservation are regarded as of national importance and are designated as scheduled monuments. The relative rarity of this kind of fort, and the quality of Castle Park Camp’s preservation, its potential archaeological evidence and its still legible landscape context and setting, give the monument high heritage significance. With regard to landscape setting, the fort was built on a very prominent hill overlooking the valleys of the rivers Lyd and Tamar. The Camp is notable for its prominent position and clear relationship to the surrounding topography, and for its surviving earthworks bank and ditch, which survive best on the west and north sides where there are entrance gaps; the north side with its entrance gap faces towards the application site. Also relevant is the relationship of the Camp to the later surrounding settlement pattern and its heritage assets, as the fort continued to form a significant feature in the landscape during the centuries when the present pattern of villages, farms and agricultural landscape was developed. These factors increase the heritage significance of the monument, and also (importantly in relation to the present application) increase the contribution and significance of its landscape setting, particularly its relationship to the areas of the north (the direction of the nearby application site). It is clear therefore that the topographical location and landscape setting of Castle Park Camp scheduled monument, and its physical and visual relationship to its surroundings, is important to its heritage significance and to an understanding and appreciation of the monument and of its relationship with the landscape and with other historic features in the area. There is potential for the proposed development to adversely affect primary views … to and from [the] monument, and thus harm its setting and significance.”

[20]In a section headed “The application and assessment of heritage impact of the development” the letter continued:

“With an application for development of this nature we would normally expect to see proper assessment of potential impacts on setting, with sufficient information and illustration included in the application to enable an assessment of impact on the setting and significance of affected heritage asset(s). This should be based on a reliable assessment of the visibility of the turbine (normally indicated by maps showing Zones of Theoretical Visibility) and illustration and assessment of views of the development from the heritage asset, and views from ‘third points’ taking in both the heritage asset and the proposed development. Assessment of setting can include, but should not be limited to, places accessible to the public, as assessment of impact on setting should take in the whole of an asset’s setting irrespective of current public accessibility. … In this intimate rural landscape, wind turbines will form a visually intrusive built element very different in character to the present agricultural landscape, and as such will potentially have a visually distracting effect in the setting of any designated heritage assets in view. The impact would be exacerbated by the fact that the proposed turbine, contrary to claims in the Design and Access Statement …, would be an isolated hillside feature, visually separate from the farmstead. … The application fails to properly assess the significance of Castle Park Camp and the contribution made by its setting. Despite this omission the D&AS nevertheless claims (para 4.38) that the development would have ‘no distinguishable impact’ upon the setting of the Camp. However, the viewpoints and illustrations provided in the present application do not cover heritage assets, and no evidence is provided to support its claims about lack of impact on Castle Park Camp or other heritage assets.”

[21]Describing English Heritage’s “position”, the letter went on to say that the proposal failed to satisfy the policy in paragraph 128 of the NPPF:

“The degree of harm to heritage assets that would result from the development is not possible to determine in detail because of the lack of information and assessment in the application. However, on the basis of the material provided, the proposed development could potentially have a harmful impact on the setting and heritage significance of Castle Park Camp Scheduled Monument, and may also have a harmful impact on other designated and undesignated heritage assets in the area. No proper evidence has been provided to demonstrate otherwise.”

Therefore, the council would be “justified in refusing the application on the grounds that the proposal fails to satisfy national policy and guidance, or in deferring determination and requesting additional information on the impact of the proposal on the setting and significance of affected designated heritage assets”.

[22]Attached to English Heritage’s letter was their South West Office’s guidance note, “Recommended information for renewable energy generation development proposals”, published in May 2013. This document advises that an assessment of the likely impacts on heritage assets should “demonstrate that there are no unacceptably harmful impacts on setting of heritage assets within view”. Photomontages “should include views with heritage assets and the proposed development accurately scaled in the same view”. The use of a 75 millimetre lens is recommended. The assessment is expected to include views from the historic assets showing the proposed development, and “from other points which incorporate both the development site and the historic assets”.

[23]On 17 January 2014, in an e-mail to Mr and Mrs Heyward’s planning consultant, Mr Kevin Robinson, English Heritage’s Ancient Monuments Inspector, Mr Keith Miller, restated English Heritage’s position. He said that “[statements] in an application about level of impact (in this case visual impact on settings of heritage assets) require supporting evidence (usually a map showing ZTV, with specific views illustrated by photomontage and/or wireframe views showing the turbine in relation to the landscape and heritage assets”. He added that “whilst the potential impact on the SAM is of special concern to [English Heritage] … , there may also be harmful impacts on other designated and undesignated heritage assets”. He concluded by saying that “[at present] there is insufficient information and evidence in the application to be able to determine the extent or level of harm on heritage assets, and claims in the application are unsubstantiated by evidence”, and that “[this] lack of sufficient information needs to be remedied in order … for the application to meet the criteria of national policy, and to enable an informed decision to be made on the proposal”.

Dartmoor National Park Authority’s objection

[24]In a letter to the council dated 22 January 2014 Dartmoor National Park Authority objected to the proposal, saying that the development would “harm the wider landscape and setting of Dartmoor”. In the context of “[the] conservation and enhancement of the cultural heritage of the National Park” it said it was clear that “the impact of the turbine on the setting of the Grade I Listed Brent Tor church (St Michael de Rupe Church) will be substantially significant”. The church was “an important heritage asset and the most prominent landmark on the western edge of the National Park”. The wind turbine would be “very dominant when viewed from the Church”. The “significance of a heritage asset can be harmed or lost by development within its setting”, and “in this case the impact on the setting of the Grade I church will be substantial”.

