Town and country planning – Development – Heritage assets – Impact on setting – Claimant applying to quash inspector’s decision allowing appeals against refusal of planning permission on agricultural land – Whether inspector adopting unlawfully narrow approach when determining appeal site not part of setting of Grade I listed building – Application granted
The second defendant developer applied for outline planning permission for the erection of up to 400 dwellings and a convenience store on land in Allestree, Derbyshire, and for up to 195 dwellings in the southern half of same site. The claimant was a local resident who opposed the developments because of the harm which would be caused to the setting of Grade I listed Kedleston Hall, Park and Garden and the Conservation Area. The Hall and the Park were owned by the National Trust which objected to the proposed development because of the harmful impact on the setting and significance of the heritage assets which would not be outweighed by the benefits of housing. The third defendant local authority refused planning permission.
The second defendant’s appeal against that refusal was allowed by an inspector appointed by the first defendant secretary of state. The inspector concluded that, at present, the appeal site did not lie within the setting of the Hall as a band of trees in the parkland screened out the appeal site from the Hall. Even if did, the impact on its significance would be less than substantial and little more than negligible. The appeal site lay within the setting of the Park, Garden and Conservation Area but overall the harm to their significance lay very much at the lower end of “less than substantial”. In any event, the public benefit of much needed housing in the area was more than sufficient to tip the balance in favour of the appeal proposals.
The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash that decision on the ground, amongst other things, that the inspector adopted an unlawfully narrow approach when determining whether the appeal site was part of the setting of the Hall. In particular, he had misdirected himself that a visual connection was necessary or determinative, in addition to the evidence of a historical connection.
Held: The application was granted.
(1) There was a significant body of evidence before the inspector that the appeal site formed part of the setting of both the Grade I listed Hall and the Park, as well as the Conservation Area, even though the proposal would not intrude on views to and from the Hall. The evidence was that the appeal site was part of the setting of the Hall because it had formed part of the estate, managed historically as an economic and social entity, and it remained in its historic agricultural use, with hedged and mature trees characterising the field boundaries. The inspector was required to address that evidence, whether or not he agreed with it, because it related to a main issue in the appeal, on which the developer disagreed with the objectors. Much of the evidence was given by experts and the interested party was a statutory consultee whose views had to be given great or considerable weight. A departure from those views required cogent and compelling reasons. As an experienced inspector, he would have been aware of those requirements: Shadwell Estates Ltd v Breckland District Council [2013] EWHC 12 (Admin; [2013] PLSCS 9) applied.
(2) On a fair reading of the inspector’s decision, he concluded that the appeal site was not part of the Hall’s setting because of the lack of a physical or visual connection which he treated as essential to the identification of surroundings in which a heritage asset was experienced. The inspector’s findings clearly indicated that his focus was upon identifying a visual connection and assessing the proposal’s impact upon it. The historic social and economic connections were set to one side in that exercise and there was no assessment of the weight to be accorded to them in the decision-making process. Although the inspector set out the National Planning Policy Framework (NPPF) definition of setting, he adopted a narrow interpretation of setting which was inconsistent with its broad meaning in the relevant policies and guidance before him. Whilst a physical or visual connection between a heritage asset and its setting would often exist, it was not essential or determinative. The term setting was not defined in purely visual terms in the NPPF which referred to the surroundings in which a heritage asset was experienced. The word “experienced” had a broad meaning which was capable of extending beyond the purely visual. The inspector’s justification for his narrow interpretation was misplaced because the term “surroundings” in the NPPF definition placed a geographical limitation on the extent of the setting. The inspector had adopted an artificially narrow approach to the issue of setting which treated visual connections as essential and determinative. He made an error of law and his decision would be quashed.
(3) It was not possible for the court to judge that the outcome of the appeal would have been the same had inspector adopted the correct approach. It was inappropriate for the High Court effectively to step into the shoes of the decision- maker in this case and exercise a planning judgment on matters of such sensitivity and importance as the setting of a Grade I listed heritage asset, on which the local planning authority and the inspector disagreed.
Nina Pindham (instructed by Richard Buxton) appeared for the claimant; Jacqueline Lean (instructed by the Government Legal Department) appeared for the first defendant; Rupert Warren QC (instructed by Eversheds LLP) appeared for the second defendant; the third defendants did not appear and were not represented; Emma Dring (instructed by Sharpe Pritchard LLP) appeared for the interested party.
Eileen O’Grady, barrister
