Martin v Secretary of State for Communities and Local Government

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?

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.

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)?

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”.

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 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 …”.

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

The Planning Practice Guidance issued by the Government in March 2014 emphasizes in 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 says that “[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”.

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:

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”.

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”.

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.

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”.

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”.

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”.

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”.

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

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.

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:

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

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:

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”.

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”.

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 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 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.

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:

Downhouse, a Grade II listed building

Castle Park Camp, a Scheduled Ancient Monument

Brentor Church, a Grade I listed building

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.

The additional photomontage relevant to the setting of Downhouse as a listed building, was photomontage 11. The relevant passage of the written representations, in paragraph 6.9, said:

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:

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:

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.

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”.

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:

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 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.

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:

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

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.

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:

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:

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:

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:

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

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

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:

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”.

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

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.

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):

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.

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.

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 House as 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 lens rather 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.

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 were classic 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.

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.

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.

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).

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 of section 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). There was 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.

Neither the policy in paragraphs 128 and 129 of the NPPF nor any of the relevant guidance issued by the Government and English Heritage stipulates the 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 7 to 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.

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.

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).

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.

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.

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.

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.

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).

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.

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 he had ignored the 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.

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.

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.

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.

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.

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

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