Case No: CO/6585/2015
Neutral Citation Number: [2016] EWHC 1151 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT

Birmingham Civil and Family Justice Centre
33 Bull Street, Birmingham, B4 6DS.

Date: 27 May 2016

Before:

THE HON MR JUSTICE COULSON

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Between:

	Joyce Boden	Claimant	
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	East Staffordshire Borough Council
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Sun & Soil Renewable 20 Ltd	Defendant

Interested Party	

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Mr Richard Wald (instructed by Aaron & Partners LLP) for the Claimant
Mr Anthony Gill (instructed by Angela Wakefield, 
solicitor to East Staffordshire Borough Council) for the Defendant
Mr Simon Pickles (instructed by Trowers & Hamlins LLP) for the Interested Party

Hearing Date: 17 May 2016

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Judgment
The Hon. Mr Justice Coulson :
1. INTRODUCTION 
1.	On 20 November 2015, the defendant’s Planning Committee granted planning permission (“the decision”) for the siting of a solar farm to the east of Nabb Lane, Rochester, in Staffordshire (“the site”).  The claimant, a local resident, seeks to challenge the decision by way of judicial review.  The application is opposed by the defendant and the IP. On 15 April 2016, Patterson J ordered permission to be considered at a ‘rolled-up’ hearing.  
2.	Although other matters had been raised by the claimant in her Statement of Facts and Grounds, Mr Wald on her behalf made plain that the sole ground for the application now was the defendant’s alleged failure to address the impact of the development on the setting of listed buildings in the manner required by law and by national and development plan policy.
3.	The structure of this Judgment is as follows.  In Section 2, I deal with the relevant facts.  In Section 3, I deal with the relevant law.  In Section 4, I set out my analysis of the claimant’s criticisms of the decision.  There is a brief summary of my conclusions at Section 5 below.  I am very grateful to all counsel for their helpful skeleton arguments and their succinct oral submissions.  
2. THE RELEVANT FACTS
4.	By an application for planning permission received by the defendant on 17 July 2015, the IP sought permission to build a 5 MW solar farm with ancillary buildings, security fencing, CCTV, access track and landscaping at the site.
5.	Amongst the documents supplied with the application were a Planning, Design and Access Statement (“PDAS”) and a Heritage Statement (“HS”).  The PDAS set out the policies relevant to the principle of renewable energy development.  It concluded:
“The landscape effects of the proposed development on the wider character area are limited by the low-lying nature of the development which limits interaction with aspects of landscape character.  There are limited areas within 2km where a view of the site is available, with only a slight minimal visual effect from a further distance; after the effects of the proposed screening, planting and other landscaping are taken into account, these effects would be further reduced.  Planting of native tree species will be undertaken in the hedgerows surrounding the site, and the management regime will be altered to allow taller growth thus helping to screen the site further…
The effect of the proposed development on the setting of nearby listed buildings would be minimal…
Overall the proposed development would contribute to the aims and objectives of national policies as set out in the NPPF and also local policy.
This development represents an excellent opportunity for East Staffordshire Borough Council to contribute to the UK’s legal obligations to derive 15% of energy from renewable sources and to reduce our carbon emissions by 26% by 2020.  This proposal to generate electricity from solar power would contribute to these goals, and this site has been selected and carefully designed in order that any impact on the surrounding amenity and environment are minimised.”
6.	The reference to ‘the nearby listed buildings’ was a reference to Denstone College, a collection of Victorian Gothic Revival buildings 800 metres northeast of the site, which is dealt with in detail in the HS.   
7.	The relevant parts of the HS dealing with Denstone College were as follows:
(a)	Introduction
“1.5.	This Heritage Statement is necessary as Section 66 of the Planning (Listed Building and Conservation Areas) Act 1990 states that special regard shall be paid to the desirability of preserving the setting of listed buildings. One of the core planning principles of the National Planning Policy Framework (NPPF) is the conservation of heritage assets ‘…in a manner appropriate to their significance…’ More details of national policy in relation to the historic environment are set out in Section 12 of the Framework and paragraph 128 indicates that applicants should provide a description of the significance of any heritage assets affected by their proposals (which is one of the purposes of this Statement). The same paragraph states that “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”.
1.6.	Paragraph 132 of the Framework states that “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. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification.” The Framework also relates importance in terms of “special interest” to the weight that should be given to the asset’s conservation.
