Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1991 imposes a statutory duty on the decision maker, when considering whether to grant planning permission for development which affects a listed building or its setting, to have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses. There are three particular points to note.
The first is that the courts have held that the meaning of the word “preserving” in this context is “keeping safe from harm or injury”. Put another way, a positive contribution to preservation is not an essential requirement. The second is that the word “desirability” has been held by the courts to indicate that the preservation of a listed building, or its setting, is to be treated as a “desired or sought-after objective”. The third is that, while in relation to the development plan, this duty is merely a material consideration it has been given pre-eminence by its special statutory status.
In East Northamptonshire District Council v Secretary of State for Communities and Local Government [2013] EWHC 473 (Admin); [2013] PLSCS 73 an inspector had granted planning permission on appeal for a wind farm near a scheduled monument and other listed buildings. While he accepted that the proposal conflicted with development plan policies aimed at protecting the historic environment, he concluded that the harm to the setting of these heritage assets was outweighed by the benefits of the proposals in terms of the contribution they would make to renewable energy targets.
The court held that the inspector had failed to comply with the statutory duty under section 66(1). To give effect to that statutory duty, he should have accorded considerable importance and weight to the desirability of preserving the setting of these heritage assets when weighing this factor in the balance with other material considerations that had not been given this special statutory status. He had treated harm to the setting and the wider benefit of the proposals as if those two factors were of equal importance. Accordingly, for that reason and others, his decision would be quashed.
John Martin
