In R (on the application of Gerber) v Wiltshire Council (see PP 2015/56) the court held that the local planning authority (“LPA”) had erred by failing to consult English Heritage in accordance with regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990. That limb of the decision was to have a knock-on effect.
Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Act”) provides that in considering whether to grant planning permission for development which affects a listed building or its setting, the decision maker “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”.
Recent judicial dicta on that statutory duty may be briefly summarised in the following way. (1) The duty does not allow a LPA to treat the desirability of preserving a listed building or its setting as a mere material consideration, to which it can simply attach such weight as it sees fit. (2) Where on consideration it concludes that harm is likely to flow, the LPA must give that harm considerable importance and weight. (3) In such circumstances, there is statutory presumption against planning permission being granted. (4) It is not an irrebuttable presumption, in that it can be outweighed by material considerations powerful enough to do so. (5) But a LPA can only strike a balance if it is conscious of the statutory presumption, and if it demonstrably applies that presumption to the development proposals it is considering.
In Gerber, the claimant also contended that the LPA had failed to discharge its duty under section 66 of the Act. The court had no doubt, given its earlier finding, that the section 66 duty was engaged. That being so, 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, it was necessary in the first place to evaluate the quality of the effect on the listed building and its setting.
The judge concluded that without the input that the statutory regime requires from the relevant national body with responsibility for such matters, namely English Heritage, it could not be said that the LPA had engaged with and properly discharged the section 66 duty. That failure amounted to a legal error.