1.7.	When considering the impact of a proposed development the National Planning Policy Framework refers to “material harm” (paragraph 65), “less than substantial harm” (paragraph 134) and “substantial harm” (paragraph 133) to heritage assets and their settings together with the planning consequences of any such findings. It is therefore the role of the heritage assessor to give reasoned arguments as to why the effects found should fall into one of these categories and thereby which paragraph of the NPPF applies. In the analysis of the impacts of the proposed development below a clear structure is set out on how this this assessment of impact is undertaken.
1.8.	Useful National Guidance which has been referred to includes Historic England guidance Historic Environment Good Practice Advice in Planning “Note 3 The Setting of Heritage Assets” and “Note 2 Managing Significance in Decision-Taking in the Historic Environment” (2015) as well as ‘Seeing History in the View’ (2011). Reference is also made to the published CLG Planning Practice Guidance to the National Planning Policy Framework (2014).
1.9.	The method for this assessment is to consider every heritage asset and its setting within 2km of the development site and where an impact is identified then a detailed 5 part assessment of the impact on the setting of that asset is undertaken following the Historic England Good Practice Advice note 3 (2015). Where an impact is not present a shorter summary is provided for each heritage asset. Where a heritage asset is part of a group of assets these are considered together and the cumulative impact on the individual settings of the assets is also discussed. Other heritage assets between 2km and 5km are also considered when a visual impact is noted during the site visit; when a visual link is identified in a ZTV; when there is a clear historical functional or other link to the site; when it is raised in pre-application discussions with Historic England and the LPA; or when of particular national significance (for example Grade I or 11* Listed Buildings). However following Historic England guidance 5km is not a fixed distance and other assets further away may be considered where appropriate.”
	Paragraph 1.11 of the Introduction dealt in considerable detail with the replacement Local Plan for East Staffordshire and its potential relevance. There were references to Strategic Policy 25 and Detailed Policy 5, both dealing with Heritage Assets.
(b)	Consultation With Historic England
The HS set out the response from Historic England dated 12 May 2015, which stated:
“To the best of my knowledge I am not aware of any heritage assets which would be impacted by a solar farm in this location.  We have objected to wind turbines proposed for land close to Croxden Abbey but Woodhouse Fields Farm [the site] is well away from there.  I cannot envisage a heritage objection at this stage.”
(c)	Methodology
The methodology to be adopted for accessing the impact of a proposed development on the setting of heritage assets was set out in section 5 of the HS.  This made extensive reference to paragraphs 132-135 of the NPPF (which are expressly concerned with Heritage Assets).  The table at section 5.7 said that a ‘minor’ effect was one which “will be noticed but is not relevant to the decision process.”  It was said to be an effect “beneath the threshold where NPPF applies”.
(d)	Assessment Of The Group Of Heritage Assets At Denstone College 
Step 1: Identifying the heritage assets affected and their setting
This part of the HS sets out the relevant assets at Denstone College and records Pevsner’s view that the building comprised a “sweeping composition”.  
Step 2: Assessing whether, how and to what degree these settings make a contribution to the significance of the heritage assets.
“The most significant components of the setting of the historic assets at Denstone College as a group are their position on the ridge and the hundred acres of land within which they sit.  The views towards the Chapel and School Hall from the northeast across the playing fields are significant and they allow the historic and architectural interest of these features to be appreciated as well as their relationship to the group as whole.  Similarly the immediate view from the southwest side of the war memorial into the college courtyard provides a similar function.  Views out from the college from its western side are only important for one of the heritage assets Denstone College, but are an important component as they provide a link to the parkland created around the college and provides sweeping 180 degree panoramic views which the college has been sited to exploit.  Views towards the college from the west are also important in that they allow the historical interest and relationship between the components of the college to be appreciated as well as the parkland which surrounds it.” 
Step 3: Assessing the effect of the proposed development on the significance of the assets.
“The development site lies outside of the immediate setting of the college.  Any potential effect relates to the impact on key views which contribute to the setting of the group of heritage assets.  
The site is visible only in views out from Denstone College on its western side looking southwest.  It is not a component of a key view towards the Chapel and hall from the east side or a component of the way the war memorial is designed to be viewed from its southwest side.  The site is visible between the trees and the golf course on the western side of the college and across the valley beyond.  This is also a small part of the total panoramic views...It is also important to note that photovoltaic panels are designed to absorb sunlight (rather than reflect it), and also have a non-reflective coating, thereby minimising the potential of glint and glare.  The impact of the development site would be minor.  This is defined as ‘an effect that will be noticed, but is not relevant to the decision process’...
