Court of Appeal

re-stresses importance of heritage setting assessment

An Inspector’s decision made on 22 August 2016, later quashed in June 2017, has now been allowed at the Court of Appeal on 18 July 2018.

The proposal involves a residential development on land approximately 1.5km to the south of the Grade I listed Kedleston Hall in Derbyshire, and somewhat closer to the boundary of its Grade I Registered Park & Garden.

In quashing the original Inspector’s decision, Justice Lang had concluded that the Inspector had adopted an unlawfully narrow approach to the question of setting. The Inspector had, he said, based his findings too much on the “visual” connection between the assets and the proposed site, and had “set to one side” aspects of historic, social and economic relationship that they might share. Thus, in the application of the law, the Inspector had not taken a broad and sufficiently inclusive assessment of setting, it had been concluded.

In July 2018, the Court of Appeal has found that the original Inspector’s decision was, indeed, lawful. The Court found that the Inspector had indeed considered all aspects of setting and that the decision arrived at was a professional assessment of the summary of those findings as they related to the case in hand. “He did not concentrate on visual and physical factors to the exclusion of everything else,” the Court of Appeal has found and the Inspector showed “a lawful approach to identifying the setting of Kedleston Hall, which did not neglect historical, social and economic considerations.”

There are a number of key principles which emerge from this judgment:

  • It is necessary for the decision-maker to understand what setting is - even if its extent is impossible to define exactly, and whether the proposed development will be in it or in some way related to it. Without such understanding, the decision-maker will be limited in his or her assessment of how the development ‘affects’ the setting of a listed building, and limited in the application of the statutory obligation to “have special regard to the desirability of preserving … its setting” (in the application of Section 66 of the Planning (Listed Buildings & Conservation Areas) Act 1990).
  • There is no single approach for defining setting. The decision-maker must apply the facts and circumstances of each case, having regard to relevant policy, guidance and advice. In the current policy context, this means having regard to the “surroundings” of a heritage asset and how the asset is “experienced”, keeping in mind the fact that surroundings change over time and experience is not limited to visual appreciation. The “surroundings” of the heritage asset are its physical surroundings, and the relevant “experience”, whatever it is, will be of the heritage asset itself in that physical place.
  • Thirdly, the effect of a particular development on the setting of a listed building – where, when and how that effect is likely to be perceived, whether or not it will preserve the setting of the listed building, whether, under government policy in the NPPF, it will harm the “significance” of the listed building as a heritage asset, and how it bears on the planning balance – are all matters for the planning decision-maker. The decision should have regard to the principle emphasized by the Court of Appeal that “considerable importance and weight” must be given to the desirability of preserving the setting of a heritage asset. It is anticipated that the new version of the NPPF will be published imminently, possibly in the coming week.

The above judgment continues to stress the importance of ensuring that the setting of heritage assets is thoroughly understood from the outset of a project, and that potential impacts or harms are clearly identified.

The Bidwells Heritage team has a strong track record in undertaking such assessments, and in addressing potential impacts arising. For further information, please contact Chris Surfleet (Partner, Head of Heritage) or Steve Handforth (Partner, Heritage & Design).

To be kept abreast of the policy changes and their impact then sign up for our Planning Alerts.


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