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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Palmer v Herefordshire Council & Anor [2016] EWCA Civ 1061 (04 November 2016) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2016/1061.html Cite as: [2016] WLR(D) 584, [2017] WLR 411, [2016] EWCA Civ 1061, [2017] 1 WLR 411 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT: PLANNING COURT
HIS HONOUR JUDGE DAVID COOKE
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LEWISON
and
LORD JUSTICE HAMBLEN
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PALMER |
Appellant |
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- and - |
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HEREFORDSHIRE COUNCIL & ANR |
Respondent |
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Mr Matthew Reed (instructed by Herefordshire Council) for the Respondent
Hearing date: 25/10/2016
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Crown Copyright ©
Lord Justice Lewison:
"The proposed development consists of four large sheds, each approximately 95m long, 25m wide and 6m high. Each will have three feed silos adjacent, somewhat taller than the shed, and accommodate 45,000 broiler chickens at any one time."
"In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority … shall 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."
"When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset's conservation. The more important the asset, the greater the weight should be."
"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, including securing its optimum viable use."
"It is possible that the buildings would be visible from Flag Station and they would certainly adversely affect its setting. The amenity of the residents here is also likely to be adversely affected by traffic, activity, noise, smell and so on. It should be demonstrated that any adverse effects can be satisfactorily mitigated."
"I do not object to the proposals in principle but effective and appropriate mitigation is required in order to avoid adverse effects in the longer term, and to safeguard the amenity of residents at Flag Station and Shetton Barns to the south west. Without it, the development would be contrary to planning policy including UDP Policy LA2 Landscape character."
"Proposals for new development that would adversely affect either the overall character of the landscape … or its key attributes or features will not be permitted."
"Given the proximity of the proposal to the grade II listed Flag Station and its platform it is necessary to ensure that there is compliance with policy HBA4, Setting of Listed Buildings."
"HBA4 Setting of listed buildings
Development proposals which would adversely affect the setting of a listed building will not be permitted. The impact of the proposal will be judged in terms of scale, massing, location, detailed design and the effects of its uses and operations."
"Overall the proposal should have no detrimental impact on the setting of the listed building, Flag Station, given the mitigation measures proposed."
"The Conservation Manager (Historic Buildings) has considered the impact of the proposal on these historic assets and concludes that, with mitigation, including retention of woodland, the proposal is considered to meet the requirements of key policies HBA4 and LA4 of the HUDP and section 12 Conserving and enhancing the historic environment. (NPPF)"
"LA4 Protection of historic parks and gardens
Development which would destroy, damage or otherwise adversely affect the historic structure, character, appearance, features or setting (including the designed visual envelope) of a registered park or garden will not be permitted."
"Overall the proposal should have no detrimental impact on the setting of the listed building, Flag Station, given the mitigation measures proposed."
"Odour issues – all in relation to residential amenity"
"There have been a number of competing elements to consider, not least of which have been the economic and amenity issues, landscape and historic heritage issues. The preceding sections of this report set out these and other issues and how they have been addressed through the application submission and/or the imposition of conditions."
"Flag Station is in the control of the applicant, it is not unusual for dwellings on poultry units to be in close proximity to the buildings."
"Taken in the round, it seems to me that the sensible inference from all this is not that the officers and the committee failed to take account of impacts other than visual ones on the setting of the Flag Station, but that they reached a conclusion about the impact on the setting of the listed building in which they considered that the main potential impact on that setting was visual, and so naturally concentrated on that. It is not in my judgment necessary for officers to refer individually to every potential aspect of the impact on the setting, nor is there any requirement that any detailed or structured assessment should be made of every such aspect. It is not therefore a proper inference from the fact that they have failed to mention a particular point that it has been ignored. Given the amount of focus on noise and odour issues generally in this case, it is not credible that either officers or committee members did not have them in mind when considering the impact on the listed building. The assessment of that impact was a matter for the planning judgment of the committee. There is no doubt that the duty was considered and a judgment exercised, and I am not persuaded that any error of law was committed in doing so."
"It is still plainly the case that it is for the decision taker to assess the nature and degree of harm caused, and in the case of harm to setting rather than directly to a listed building itself, the degree to which the impact on the setting affects the reasons why it is listed. Further, it is for the decision taker then to balance that against the benefits of the development. The duty to accord "considerable weight" to the desirability of avoiding harm does not mean that any harm, however slight, must outweigh any benefit, however great, or that all harms must be treated as having equal weight. The desirability of avoiding a great harm must be greater than that of avoiding a small one. The desirability of avoiding harm to a high category heritage asset must be greater than that of avoiding a similar harm to a less important asset."
"Local planning authorities should identify and assess the particular significance of any heritage asset that might 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."
Lord Justice Hamblen:
Lord Justice Moore-Bick, Vice-President of the Court of Appeal, Civil Division: