PP 2011/34

Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1991 obliges a decision maker, when considering whether to grant planning permission for development that affects a listed building or its setting, to have special regard to the desirability of preserving the building or its setting. R (on the application of Garner) v Elmbridge Borough Council [2011] EWHC 86 (Admin); [2011] PLSCS 32 provides guidance on the approach to be taken. In that case, the local planning authority (LPA) granted planning permission for a mixed-use development on the opposite bank of the River Thames from Hampton Court Palace, a scheduled ancient monument and Grade I listed building, and close to a Grade II listed bridge. The proposal was based on a planning brief that English Heritage had deemed to be satisfactory, after consultation with Historic Royal Palaces, the charity responsible for the upkeep of the palace. It was intended to redevelop and regenerate wasted space. A comprehensive committee report made it obvious that setting was one of the most important issues, but did not mention the section 66(1) duty specifically. The claimants sought judicial review of the LPA’s decision. One of their principal grounds of challenge was that it had failed to comply with its statutory duty under section 66(1). The court rejected that argument, holding that the LPA had done so. The following principles can be extracted from the judgment. (1) The decision maker cannot treat the desirability of preserving the setting of a listed building as a mere material consideration to which it can attach whatever weight it sees fit. (2) The language of section 66(1) goes beyond that and creates a presumption in favour of preserving the setting. (3) If a development would harm the setting, it is necessary to demonstrate that its merits outweigh that harm. (4) If the decision maker has in substance had due regard to the desirability of preserving the setting, a failure to refer expressly to the statutory provision or to its wording does not make the decision erroneous. Needless to say, in the instant case, the scope for challenge would in all probability have been reduced had the committee report and the stated reasons for granting planning permission made express reference to the section 66(1) duty. John Martin is a freelance writer