The development site will intervene in views towards the college from the footpath on the south side of the Woodhouse Fields Farm.  It will not however block the view of the college and its related historic elements which will still be visible above the panels.  The impact of the development site will also be minor.”
(e)	Conclusions
“The impact of the development site on the group of heritage assets consisting of Denstone College, College Chapel, College Hall, and war memorial of Denstone College (all Grade II) is defined as ‘an effect that will be noticed, but is not relevant to the decision process.  This is still of relevance in the detailed design of the scheme.’  The development site lies outside of assets’ immediate setting and is only a small component of use to and from the college which only relate to the historic asset of Denstone College so there is no accumulative impact in this case.
As a result of the above assessment, it is considered that the proposed development accords with Sections 66 and 72 of [the Listed Buildings Act] and the relevant policies within the NPPF and the local plan.”
8.	The Officer’s Report (“OR”) was dated 17 November 2015 and was provided to the Planning Committee.  The OR summarised the HS, noting that it “concludes that the proposal will have minimal impact upon the setting of the collection of Grade II listed buildings at Denstone College and no impact on the setting of any other heritage asset (and this will include Croxton Abbey)”.  Under the heading ‘Other Issues’, the OR goes on:
“10.6.2	Paragraph 126 of the NPPF states that Local Planning Authorities should recognise that heritage assets are an irreplaceable resource and should conserve them in a manner appropriate to their significance.
10.6.3	The application is accompanied by an Archaeological Assessment which concludes that the site has minimal archaeological potential and a Heritage Report which concludes that the proposed will have minimal impact on the setting of listed buildings and recommends a program of investigation prior to commencement.  It is not considered that the proposal would unacceptably affect heritage assets and the suggested condition should be included in any approval.”
9.	The conclusions of the report were as follows:
“11. Conclusions
11.1	The proposal lies outside of any development boundary in an area where new development is strictly controlled by Policy SP8 of the Local Plan 2012-2031. The principle of the proposed Solar Farm in this rural location is compliant with Policy SP8 of the Local Plan 2012-2031. It is also compliant with the National Planning Policy Framework as it would generate renewable energy and in doing so would contribute towards the reduction of CO2 emissions.
11.2	Whilst the proposal has the negative effects associated with development within the open countryside, in particular its impact upon the rural landscape, on balance it is considered that the significant benefits associated with the generation of renewable energy and associated reduction of CO2 emissions outweigh any localised detrimental effects.
11.3	The principle of the development is therefore considered acceptable. The proposal would not unacceptably affect the character or appearance of its surroundings, the safe or efficient use of the highway network, the amenities enjoyed by the occupiers of nearby dwellings, protected species and their habitats, archaeology or flood risk.)”
10.	The Planning Committee met on 17 November 2015.  The first part of the meeting involved a site visit, in which the members went to a number of different viewpoints in order to observe for themselves the impact on the views towards the college. They then returned to debate the proposal, with the chairman indicating that he was a former pupil of the college, and thus very familiar with the setting.  Eventually the Committee voted in favour of the proposal, by 7 votes to 4. 
11.	The defendant’s formal decision permitting planning permission for the solar farm at the site was dated 20 November 2015.  
3. RELEVANT PRINCIPLES OF LAW
3.1	The Nature,  Status And Effect Of An Officer’s Report 
12.	I was referred to a number of cases in which the nature, status and effect of an Officer’s Report have been considered.  The relevant principles are set out below.  
13.	In R v Mendip District Council [2000] 80 P&CR 500, Sullivan J (as he then was) said:
“Whilst planning officers' reports should not be equated with inspectors' decision letters, it is well established that, in construing the latter, it has to be remembered that they are addressed to the parties who will be well aware of the issues that have been raised in the appeal. They are thus addressed to a knowledgeable readership and the adequacy of their reasoning must be considered against that background. That approach applies with particular force to a planning officer's report to a committee. Its purpose is not to decide the issue, but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large but to council members who, by virtue of that membership, may be expected to have substantial local and background knowledge. There would be no point in a planning officer's report setting out in great detail background material, for example, in respect of local topography, development planning policies or matters of planning history if the members were only too familiar with that material. Part of a planning officer's expert function in reporting to the committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail.”