Mrs Martin’s objection

[25]Mrs Martin objected to the proposed development in a letter to the council dated 8 December 2013. In that letter she expressed her concerns about the possible visual impact of the wind turbine and the noise it might generate. She said it “would have a large impact on [her] luxury camping business both visually against such a beautiful landscape … and by the sound disturbing the quiet countryside particularly at night when … guests will be attempting to sleep under canvas and hence will have little to shield them from the sound of the swinging blades of the turbine …”.

The council’s decision

[26]The council’s Planning and Licensing Committee considered the proposal at its meeting on 4 March 2014. The planning officer’s report to committee summarized the responses to consultation, including the objections of English Heritage and Dartmoor National Park Authority.Dealing with “[the] impact of the proposed development on the character and appearance of the landscape”, the officer advised the committee that “[the] proposed turbine will be visible from Brentor church, but is considered to be sufficiently small and distant from it not to have an adverse impact upon views from it”. As for “[the] impact on the significance of designated heritage assets”, he referred to the “extended comments” of English Heritage, acknowledged that “the heritage significance of the hilltop enclosure [at Castle Park Camp] is not questioned”, reminded the members that “there is no public access to the monument and it is separated from the proposed turbine by a network of rural roads enclosed by high Devon banks”, and concluded that “[the] impact would be limited”. The listed building nearest to the site, Down House farm and its barns, was “viewed against the backdrop of Ramsdown Plantation and mature trees”. The officer concluded that the development would not “impact upon the settings of these listed buildings”. He recommended that planning permission be granted.

[27]Rejecting that recommendation, the committee resolved to refuse planning permission. The council’s decision notice, dated 4 March 2014, stated two reasons for refusal. The first said that the proposed development would harm “the rural landscape of the Lew and Lyd Valleys and Dartmoor hinterland”. The second was this:

“On the basis of the information submitted as part of the proposal, the LPA are not satisfied that the proposed wind turbine would not result in significant harm to the setting of nearby heritage assets, namely; • Downhouse, a Grade II listed building • Castle Park Camp, a Scheduled Ancient Monument • Brentor Church, a Grade I listed building These concerns are considered to outweigh the economic benefits of the development. The proposal is as such contrary to policies SP1, SP3, SP17, SP18 of the West Devon Borough Core Strategy 2011 and policy BE3 of the West Devon Borough Local Plan Review 2011 and provisions of the NPPF.”

The parties’ written representations

[28]Mr and Mrs Heyward appealed against the council’s decision on 23 April 2014. In the written representations submitted for them five additional photomontages were provided – numbered 7, 8, 9, 10 and 11. These photomontages had been prepared in the same way as the previous ones, as the notes on them explained.

[29]The additional photomontage relevant to the setting of Downhouseas a listed building, was photomontage 11. The relevant passage of the written representations, in paragraph 6.9, said:

“… The additional photomontage pack includes a viewpoint (Photomontage 11) taken from the nearest [publicly] accessible land to the house, with a view toward the turbine location. The photomontage and the wireframe indicate that the turbine would not be visible from the property. With the extent of vegetative cover and the separation distance between the two it is considered that there would be limited visual interaction between them and that the listed building would continue to be appreciated in its setting as it currently exists.”

The new photomontage relevant to the setting of Castle Park Camp was photomontage 7. Paragraph 6.10 of the written representations referred to the distance between the camp and the site of the proposed wind turbine, and said: “… At this separation distance along with the intervening vegetation and landform it is not considered that the proposed turbine would be particularly prominent in views. Photomontage 7 … shows the view from the public highway adjacent to the site looking toward the turbine. The turbine is partially screened by the boundary vegetation and is not readily visible in the view. The slender nature of the turbine and the limited height proposed serve to ensure that where visible it would not appear unduly dominant or result in any significant impacts in detracting from the open aspect of the views from and of the scheduled ancient monument. It is considered that the photomontage image supports the views of the Planning Officer in his committee report …”.

[30]The photomontages relevant to the setting of the church at Brentor were photomontages 8 (a view from the road beside the church), 9 (a view from outside the church, about five kilometres from the site of the proposed turbine) and 10 (a view from the West Devon Way public footpath near Black Down). The relevant passage in the written representations (in paragraph 6.11) quoted the conclusion of the planning officer in his report, and said:

“… The photomontage (8) taken from the public highway adjacent to the church shows that the high banks and dense vegetation preclude any views taking in the turbine. From the grounds of the church, situated on higher ground, [as is shown in photomontage 9,] long distance views are available. However at this distance to the turbine and due to the limited size, scale and massing of the turbine, it would not be readily appreciable and would not materially alter the views out from the church grounds.”

The conclusion (in paragraph 6.12) was that this new material supported the planning officer’s view that the proposed development would “not have any notable impact” on the settings of any of those three heritage assets.

[31]In its written representations the council pointed out – in section 5.0, “The Council’s Case” – that Mr and Mrs Heyward had been told of English Heritage’s request for “further information to assess the impact on heritage assets”, but that their agent had asked it to determine the application on the basis of the information already provided. It stressed that “the ability of the public to appreciate a heritage asset is one, but by no means the only, factor to be considered when assessing the contribution that setting makes to the significance of a heritage asset”. In its opinion “the visual impact assessments [were] not complete, considering merely the views outward over the development site”. The wind turbine would be “very visible from [the grade I listed] Brent Tor Church …”. Commenting on Mr and Mrs Heyward’s grounds of appeal – in section 6.0, “Observations Upon Grounds of Appeal” – it said that they had “failed to assess the significance of the Heritage Assets or the impacts of the development on the significance of such assets”, and, in particular, had “failed to assess the significance of the setting of the Grade I Listed Building within the National Park …”. In section 7.0, “Conclusion(s)”, it said that officer’s approach had been “at odds with case law and the Practice Guide 2012 produced by English Heritage”. Then it said this:

“… The proposal … would have a harmful impact on the scheduled monument of Castle Park Camp, and the significance of the setting [sic] of other aforementioned Heritage Assets. The appeal statement fails to provide sufficient information in relation to potential impacts of the proposed development on the setting and significance of designated heritage assets, and has not demonstrated that the proposal can be achieved without harmful impacts on heritage assets[.]”

