Listed building – Heritage asset – Setting – Appellant applying for planning permission for housing development on farmland near Grade I listed building – Local authority refusing permission – Inspector appointed by secretary of state allowing appeal – High Court overturning decision – Whether inspector misunderstanding concept of “setting” of listed building – Appeal allowed
In two conjoined appeals, the appellants, a property developer (C) and the secretary of state respectively, appealed against an order of the High Court upholding the refusal by the local authority of C’s application for planning permission for a housing development of around 400 houses. The appeal site was farmland near Kedleston Hall, a Grade I listed building, a registered park and garden and a conservation area.
Under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, when considering development proposals affecting listed buildings and heritage assets, decision-makers were required to have special regard to the desirability of preserving the asset or its “setting”. Paragraph 132 of the National Planning Policy Framework (NPPF) noted that the significance of an asset could be harmed by development within its setting, defined as the surrounding in which the asset was experienced. Under the Planning Policy Guidance (PPG), setting might be more extensive than curtilage and, although the views of or from an asset were important, the way in which it was experienced was influenced by a range of environmental factors.
Planning permission was refused on the basis that it would harm the setting and significance of the hall and parkland. Objectors to the proposed development, including Historic England, joined as intervener and interested party in the appeals, submitted that even though the development site would not intrude upon views to and from the hall and parkland, it lay within the setting of both. The site had originally formed part of the estate, remained in its historic agricultural use and was important in preserving a sense of a parkland landscape in a managed rural estate. An inspector appointed by the secretary of state found that something more visual and physical was necessary for the site to lie within the setting of the hall. He directed that permission should be granted on the basis that the development would cause no harm to the significance of the hall and only modest harm to the significance of the park and conservation area. The High Court quashed the inspector’s decision, holding that, by treating visual connections between the asset and the development as essential and determinative he had taken too narrow an approach to “setting”: [2017] EWHC 1456 (Admin). The appellants appealed.
Held: The appeal was allowed.
(1) Although the “setting” of a listed building was a concept recognised by statute, it was not statutorily defined and did not lend itself to precise definition. However, implicit in section 66 of the 1990 Act was that the setting of a listed building was capable of being affected in some discernible way by development, whether within the setting or outside it. Identifying the extent of the setting for the purposes of a planning decision was a matter of fact and planning judgment for the decision-maker. The section 66(1) duty, where it related to the effect of a proposed development on the setting of a listed building, made it necessary for the decision-maker to understand what that setting was, even if its extent was difficult or impossible to delineate exactly; and whether the site of the proposed development would be within it or in some way related to it. Otherwise, the decision-maker might find it hard to assess whether and how the proposed development affected the setting of the listed building, and to perform the statutory obligation to have special regard to the desirability of preserving its setting. The decision-maker had to apply planning judgment to the particular facts and circumstances, having regard to relevant policy, guidance and advice. The facts and circumstances would differ from one case to the next. Under current national planning policy and guidance in England, in the NPPF and the PPG, the decision-maker had to concentrate on the surroundings in which the heritage asset was experienced, keeping in mind that those surroundings might change over time, and also that the way in which a heritage asset could be experienced was not limited only to the sense of sight. The “surroundings” of the heritage asset were its physical surroundings, and the relevant experience, whatever it was, would be of the heritage asset itself in that physical place. The effect of a particular development on the setting of a listed building, where, when and how that effect was likely to be perceived, whether or not it would preserve the setting of the listed building, whether it would harm the significance of the listed building as a heritage asset, and how it bore on the planning balance, were all matters for the planning decision-maker, subject to the principle that considerable importance and weight had to be given to the desirability of preserving the setting of a heritage asset. Unless there had been some clear error of law in the decision-maker’s approach, the court should not intervene: R (on the application of The Friends of Hethel Ltd) v South Norfolk District Council [2010] EWCA Civ 894; [2010] PLSCS 219 and R (on the application of Williams) v Powys County Council [2017] EWCA Civ 427; [2017] PLSCS 132 followed.
(2) In the present case, the inspector had understood the policies and guidance and applied them lawfully. He recognised the relevance of the historical considerations relied on by the objectors, both on the extent of the hall’s setting and in relation to the impact of the proposed development on that setting and the significance of the hall and parkland as heritage assets. He had been aware of the need to take account of not only the visual and physical effect of the development but also its effect on the historic value of the hall and parkland. He was entitled to look for visual or physical effects to ascertain the extent of the setting, and his indication that there needed to be something more physical or visual than the historical considerations relied on by the objectors was a planning judgment on the facts. There was nothing to suggest that the inspector misunderstood the concept of the setting of a heritage asset and his approach was both consistent and correct.
Rupert Warren QC (instructed by Eversheds Sutherland (International) LLP) appeared for the appellant in the first appeal; Jacqueline Lean (instructed by the Government Legal Department) appeared for the appellant in the second appeal; Nina Pindham (instructed by Richard Buxton Environmental & Public Law) appeared for the respondent in both appeals; Emma Dring (instructed by Sharpe Pritchard LLP) appeared for the intervener in the first appeal and the interested party in the second appeal.
Eileen O’Grady, barrister