14.	In R (Morge) v Hampshire County Council [2011] UKSC 2, Baroness Hale said at paragraph 36:
“Democratically elected bodies go about their decision-making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves. It is their job, and not the court's, to weigh the competing public and private interests involved.”
15.	In R (Hayes) v Wychavon District Council [2014] EWHC 1987 (Admin), Lang J expressly adopted the following principles in respect of officer’s reports:
“(a)	A report is not addressed to the world at large but to council members, who, by virtue of that membership, may be expected to have substantial local and background knowledge including local development plan polices.
(b)	It is not necessary for the report to set out development plan policies as it is reasonable to anticipate that the members will be familiar with that material.
(c)	The report should not contain excessive and unnecessary detail.
(d)	Reports do not (and should not) seek to be exhaustive.
(e)	The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. 
(f)	The report is not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury.
(g)	The courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated.
(h)	An application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the Planning Committee before the relevant decision is taken.
(i)	It is the job of the Council, and not the court's, to weigh the competing public and private interests involved.”
3.2	Heritage Assets
16.	Section 66 of the Listed Building Act provides as follows:
“In considering whether to grant planning permission for development which affects a listed building or a setting, the local planning authority or, as the case may be, the Secretary of State 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.”
17.	Paragraphs 132-134 of the National Planning Policy Framework (“NPPF”) deal with heritage assets.  Paragraph 132 provides: “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”.  This reflects the case law noted in the next paragraph. 
18.	Heritage assets were dealt with by the Court of Appeal in Barnwell Manor Wind Energy Ltd v East Northants DC [2014] EWCA Civ. 137, and by Lindblom J (as he then was) in R (Forge Field Society) v Sevenoaks DC [2014] EWHC 1895 (Admin).  At paragraphs 48-51 of his judgment in Forge Field, Lindblom J said:
“48.	As the Court of Appeal has made absolutely clear in its recent decision in Barnwell, the duties in sections 66 and 72 of the Listed Buildings Act do not allow a local planning authority to treat the desirability of preserving the settings of listed buildings and the character and appearance of conservation areas as mere material considerations to which it can simply attach such weight as it sees fit. If there was any doubt about this before the decision in Barnwell it has now been firmly dispelled. When an authority finds that a proposed development would harm the setting of a listed building or the character or appearance of a conservation area, it must give that harm considerable importance and weight. 
49.	This does not mean that an authority's assessment of likely harm to the setting of a listed building or to a conservation area is other than a matter for its own planning judgment. It does not mean that the weight the authority should give to harm which it considers would be limited or less than substantial must be the same as the weight it might give to harm which would be substantial. But it is to recognize, as the Court of Appeal emphasized in Barnwell, that a finding of harm to the setting of a listed building or to a conservation area gives rise to a strong presumption against planning permission being granted. The presumption is a statutory one. It is not irrebuttable. It can be outweighed by material considerations powerful enough to do so. But an authority can only properly strike the balance between harm to a heritage asset on the one hand and planning benefits on the other if it is conscious of the statutory presumption in favour of preservation and if it demonstrably applies that presumption to the proposal it is considering. 
50.	In paragraph 22 of his judgment in Barnwell Sullivan L.J. said this: 
“… I accept that … the Inspector's assessment of the degree of harm to the setting of the listed building was a matter for his planning judgment, but I do not accept that he was then free to give that harm such weight as he chose when carrying out the balancing exercise. In my view, Glidewell L.J.'s judgment [in The Bath Society] 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””. 