[32]English Heritage, though consulted on the appeal, made no further representations at this stage. In his witness statement of 26 June 2015 (in paragraph 5) Mr Miller makes a number of comments on the additional photomontages provided to the inspector on behalf of Mr and Mrs Heyward. These were not before the inspector and, as the parties agree, they can have no bearing on Mrs Martin’s challenge to his decision.

[33]In their written representations, which are undated, Dartmoor National Park Authority referred (in paragraph 8) to the church at Brentor as “an important heritage asset and the most prominent landmark on the western edge of the National Park”. They said that the proposed wind turbine would be “very dominant when viewed from the Church”; that the impact on its setting would be “substantial”, and that “for this reason permission should be refused”.

[34]In a letter to the Planning Inspectorate dated 28 May 2014 Mrs Martin explained why she was objecting to the proposal. She pointed out that the site of the proposed development was close to Ramsdown, the highest point between Dartmoor and Bodmin Moor, claimed that “a wind turbine sited here will have an adverse effect on a wide area of natural landscape”, and went on to say this:

“Ramsdown has a historic site at Castle Farm, English [Heritage] have already questioned the wind turbine application at Beckwell farm due to the impact it will have upon this ancient site. A few miles to the West is the river Tamar, the Tamar valley being an area of Outstanding Natural Beauty. A few miles to the East is Dartmoor National Park with its protected landscape, with our nearest access point to Dartmoor being Brent Tor with its ancient church sitting on top of Brent Tor. Brent Tor is a prominent local landmark and visited all year round by both local people and visitors to the area enjoying the far reaching views from its summit. The turbine would be very close to and dominate this view from Brentor[.]”

Mrs Martin concluded her representations by saying that her business was “under threat” from the proposed development.

[35]Several other local residents and the Milton Abbot Grouped Parish Council opposed the appeal on grounds including concerns about the likely effects of the development on the landscape and on the settings of heritage assets.

The inspector’s site visit

[36]The inspector made his site visit on 13 January 2015.Mrs Martin’s claim form states, in paragraph 30, that he was accompanied by Mr and Mrs Heyward and an officer of the council, “but not by local residents, who asked on the day to accompany [him] but were refused”, that he went on to Castle Park Camp, but that when he was at Borough Farm Mr Heyward “pointed to the wrong field when trying to identify where the turbine would be erected”, and that “Mrs Martin had to correct him”. This version of events is supported in Mrs Martin’s witness statement of 21 May 2015. She says, in paragraph 15 of that witness statement, that she told the inspector that the field in which the wind turbine was to be erected was not the one he had gestured towards, but “the field above that, right on the horizon” – which he accepted once he had looked at his map.

[37]The inspector has given his own account of what happened on the site visit, in a witness statement dated 28 September 2015. He confirms, in paragraph 3 of his witness statement, that he “visited the proposed site of the turbine, [Mrs Martin’s] property, the Castle Park Camp, the locations of the listed buildings of Brentor Church and Downhouse and various other vantage points in the surrounding area”, and that the objectors were made aware of his intention to do this. He says, in paragraph 4, that it was only when he went to the site of the proposed turbine that local residents were unable to go with him, because Mr and Mrs Heyward would not allow them to come on to the land. He “visited the location of Castle Park Camp, to which there is no public right of access but in respect of which [an] arrangement had been made for [him] to visit, in the company of [Mr and Mrs Heyward] and the Council’s representative”. Nobody else asked to attend that part of the site visit (paragraph 5). As to what happened when he went to Borough Farm, he says this, in paragraph 7:

“Although [Mr and Mrs Heyward] may have had a little difficulty in pin-pointing the exact location of the turbine site as seen from [Mrs Martin’s] property, this did not prevent me establishing the site’s location, seen from this and all other locations I visited, to my satisfaction.”

The decision letter

[38]In his decision letter the inspector identified the “Main Issues” in the appeal, in this way:

“2. The main issues are the effect of the proposal on the character and appearance of the surrounding landscape, including as regards its location in relation to the Dartmoor National Park; its effect on the settings of designated heritage assets; and whether any harm in these respects is outweighed by other material considerations including the renewable energy benefits associated with the development.”

[39]The inspector outlined the “Policy Background” in paragraphs 3 to 6 of his letter. In paragraph 6 he summarized relevant government policy on proposals for renewable energy, and on development affecting heritage assets in paragraphs 132 to 136 of the NPPF.

[40]On “Landscape and visual impacts” he said in paragraph 7 that “[an] assessment of the proposal’s resulting landscape and visual impact has been carried out, based on established practice guidelines and including photo-visualisations and wireframes from a number of representative viewpoints”. The extent of this exercise was, he said, “adequate in the light of the comparatively modest height of the turbine …”. He considered the likely effects of the development on views from Brentor:

“13. The photo-visualisations and wireframes submitted in connection with the proposal include material for viewpoints at Brentor Church (5km away from the site and at the Park’s closest point) and from an elevated location on the West Devon Way near North Brentor (7.2km away). From my observations these viewpoints are representative of the area of maximum visual impact for the National Park and receptors within it. The accuracy and adequacy of this material has not been challenged. It demonstrates that, at the distances involved, the turbine would only have a marginal visual effect on the panoramic vistas gained in vistas gained in views out from elevated locations within the western fringes of the Park. Any potential undue prominence could be mitigated by sensible control of the colour and reflectivity of the turbine. …”

. The inspector concluded in paragraph 14 that “the turbine would not have a harmful impact on the setting of the National Park, and so would not harm its special qualities or the purposes of its designation, including its understanding and enjoyment by the public”. He addressed Mrs Martin’s objection specifically:

“17. The occupier of Borough Farm also runs a holiday “glamping” business from the property. Yurt accommodation is provided for this purpose in the small paddocks near the buildings. I recognise that those staying in the accommodation will value the attractive rural setting. However, whilst the turbine would be visible from these areas, it would be positioned around 750m away and located peripherally in relation to the principal views obtained towards Dartmoor and Brentor. Mature trees would also help to screen the turbine’s presence. I do not consider that the turbine would be likely to dissuade visitors from staying at this location.”

