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 that 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”. Section 72(1) of the Act goes on to provide that, in the exercise of planning functions with respect to buildings or other land in a conservation area, “special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area”.
In R (on the application of Carnegie) v London Borough of Ealing [2014] EWHC 3807 (Admin), the claimant applied to quash the decision of the local planning authority (“LPA”) to grant planning permission for a shopping centre redevelopment. The site was not in a conservation area but it was bounded on three sides by a conservation area, and it was also within the setting of a number of listed buildings.
One of the claimant’s (unsuccessful) grounds of challenge was that the officer’s report to the planning committee was flawed in its approach to the heritage assets affected by the development proposals. Accordingly, the LPA had erred in law. The court rejected that contention for a number of reasons. However, the practical value of the judgment lies in the fact that it draws together recent judicial dicta on the statutory duties in question. That may be briefly summarised in the following way.
(1) The section 66(1) and section 72(1) duties do not allow a LPA to treat the desirability of preserving a listed building etc or preserving or enhancing the character etc of a conservation area as mere material considerations, to which it can simply attach such weight as it sees fit. (2) Where on consideration harm is likely to flow, the LPA must give that harm considerable importance and weight. (3) In such circumstances, there is strong presumption against planning permission being granted. (4) That presumption is a statutory one. (5) It is not an irrebuttable presumption, in that it can be outweighed by material considerations powerful enough to do so. (6) 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.
John Martin is a planning law consultant