51.	That conclusion, in Sullivan L.J.'s view, was reinforced by the observation of Lord Bridge in South Lakeland (at p.146 E-G) that if a proposed development would conflict with the objective of preserving or enhancing the character or appearance of a conservation area “there will be a strong presumption against the grant of planning permission, though, no doubt, in exceptional cases the presumption may be overridden in favour of development which is desirable on the ground of some other public interest”. Sullivan L.J. said “[there] is a “strong presumption” against granting planning permission for development which would harm the character of appearance of a conservation area precisely because the desirability of preserving the character or appearance of the area is a consideration of “considerable importance and weight”” (paragraph 23). In enacting section 66(1) Parliament intended that the desirability of preserving the settings of listed buildings “should not simply be given careful consideration by the decision-maker for the purpose of deciding whether there would be some harm, but should be given “considerable importance and weight” when the decision-maker carries out the balancing exercise” (paragraph 24). Even if the harm would be “less than substantial”, the balancing exercise must not ignore “the overarching statutory duty imposed by section 66(1), which properly understood … requires considerable weight to be given … to the desirability of preserving the setting of all listed buildings, including Grade II listed buildings” (paragraph 28). The error made by the inspector in Barnwell was that he had not given “considerable importance and weight” to the desirability of preserving the setting of a listed building when carrying out the balancing exercise in his decision. He had treated the less than substantial harm to the setting of the listed building as a less than substantial objection to the grant of planning permission (paragraph 29).”
19.	Barnwell has been recently revisited by the Court of Appeal in Jones v Mordue [2015] EWCA Civ. 1243.  In that case, Sales LJ said that the burden of demonstrating a failure to comply with the duty to consider the impact of a proposal on a heritage asset lies upon the claimant, not the defendant/decision-maker, and that the defendant was not generally required to demonstrate positively that he had given ‘considerable weight’ to the desirability of preserving the setting and features of a listed building.  He said that Sullivan LJ’s comments in Barnwell “were made in the context of a decision letter which positively gave the impression that the inspector had not given the requisite considerable weight to the desirability of preserving the setting of the relevant listed buildings, where as a result it would have required a positive statement by the inspector referring to the proper test under s.66(1) to dispel that impression.”
20.	Thus, in Jones v Mordue, the Court of Appeal held that, on the facts of the case and the proper interpretation of the decision letter, the appropriate inference to be drawn was that the inspector had properly taken into account all the relevant provisions, “not that he has forgotten about all the other paragraphs apart from the specific one he has mentioned” (paragraph 28). This result can be contrasted with R (on the application of Blackpool Borough Council) v SoSCLG and another [2016] EWHC 1059 (Admin), in which Kerr J reached the opposite conclusion on the facts, in a case where the inspector found that major works to a listed building (including the removal of historically significant stained glass windows) would cause no harm that could not be controlled by planning conditions, and concluded that there was ‘no compelling conflict’ with preservation policies.
21.	The real issue for me is therefore simple: as a matter of fact and inference, which side of the line does this case fall on?
4. ANALYSIS
4.1	General
22.	In my view, the starting point for any consideration of the criticisms that the defendant failed to take proper account of the impact of the proposal on the setting of Denstone College is as follows:
(a)	The PDAS concluded that the effect of the proposal on the setting on nearby listed buildings was ‘minimal’ (because the site had been deliberately selected and “carefully designed”), whilst at the same time the proposal was “an excellent opportunity” to help the UK meet its obligations to derive energy from renewable sources and reduce carbon emissions (paragraph 5 above).
(b)	The HS carefully considered the impact of the proposal on all of the views to and from Denstone College.  It was the only substantial topic with which it was concerned.  It concluded that the impact would be ‘minor’ and affect a ‘small part’ of the total panoramic views (paragraph 7 (d) above).  
(c)	The OR recorded the HS as saying (twice) that the effect on the setting was “minimal”, and concluded that “it is not considered that the proposal would unacceptably affect heritage assets” (paragraph 8 above).
(d)	The Planning Committee members made a detailed inspection of the site which included a number of viewpoints looking towards Denstone College.  They also received additional oral advice in respect of the impact of the proposal on the setting of heritage assets and an officer presentation at the committee meeting on the same topic.
(e)	It was not suggested by the claimant at the time, nor is it suggested now, that – as a matter of fact - the impact of the proposal upon the setting of Denstone College is anything other than ‘minor’ or ‘minimal’, as recorded in the PDAS, the HS and the OR.
23.	On the face of it, therefore, the impact of the proposed development on the setting of Denstone College was something that was carefully considered by the PDAS, the HS, the OR, and by the defendant’s Planning Committee.  The conclusion was that the proposal had a minor/minimal impact on the setting of Denstone College such that, when the necessary planning balance was undertaken, this harm to the setting was outweighed by the wider benefits of the proposal (which was in accordance with development plan policy and the principle of renewable energy).   I turn to deal with the specific criticisms of the defendant in the light of those general observations.