The inspector’s conclusions on “Landscape and visual effects”, in paragraph 19, were that the development “would not give rise to unacceptable harm to the character or appearance of the area …”, and “would not cause material harm to the setting of Dartmoor National Park or adversely affect the Tamar Valley AONB”.

[41]In the next section of the decision letter the inspector assessed the “Effect on heritage assets”. He began by identifying the three designated heritage assets to which the council had referred in its decision notice:

“20. In relation to this reason for refusal the Council refers to effects on the settings of Castle Park Camp, a scheduled ancient monument (SAM); Brentor Church, a Grade I listed building; and Downhouse, a Grade II listed building. There is no issue of direct change or loss in relation to any of these heritage assets or their features of particular interest.”

[42]The inspector considered Castle Park Camp, its significance as a heritage asset, its setting, and the likely effects of the development upon its significance and setting in paragraphs 21 and 22:

“21. Castle Park Camp is located approximately 1km to the south of the site. The Camp is an example of a Late Bronze Age or Early Iron Age single-ramparted enclosure, one of only 25 or 30 examples known nationally and a rare outlier in Devon. These sites are usually located on hilltops and were probably used originally as stock enclosures or for the storage or redistribution of agricultural produce. English Heritage has commented that the relative rarity of this kind of fort and the quality of Castle Park Camp’s preservation, its potential archaeological evidence and its still-legible landscape context and setting give the monument high heritage significance. 22. The context of the SAM comprising its hilltop position and relationship to the valleys associated with the Lyd and Tamar rivers is important to understanding and appreciating its form and function. Also relevant is the relationship of the camp to the later surrounding settlement pattern and its heritage assets, as the fort continued to form a significant feature in the landscape during the centuries when the present pattern of villages, farms and agricultural landscape was developed. However, having regard to all of these factors, I do not consider that the proposed turbine would impinge materially on the setting of the SAM. Due to the folds of the land it would not be highly visible from the enclosure itself; only the upper part of the turbine would be seen, and then only over the intervening shoulder of the hill. Its presence would not interfere with its relationship to the valleys running northwards the Lyd or the Tamar to the south. Nor would the turbine interpose or impinge on any significant views towards the Camp, or detract from the appreciation and understanding of its presence in the landscape. I conclude that the setting and significance of this heritage asset would not be harmed by the proposal.”

[43]The inspector then turned to the two listed buildings about which concerns had been expressed. He reminded himself of his statutory duty as decision-maker. He then went to on to consider the grade I listed church at Brentor, its significance, its setting, and the likely effects of the proposed development:

“23. Where development would affect a listed building or its setting, Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 imposes a statutory duty to have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses. As such, considerable importance and weight attaches to this matter. The Grade I listed Church of St Michael de Rupe at Brentor is an important heritage asset and a highly prominent landmark on the western edge of the Dartmoor National Park. It has a striking position on top of a rocky outcrop and commands wide views across the landscape to the west and north, including towards the turbine site. The church’s pre-eminence in the landscape is an important aspect of its religious, social and historical significance through time, and an important element of its setting. Views towards the church and views out from the site are relevant to the heritage asset’s setting and significance. 24. The turbine site lies 5km from the church. No evidence has been presented to the effect that the turbine would impinge on or distract from any significant view of the church from within the surrounding landscape. My own observations in the field confirm that the turbine’s position in the landscape relative to the church and distance from it are such that there would be no harm to the church’s setting in these terms. 25. From the church itself, a primary aspect of its setting is its dominance over the surrounding landscape and the human activity it contains. Although there would be unobstructed views towards the turbine, the submitted photo-visualisation and wireframe representation confirm that at a distance of 5 km the turbine at 35m blade tip would comprise a very small element within the wider scene. Its noticeability would be dependent on light and atmospheric conditions at the time, but also on its detailed colour and finish which can be controlled by condition. To the extent that the turbine would be visible in some conditions, I consider that given its distance and position on a lower shoulder of the broad mass of Ramsdown, and subject to control of colour/finish, it would not compete with the church for pre-eminence in the landscape or distract from the appreciation and understanding of this. 26. From the above I conclude that the proposal would have no material effect on the setting of the Grade I listed Church of St Michael de Rupe, and that the setting and significance of the heritage asset would not be harmed and would thereby be preserved.”

[44]Finally in this section of his letter, the inspector considered Downhouse, again focusing on significance, setting, and the effects of the proposed development:

“27. Downhouse is Grade II listed as an attractive early C19 farmhouse with an unusual floorplan. It is located approximately 650m to the west of the site, at a slightly lower level on the northerly-facing slope of Ramsdown. At my site visit I observed that Downhouse is oriented away from the turbine site. Given its separation from Downhouse in the landscape, the turbine would not impinge on its setting within fields on the northerly slope of Ramsdown, below Ramsdown Plantation. The professional officer assessment on the application was that there would be no impact on the setting of Downhouse. I agree with that assessment. Although reason for refusal 2 states that the local planning authority is not satisfied that the turbine would not result in significant harm to the setting of Downhouse, no evidence has been produced by the Council pointing to any potential effect on its setting. I am satisfied that the setting of Downhouse would be preserved and that there would be no harm to the significance of the designated heritage asset.”

