Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the 1990 Act”) obliges 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.
In R (on the application of Forge Field Society) v Sevenoaks District Council [2014] EWHC 1896 (Admin), Lindblom J referred to this duty – and the parallel duty under section 72(1) of the 1990 Act in relation to development within a conservation area – in the following terms:
“… it is to recognise, as the Court of Appeal emphasised in [East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137], 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.”
In R (on the application of Obar Camden Ltd) v Camden London Borough Council [2015] EWHC 2475 (Admin); [2015] PLSCS 262, the claimant applied to quash the grant of planning permission by the local planning authority for a change of use of premises abutting onto, and sharing a party wall with, a listed building owned by the claimant. One of the grounds of challenge alleged a failure to comply with the duty under section 66(1) of the 1990 Act.
The court upheld that ground, noting that nothing was said in the officer’s report to draw the attention of the planning committee to the duty under section 66(1). Committee members could not be expected to acquire a working knowledge of a statutory test that had not been referred to in that report. Furthermore, paragraph 128 of the NPPF requires an applicant for planning permission to describe the significance of any heritage assets affected, and this had not been done.
John Martin is a planning law consultant