4.2	Criticism 1: Wrongful Delegation Of Function
24.	 This first criticism arises out of the HS.  The claimant said that the OR wrongfully relied on the HS, and that this amounted to a wrongful delegation of the officer’s function.  In that respect, the claimant relied on the judgment of Hobhouse LJ in Credit Suisse v Waltham Forest LBC [1997] QB 362, CA, at page 379.  
25.	I do not accept that the OR delegated any part of its decision-making function.  In my view, it is plain from the OR, and from all the surrounding circumstances noted in paragraphs 22-23 above, that no part of this decision-making process was delegated.  It is commonplace for an OR to summarise the application documents.  That makes for sensible and efficient decision-making.  The OR must always have in mind its knowledgeable readership, and should not repeat in laborious detail all of the keys elements of the supporting documentation, which the Planning Committee will have read.  
26.	I note in passing that Credit Suisse was not a case about any aspect of planning, and I do not consider that it sets out any principles which are applicable to the present case.   Criticism 1 is therefore rejected.
4.3	Criticism 2: Proceeding On The Basis That ‘Minor’ Heritage Impact Did Not Engage Section 66
27.	This is the second criticism arising out of the HS.  The HS set out the view that a minor impact on heritage assets was irrelevant to the planning decision and did not engage the NPPF (paragraph 7(c) above).  By reference to the relevant principles, set out in paragraphs 16-21 above, that was wrong in law, as both the defendant and the IP accepted in answers to questions from me.  Any adverse impact on heritage assets, no matter how small (as long as it is more than de minimis) has to be considered under s.66.  As Mr Gill put it, “if the [harm] needle has moved at all, then the case law is engaged and the impact on the heritage assets has to be considered”.  
28.	The issue for me, however, is whether the error of law in the HS infected the decision-making process.  Did the OR advise and/or the Planning Committee decide that, because the impact on the setting of Denstone College was minor/minimal, it was not a matter which they had to consider further when reaching their planning decision?
29.	In my view, the answer to that question is plainly in the negative.  In particular:
(a)	The HS dealt in considerable detail with the impact of the proposal on the setting of Denstone College.  It is the principal topic addressed in the HS.  It is untenable to suggest that, simply because of the error in the table at section 5.7, the HS assumed that the setting of Denstone College was irrelevant to the planning decision.  If it had made such an assumption, the HS would not have needed to deal with the issue in any detail at all.  
(b)	The OR dealt with a variety of issues that were relevant to the planning balance.  One of those was the minor/minimal harm to the setting of Denstone College.  In my view, the only fair reading of the OR is that it gave this harm the weight required by s.66 and the NPPF, but concluded that the harm was outweighed by the many benefits of the proposal.  The phrase used, that the proposal “would [not] unacceptably affect” the setting, makes clear that the impact was carefully considered as part of the planning balance.
(c)	The site visit and much of the debate in the Planning Committee was all about the effect of the proposal on the landscape, and in particular upon the setting of Denstone College.  It is relatively rare for a planning committee to undertake such a site visit.  In my view this showed the importance they attached to the impact on the setting of Denstone College.  Again, therefore, contrary to the rogue statement in the HS (which wrongly said that minor/minimal harm was irrelevant to the planning decision), the Planning Committee themselves took the opposite view and considered it fully.  
30.	Accordingly, whilst I agree that there was an error in the HS, I do not consider that that error infected the decision-making process.  I therefore reject Criticism 2.
4.4	Criticism 3: Failure To Consider Their Duty Under Section 66
31.	This is the point at the heart of the claimant’s case.  The claimant alleges that the OR failed to address s.66 at all and therefore that the Planning Committee failed to have special regard (and give great weight) to the harm done to the setting of Denstone College.  Accordingly they say that this case is similar to Barnwell and Blackpool, and invite me to infer from the OR and the Planning Committee’s decision that s.66 simply did not arise for consideration.  
32.	I accept that neither the OR nor the minutes of the Planning Committee meeting expressly refer to s.66 or the considerable weight to be attached to the harm to the setting of Denstone College. However, having considered this criticism carefully, I have concluded that I should reject it.  There are a number of reasons for that.  First, I repeat the points made in paragraph 29 above. 
33.	Secondly, there can be no doubt that both the OR and the Planning Committee were aware of s.66.  It was identified, in express terms, in the HS, which they had read.  They would have been aware of the conclusion of the HS to the effect that the proposal was in accordance with s.66.  