[45]In the light of those conclusions the inspector found in paragraph 28 that the proposal satisfied the requirements of relevant development plan policy.

[46]Having recognized the “Renewable energy benefits” of the proposed development in paragraphs 29 and 30 of his letter, and having found, in paragraphs 31 to 33, that no “Other matters” weighed against its being approved, he proceeded to his “Overall balancing” in paragraphs 34 and 35. His relevant conclusions were these:

“34. … The proposal would not harm the setting of the Castle Park Camp SAM, the setting of Brentor Church or the setting of Downhouse. Whilst I am conscious of the statutory requirement to have particular regard to any harm, substantial or otherwise, that would be caused by a development to the setting of a listed building, my finding in this case is that there would be no harm and that the settings of the designated heritage assets in question would thereby be preserved. In respect of these matters the proposal meets the requirements of development plan policies SP18, BE3 and BE7.”

Having regard to “the balance of considerations” in the appeal, he concluded in paragraph 35 that “the proposal essentially complies with development plan policies SP1, SP3, SP11, and NE10”, and “is also consistent with the development principles set out in the NPPF”.

[47]The inspector therefore allowed the appeal and granted planning permission. He imposed five conditions, one of which, condition 5, controlled “the colour and finish of the turbine”, to ensure – as he explained in paragraph 36 – that “the turbine’s potential visual impact is adequately mitigated in longer range views from Brent Tor and Dartmoor National Park”.

Did the inspector fail to deal lawfully with the issues relating to heritage assets?

[48]The two grounds of Mrs Martin’s challenge largely depend on each other and are best dealt with together (see paragraph 3 above).

[49]The main grievance is in ground 1: that the inspector failed to give proper and adequate reasons for his decision, because he did not grapple with the question of whether he had enough information about heritage assets and the likely effects of the development on their settings and significance. The related complaint in ground 2 is that he failed to take into account relevant policy and guidance.

[50]The approach the court will take to an allegation of inadequate reasons in a decision letter is familiar. The relevant principles were referred to in the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No.2) [2004] 1 W.L.R. 1953 (in paragraphs 24 to 36), and drawn together by him in this way (at paragraph 36):

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need only refer to the main issues in the dispute, not to every material consideration. … Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

[51]It is agreed between Mr Richard Harwood Q.C. for Mrs Martin and Mr Charles Banner for the Secretary of State that in this case the inspector was not under any statutory duty to give reasons. Unlike the rules governing appeals dealt with at public inquiries and at hearings, the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009 (S.I. 2009/452) do not provide a duty to give reasons for a decision on a written representations appeal in England. The general duty to give reasons under section 10 of the Tribunals and Inquiries Act 1992 applies only where the right to be heard at an inquiry exists, which was not so here (see sections 78(2) and (3) and 319A of, and paragraph 8 of Schedule 6 to, the 1990 Act). And there is no relevant general duty at common law (see the judgment of the President of the Queen’s Bench Division in R. (on the application of Hasan) v Secretary of State for Trade and Industry

[2008] EWCA Civ 1312

, at paragraph 19). But it is common ground, and I accept, that the duty to give reasons here derives either from the principles of procedural fairness applied in the statutory context of a written representations appeal or from the legitimate expectation generated by the Secretary of State’s long-established practice of giving reasons in such cases, or both (see the judgment of Mr David Widdicombe Q.C., sitting as a deputy judge of the High Court, in Westminster City Council v Secretary of State for the Environment [1984] J.P.L. 27, at pp. 29 and 30). Thus, it is agreed, under section 288 of the 1990 Act a failure by an inspector in a written representations appeal to give intelligible and adequate reasons is the making of a decision “not within the powers of this Act”, and not a failure to comply with “any of the relevant requirements”. Although in these circumstances there is no statutory requirement for substantial prejudice to be shown, counsel also agree, again rightly in my view, that the court should exercise its discretion to grant or withhold relief in the usual way.

[52]Mr Harwood submitted that the inspector failed to provide reasons for his decision to the standard required, and that Mrs Martin had been substantially prejudiced by that failure. One of the “principal important controversial issues” in the appeal was whether, as national policy in paragraph 128 of the NPPF requires and all relevant guidance expects, the inspector had sufficient information on the likely effects of the development upon the settings and significance of heritage assets. This had been put in issue both by the council in refusing planning permission and by English Heritage in their objection. In her representations on the appeal Mrs Martin had adopted English Heritage’s objection. English Heritage’s view as a statutory consultee should have been given considerable weight (see the judgment of Beatson J., as he then was, in Shadwell Estates Ltd. v Breckland District Council

[2013] EWHC 12 (Admin)

, at paragraph 72). But the inspector failed to recognize that this was an issue in the appeal, failed to express any conclusions upon it, and failed to refer at all to government policy in paragraphs 128 and 129 of the NPPF or to any of the relevant guidance. It is therefore impossible for objectors, including Mrs Martin, to know whether he considered it at all.