34.	More importantly, I consider that this point was also considered by the OR.  It is certainly true that, as Mr Pickles put it, the OR dealt with this issue “with a light touch”.  As I have said, it is not expressly referred to. However, by reference to the principles set out at paragraphs 16-21 above, it does not need to be.  What matters is what was actually done, not which statutory or other provisions were referred to or omitted in the documents. 
35.	In my view, this is not a situation in which the OR gives the impression that the considerable weight that had to be given to the impact was either forgotten or contradicted by other parts of the OR (like the decision letter in Blackpool).  On the contrary, I conclude that the proper inference to be drawn from it is that the OR concluded that the harm was “acceptable” because, having undertaken the necessary s.66 balancing exercise, the minor/minimal harm (notwithstanding the considerable weight to be attached to it) was outweighed by the various benefits.  
36.	In my view, Criticism 3 really comes down to an assertion that, because the OR did not refer in terms to s.66, the court should conclude that the necessary balancing exercise was either not done or, at the very least, may very well not have been done.  In the particular circumstances of this case, I reject that submission.  I consider that all the documents, but the OR in particular, make clear that the necessary balancing exercise was done, but because the minimal/minor impact on the setting was significantly outweighed by the benefits, it was not regarded as being something which reasonably required any further elucidation.  
37.	For all these reasons, I reject Criticism 3.  
4.5	Criticism 4: Failure To Give Considerable Weight To The Harm
38.	This criticism is really only another way of putting the alleged failure to follow s.66.  The criticism is based on the presumption that the OR and the Planning Committee failed to follow s.66 and the case law summarised in paragraphs 16-21 above, and so therefore failed to do what Sullivan LJ said had to be done in Barnwell.  The alleged failure to follow paragraphs 132-134 of the NPPF puts the same point in another way.  
39.	Section 4.4 above is therefore repeated. As to the NPPF, the relevant parts of the NPPF were set out in the HS and, for the reasons that I have already given, it was not necessary to set them all out again in the OR.  The OR referred to the NPPF’s emphasis on preserving heritage assets.  Even though both the case law and the NPPF make plain that considerable weight has to be given to the harm done to heritage assets, however minimal/minor, there is still a balancing exercise to be undertaken.  I find that, for the reasons that I have already given, this was properly undertaken by both the OR and the Planning Committee.  I therefore reject Criticism 4. 
4.6	Criticism 5: Failure To Implement Property Development Plan Policy
40.	The claimant argues that the OR failed to refer to, or have regard to, development plan policy.  They say that some of the detailed policies were not referred to at all and some were only referred to for part of their content.  There was a vague suggestion that the proposal conflicted with these policies although no particulars of that allegation were ever advanced.
41.	I consider that this submission is untenable.  In my view, the HS made sufficient reference to Strategic Policy 25 (“SP25”) and Detailed Policy 5 (“DP5”).  Furthermore, it seems to me that the IP and the defendant complied with DP5 in full.  This Detailed Policy provided that:
“Listed Buildings
Alterations, extensions to listed buildings or development within the listed curtilage, or that which affects the setting of a listed building will be considered if accompanied with a Statement of Significance which sets out how the proposal potentially effects the significance of the asset.”
With the provision of the HS (the Statement of Significance), that is precisely what happened in the present case.  There is no evidence anywhere that the proposed solar farm conflicted with any of these development plans or policies.  I therefore reject Criticism 5.
4.7	Criticism 6: Misleading The Committee
42.	The complaint is that the OR quoted the HS as saying that the impact on Denstone College was “minimal” whereas in fact the HS said that the impact was “minor”.  It is said that this error misled the Committee.
43.	I reject this criticism out of hand.  It is a matter of semantics because, as Mr Wald accepted, there was nothing which turned on the difference between ‘minor’, on the one hand, and ‘minimal’, on the other.  Accordingly, although it was an inaccurate precis, it was an irrelevant inaccuracy.  
44.	I should say that Mr Lynch, the relevant officer, has not helped himself by suggesting in his witness statement that he deliberately used the word ‘minimal’ because he was expressing his own view, as opposed to summarising the view of the HS.  That cannot be right, because both of the references in the OR to ‘minimal’ are references to what the OR says that the HS concluded, and are not expressed in terms of the officer’s own view.  
45.	However, given that it is accepted that there is no difference between the two terms for present purposes, I need not say anything more on that topic. For these reasons, I reject Criticism 6. 