[53]Mr Harwood submitted that there were several weaknesses in the information on heritage assets produced on behalf of Mr and Mrs Heyward, which had been identified in English Heritage’s objection but not acknowledged or dealt with by the inspector: the absence of a proper assessment of the significance of Castle Park Camp, Downhouse, the church at Brentor and also the Round Houseas designated heritage assets, or any assessment relating to undesignated assets, or of the ways in which the setting of each heritage asset contributed to its significance, or of the likely impacts of the development on their settings, the “element of contrivance” in the preparation of the photomontages – the use of a 50 millimetre lensrather than the 75 millimetre lens recommended by English Heritage, the selection of viewpoints from which views was obscured by trees or hedgerows, the lack of images showing both the turbine site and each heritage asset in a single view, the neglect of views from – rather than towards – the heritage assets, and the omission of any view of the setting of Downhouse showing Downhouse itself. These shortcomings in the material provided to the inspector, said Mr Harwood, left him unable to make the assessment he had to make – as one sees, for example, in the difficulty he had on his site visit when trying to locate the field where the turbine was to be erected, and from what he said in paragraph 22 of his decision letter about the likely visibility of only the upper part of the turbine from the enclosure at Castle Park Camp, ignoring its visibility from the ramparts themselves.

[54]I cannot accept that argument. I think it is unrealistic. As Mr Banner submitted,it rests on the mistaken premise that the sufficiency of information on the development’s likely impact upon the settings and significance of heritage assets was, in itself, a “principal important controversial issue” in the appeal. That was not so. For each of the heritage assets about which the council had expressed concern in its decision notice, what the inspector had to consider was whether the development might in any way harm the setting and significance of the heritage asset, and, if it might, whether there were benefits sufficient to outweigh any potential harm, giving that harm appropriate weight under the relevant statutory provisions (see paragraph 5 above), and in the light of relevant policy and guidance (see paragraphs 7 to 11 above). These wereclassic matters of planning judgment for him as decision-maker. In my view he dealt lawfully in every respect with the first question, firmly concluding that there would be no relevant harm. So the second question did not arise.

[55]In considering the possible effects of the proposed development on the settings and significance of listed buildings, he had to heed the statutory imperative in section 66(1) of the Listed Buildings Act to have “special regard” to the desirability of preserving a listed building, its setting and its features of special architectural or historic interest – conscious that “a finding of harm to the setting of a listed building is a consideration to which the decision-maker must give “considerable importance and weight””, as the Court of Appeal reaffirmed in the Barnwell Manor case (see paragraph 6 above). As for the effect of the development on the setting of the scheduled ancient monument, though he was not performing a statutory duty equivalent to that in section 66(1), the very fact of the monument’s inclusion in the schedule meant that, under section 1(3) of the 1979 Act, it was a heritage asset of “national importance”. For each heritage asset potentially affected by the development, government policy in paragraphs 126 of 141 of the NPPF required that its significance and any contribution made to its significance by its setting should be assessed, and this assessment taken into account when the effects of the development were being considered.

[56]Clearly, the inspector could only do all of that, and have confidence in the conclusions he reached, if he was satisfied that he had sufficient information about the setting and significance of each of the heritage assets he was dealing with.

[57]Was the inspector entitled to identify the relevant main issues in the way that he did in paragraph 2 of his decision letter? In my view he was. Indeed, he was clearly right to do so. In its decision notice the council had not asserted that there would be harm to the setting of any heritage asset. Its formal position at that stage was one of doubt. It was uncertain about the possible effects of the proposed development on the settings of the three heritage assets to which it referred. It did not refuse planning permission because “the information submitted as part of the proposal” was insufficient. It refused planning permission because, “[on] the basis of” that information,it was “not satisfied that the proposed wind turbine would not result in significant harm to the settings of [the three] nearby heritage assets”. That was how it framed the second reason for refusal (see paragraph 27 above). In doing so it acted on English Heritage’s advice, in their letter of 15 January 2014, that it could turn the proposal away “as it currently stands” because of the possibility that the development might harm heritage assets (see paragraphs 18 to 21 above). In spite of the further material provided on behalf of Mr and Mrs Heyward in the appeal the council held to this stance in its written representations, though now it went further, contending that there would be a “harmful impact” upon Castle Park Camp, and upon “the significance of the setting of other aforementioned Heritage Assets” (see paragraph 31 above). English Heritage made no further representations at this stage, but their original objection remained (see paragraph 32 above).

[58]The inspector, however, was making the decision afresh, as if the application for planning permission had been made to him in the first instance –the effect ofsection 79(1) of the 1990 Act –and was exercising his own planning judgment on the issues he had to decide. He had to consider the evidence before him in the appeal and what he had seen of the appeal site and its surroundings on his site visit. He was not constrained by the council’s decision notice, or by English Heritage’s objection, to state the main issues in the appeal in a particular way. But, as he defined them, the main issues relating to “the settings of designated heritage assets” embraced the “concerns” raised in the council’s second reason for refusal and amplified in its representations in the appeal (see paragraphs 27 and 31 above).Therewas no need for him to add, as a separate question, whether the information before him was sufficient to enable conclusions to be drawn on the question of harm. That question was inherent in the relevant “main issues” as he formulated them – the “effect on the settings of designated heritage assets; and whether any harm … is outweighed by other material considerations”. These were indeed the “principal important controversial issues”–or, as Mr Banner described them, the “substantive issues” – relating to heritage assets in this case.

[59]Neither the policy in paragraphs 128 and 129 of the NPPF nor any of the relevant guidance issued by the Government and English Heritage stipulatesthe form in which information about heritage assets is to be provided to the decision-maker, or how much information will be needed, in a particular case (see paragraphs 7to 11 and 22 above). The policy in paragraphs 128 and 129 of the NPPF is in general terms. Its tenor is pragmatic, not prescriptive. It indicates what authorities “should” do when determining applications for planning permission, and, therefore, what the Secretary of State or an inspector should do when deciding an appeal. Of course, the applicant for planning permission is expected to co-operate. But there is a note of caution in the second sentence of paragraph 128, discouraging the decision-maker from seeking any more detail than is truly needed to gain an understanding of the possible effects of the development on the significance of heritage assets. The minimum requirements are that the “relevant historic environment record should have been consulted” and “the heritage assets assessed using appropriate expertise where necessary”. Paragraph 129 of the NPPF requires the decision-maker to take account of “the available evidence and necessary expertise” when considering the likely impact on a heritage asset. Both the policy in the NPPF and the relevant guidance allow decision-makers a wide discretion in the approach they take, in each individual case, to assessing the particular significance of a heritage asset whose setting may be affected by the development proposed, and any impact the development might have.

[60]Four points may be made here. First, for a decision-maker, having enough information about the heritage assets that may be affected by a proposed development is never an end in itself. It is only a means to the end of making a good decision on the planning merits. Secondly, if the applicant for planning permission fails to provide enough information himself, the local planning authority – or, on appeal, the Secretary of State – may still be able to gain a full enough picture from all the relevant material to be able to make a decision on the merits. Thirdly, the risk for an applicant in providing less than the decision-maker regards as sufficient is a refusal of planning permission. And fourthly, as Mr Banner submitted, the amount of information the decision-maker may regard as sufficient is liable to vary a good deal from one case to the next.

[61]In this case an assessment of the likely effects of the development on heritage assets had been submitted with the application for planning permission, in the design and access statement (see paragraphs 13 to 17 above). English Heritage had provided, in their letter of 15 January 2014, very thorough and helpful comments on the significance and setting of Castle Park Camp (see paragraphs 18 to 21 above), and Dartmoor National Park Authority had highlighted the significance of the grade I listed church at Brentor (see paragraph 24 above). The council’s planning officer had given the committee his advice (see paragraph 26 above). And by the time the proposal came to the inspector on appeal still more information, including additional photomontages, had been provided on behalf of Mr and Mrs Heyward (see paragraphs 28 to 30 above), and the council and other parties had submitted relevant representations (see paragraphs 31 to 35 above).

[62]Had he found the material before him insufficient to show whether or not the development would harm the settings and significance of heritage assets,he could have asked for more, or he could simply have dismissed the appeal. Regulation 8(1) of the 2009 regulations provides that “[the] Secretary of State may in writing require the appellant, local planning authority and other interested persons, to provide such further information relevant to the appeal as may be specified”. The inspector did not find it necessary to do that, and he did not need to. It was open to him to make his decision on the appeal, one way or the other, on the evidence and submissions as they were – which is what he did.

[63]In my view the inspector could reasonably regard the information before him as sufficient for all of the judgments he had to make about the effect of the development on the settings and significance of heritage assets. And he clearly did regard it as sufficient.

[64]This did not bring him into conflict with government policy in paragraphs 128 and 129 of the NPPF, or with any of the relevant guidance, so as to require some explanation from him. He did not misinterpret or misapply government policy, or any relevant guidance. His decision is not inconsistent with either the policy or the guidance. Nor did he have to refer to it. The reality here is that he plainly did not share the council’s and English Heritage’s misgivings about the potential effects of the proposed development on heritage assets. His own judgment, in the light of all the evidence and submissions before him, including the additional material produced in the appeal, coincided with that of the council’s planning officer, who had recommended the grant of planning permission (see paragraph 26 above). In truth, he had all the factual information he needed about each of the heritage assets he had to deal with, and the benefit of such relevant expertise as was necessary to inform the making of the judgments required of him in this particular case. I should add that in my view there is no force in the suggestion that he gave too little weight to the views of English Heritage as a statutory consultee. He was aware of the concerns they had expressed when consulted on the proposal, but he did not have to accept that those concerns would justify a decision to dismiss the appeal.

[65]This is not a case of a decision-maker misconceiving what statute requires when the effect of development on listed buildings or their settings is being considered. In paragraph 23 of his decision letter the inspector not only referred to the provisions of section 66 of the Listed Buildings Act, but also repeated the phrase – “considerable importance and weight” – adopted by Sullivan L.J. in the Barnwell Manor case when recalling the relevant House of Lords and Court of Appeal jurisprudence on the nature of the decision-maker’s duty under those provisions.

[66]It is not suggested that the inspector misunderstood the concepts of significance and setting, as explained in relevant policy and guidance.And I cannot see how one could fault any of the specific findings he made when describing the setting of each of the three heritage assets and its significance. No mistake of fact is alleged. Mr Harwood did not point to any important fact or feature that the inspector failed to mention. One can see from paragraphs 21 and 22 of his letter that he made good use of what English Heritage had said about the significance and setting of Castle Park Camp in their letter of 15 January 2014, and in paragraphs 23 to 27 he captured the essential facts on the significance and settings of the listed buildings – the grade I listed church at Brentor in paragraphs 23 to 26, and the grade II listed buildings at Downhouse in paragraph 27. I do not accept that he ought also to have dealt with the likely effects of the development on the setting and significance of other heritage assets – designated or undesignated – not specifically mentioned in the council’s decision notice or written representations or in English Heritage’s objection. As for the Round House in particular, the design and access statement had provided an assessment and a conclusion, in the light of which neither the council nor English Heritage had voiced any concern about the possible effects of the proposed development (see paragraphs 16 and 17 above).

[67]The inspector brought together his conclusions on the main issues relating to heritage assets in paragraph 34 of his letter. Those conclusions are unambiguous. He did not merely conclude that it was unlikely that the setting or significance of any heritage asset would be harmed by the development. He concluded that “there would be no harm”, and that the settings of all of the designated heritage assets he was considering “would … be preserved”. This reflected the specific conclusions in paragraphs 22, 26 and 27, to the effect that there would be no harm at all to the setting or significance of any of those three heritage assets. These are not said to be irrational conclusions. Nor could that be said. They were planning judgments for the inspector to make – the sort of judgments with which the court will rarely interfere – based on his own observations on his site visit, the material provided to him in the appeal and what the parties had said about it. In short, I am satisfied that the judgments he made are legally flawless.