4.8	Criticism 7: Failure To Emphasise In The OR The Harm To Heritage Assets
46.	The claimant’s final complaint is that, within the OR, the question of the impact on the setting of Denstone College was not properly or adequately highlighted.  It was not in the Executive Summary and it only arose in the body of the text under the heading of ‘Other Issues’ (paragraph 8 above).  The claimant argues that, as a result, the OR did not give the topic the importance it deserved.  
47.	With respect to Mr Wald, this is a hindsight-only argument.  The setting of Denstone College was merely one of a number of factors which fell to be considered as part of the decision-making process. Some will doubtless have seemed just as or more important to the parties than the minor/minimal harm to the setting of Denstone College.  
48.	In any event, this is not a point which assists the claimant.  The setting of Denstone College was not one of the numerous objections identified by the claimant at the time of the Planning Committee meeting. Her husband’s reference to the topic could not have been more vague.  Even when these proceedings were started, the setting of Denstone College was far from being the only matter raised.  It has doubtless emerged into the limelight because it is the only issue on which the claimant feels that there is at least some prospect of success.  Just as the claimant did not accord it undue significance during the overall planning process, neither did the defendant.  It is for that reason that it was not in the Executive Summary and did not get its own sub-heading.
49.	There is therefore nothing in Criticism 7.
4.9 Summary
50.	For the reasons set out in Sections 4.2-4.8 above, I reject each of the criticisms of the decision of 20 November 2015, and therefore refuse permission to bring this application for judicial review.
5. DISCRETION
51.	In case I am wrong to refuse permission, I have to consider the question of discretion and whether it has been shown that any error would or might well have made a difference to the ultimate decision made: Simplex GE Holdings v Secretary of State [1989] 57 PNCR 6; Smech Properties Ltd v Runnymede BC [2016] EWCA Civ. 42.  This has a particular impact in the present case because, if the IP is not able to order the equipment by 8 July 2016, the development will not be economically viable.
52.	If there was an error, it was a failure to undertake the planning balance exercise expressly by reference to s.66 and paragraphs 132-134 of the NPPF, taking as the starting point the ‘considerable weight’ that has to be accorded to the minor/minimal harm to the setting of Denstone College.  In other words, the highest that it can be put by the claimant is that the balancing exercise should have been carried out from that different starting point.
53.	In most cases, I accept that, if the court finds that a different test has to be applied by the decision-maker, it is difficult or impossible for the court to conclude that the result would necessarily be the same. That is the whole point about an attack based on a decision-maker’s failure to apply the right test: who can say what the result would have been if the right test had been followed?
54.	But in the particular circumstances of this case, it is quite clear to me that, if the exercise was done again from that different starting point, precisely the same result would follow. The OR would expressly point out the considerable weight which, as a matter of law, was to be accorded to the harm to the setting of Denstone College. But the OR would then go on to explain that the harm was itself minor/minimal (because the site had been deliberately selected and the proposal had been carefully designed that way), whilst there were a number of unchallenged benefits of the proposal, in particular the environmental and economic benefits, both national and local (sections 10.2.12 and 5 of the OR).  In consequence, I find that any planning balance, even one starting expressly from the ‘considerable weight’ starting point, would have resulted in precisely the same conclusion. 
55.	I am fortified in that view by the evidence from Mr Lynch, who confirmed this approach in his witness statement, and explained why that was the only result possible in this case.  I am also strengthened in that view by the care and consideration that was given to the issue of the harm to the setting of Denstone College by the Planning Committee, who could not have been more careful in their appraisal of the impact of this proposal.  
56.	For all those reasons I consider that, if there was a failure to start the balancing exercise at the right place, this would not have affected the outcome here.  Thus, in the exercise of my discretion, if I was wrong not to grant permission, I have concluded that it is not appropriate to grant this application for judicial review.  
6. CONCLUSIONS
57.	For all those reasons, I refuse the claimant’s application for permission to bring judicial review proceedings.  If I am wrong about that and permission should be granted, I decline to grant substantive relief.  Although these matters can sometimes be finely-balanced, in the present case I conclude that the decision was lawful and did not contain or reflect any error of law.  If it did, on the particular facts of this case, it was not a substantive error and would have made no difference to the final outcome.  
58.	I would ask the parties to agree all consequential matters following the handing down of this Judgment.