[68]None of the submissions made by Mr Harwood about the material provided by Mr and Mrs Heyward, and in particular the photomontages, amounts to a valid criticism of the decision (see paragraph 53 above). Those submissions do not show that the inspector failed to discern any effect the development might have on the settings and significance of the heritage assets he was dealing with. No doubt the photomontages were not a perfect illustration of all the likely effects of the proposed wind turbine on views towards and from Castle Park Camp, the church at Brentor and Downhouse. No doubt more images could have been produced. And no doubt the ones that were produced could have been prepared differently, in the way English Heritage suggest in their guidance. But points like this go nowhere in proceedings such as these unless they reveal something unlawful in the making of the decision impugned. In this case they do not achieve that. They do not show that the inspector made any error of law – for example, by reaching conclusions he could not reasonably draw from all the evidence before him, the parties’ representations and his own observations on his site visit, or by overlooking considerations relevant to the issues he had to decide. The photomontages must be seen for what they were – an aid to a decision-maker in making the necessary planning judgments. That is clearly how the inspector saw them, and how he used them. There is no reason to think that hehad ignoredthe points English Heritage had made about the techniques for creating reliable images,or that he was in any way misled by the images he was given, or that they prevented him from carrying out his site visit properly. The fact that he did not refer in his decision to every view in which the proposed turbine might be seen when looking from or towards each of the heritage assets, such as views from the ramparts of Castle Park Camp as well as from “the enclosure”, does not mean that he had failed to assess its effects as he should.

[69]Read fairly, the inspector’s reasoning in the relevant parts of his decision letter is, I believe, a full and clear discussion of the issues he had to resolve in deciding whether planning permission ought to be refused on grounds relating to heritage assets. It comfortably meets the requirement for intelligible and adequate reasons.

[70]The inspector’s analysis under the heading “Effect on heritage assets” in paragraphs 20 to 28 of the decision letter should be read together with his related conclusions on “Landscape and visual impacts” in paragraphs 7 to 19. He did not make the mistake of thinking that the setting of a heritage asset is merely a visual concept. But it is clear that the council’s concerns about the settings of heritage assets were largely to do with the likely visibility of the proposed development in the surrounding landscape, and, in particular, its likely effects in views from and towards each of those heritage assets. The conclusions on the development’s likely effects on the landscape, including the setting of Dartmoor National Park, are also carefully reasoned. It was clearly in this context that the inspector remarked, in paragraph 13, on there being no challenge to the accuracy and adequacy of the images submitted for the viewpoints at Brentor. The findings he made, with the benefit of those images, are clearly explained.

[71]His reasons on the development’s likely “Effect on heritage assets”are also impeccable. For each of the three heritage assets to which the council had referred in its decision notice, he described its location and the local topography, referred to its distance from the appeal site, identified its significance as a heritage asset and the considerations relevant to its setting, assessed the likely effect of the proposed wind turbine, taking into account views in various directions, and went on to set out his own findings and conclusions on the likely effects of the turbine on both “setting and significance”. In undertaking this assessment, he clearly had well in mind not only the documentary evidence before him but also what he had seen on his site visit. The planning judgments he made when assessing the likely effects of the development on the “setting and significance” of each heritage asset did not require any elaborate reasons. The explanation he gave for each of those judgments was coherent and convincing. It does not betray any failure to consider all of the evidence before him in the appeal, to carry out a suitably thorough site visit, to take into account the considerations relevant to his assessment, or, in the light of everything he had seen and read, to form the judgments he had to make. In the case of all three of the designated heritage assets with which he was concerned, the most powerful factors in his assessment were distance and landform – above all, the remoteness of the turbine site from each of the heritage assets in question. In the circumstances, his reasoning in paragraphs 21 to 28 of the decision letter is not only legally sound but also hardly surprising.

[72]I come back, then, to the main thrust of Mr Harwood’s argument: the submission that the inspector’s reasons are deficient, and his decision therefore unlawful, because he said nothing about the council’s concern, and English Heritage’s, that the information relating to the possible effects of the development on heritage assets was inadequate. That submission is, in my view, untenable. It is clear from paragraph 27 of the decision letter, where he was dealing with the possible effects of the development on the setting and significance of Downhouse, that the inspector had well in mind what the council had said in its second reason for refusal: that, on the basis of the information submitted, it was “not satisfied that the turbine would not result in significant harm …”. It can scarcely be suggested that he neglected that same concern where it related to the settings of Castle Park Camp and the church at Brentor. And in any event it is necessarily implicit in his findings and conclusions on the likely effects of the development on the setting and significance of each of the three heritage assets he had to deal with – all of them, in themselves, legally unimpeachable findings and conclusions – that he found the information before him appropriate and adequate for the task he had to perform. Otherwise, he would not have been able to form the judgments he did in concluding that there would be “no harm” to the setting or the significance of any of those heritage assets, let alone “significant harm”. These were the critical conclusions on this aspect of the case – and they are not attacked in these proceedings. Intrinsic to those conclusions, inevitably, was the inspector’s judgment that he could properly reach them on the evidence before him, and with the benefit of his site visit – and that in itself, I believe, was an entirely reasonable judgment. There was no need for him to spell this out by adding a sentence to say it, because it was obvious. His reasons are not deficient in this or any other respect.

[73]In my view, therefore, the inspector’s decision is lawful. Mrs Martin’s challenge fails on both grounds.

Conclusion

[74]For the reasons I have given this application must be dismissed.