Clarity on approach to listed building setting

Poultry, London

4 December 2015

After extensive recent case law from the ‘Barnwell Manor’ judgment [footnote 1] onwards, we now have some clarity on the correct approach in assessing impact on the settings of listed buildings in light of the section 66(1) duty [footnote 2] and relevant paragraphs of the Framework.

The ‘Mordue’ case had involved the High Court quashing planning permission granted at appeal for a single wind turbine in Towcester. In light of the Barnwell judgment the deputy judge reluctantly accepted that the Inspector had failed to demonstrate compliance with his duty under section 66(1) whilst giving reasons for thinking this was out of line with other higher authority, in particular Save Britain’s Heritage [footnote 3] [1991]. He particularly questioned whether his interpretation of comments in the Barnwell judgment was correct.

In summary, the Court of Appeal [footnote 4] has now agreed that it was clear in the Mordue case why the Inspector decided to grant planning permission and hence understood the deputy judge’s reluctance to quash the decision. However, it was held that he had read too much into the judgment of Sullivan LJ in the Barnwell case and that if read as a whole there was no intention to state an approach at variance with and more demanding than the higher judgment of Save Britain’s Heritage (authority regarding the standard of reasons  expected where a planning decision is taken to grant permission for development which harms listed buildings).

The Court of Appeal also considered that other authorities – Forge Field and North Norfolk – were not helpful in this instance as each inevitably involved differences of context, expression and nuance (whilst noting that nothing in these judgments had departed from the basic principles laid down by in Save Britain’s Heritage).

It was held that if the correct approach of Save Britain’s Heritage is applied to this case it could not be said that the reasoning of the Inspector gave rise to any substantial doubt as to whether he erred in law. On the contrary, it was considered that the Inspector made express references to relevant local and national listed building policy and the statutory duty – and then complied with it.

Notably, it was held that paragraph 134 (read together with 132 and 133) of the Framework lays an approach which corresponds with the duty in section 66(1) and a decision maker who works through those paragraphs in accordance with their terms, will have complied with the section 66(1) duty.

The Inspector was therefore lawfully entitled to assess that the harm to the setting of the listed buildings affected, giving that factor the weight due under section 66(1) and paras. 131-134 of the Framework, was outweighed in that instance by the environmental benefits from the wind turbine.

The appeal was allowed and the decision of the Inspector upheld.

As a footnote it is interesting that the Save Britain’s Heritage case ultimately considered by the House of Lords in 1991 concerned the demolition of listed buildings to make way for Sir James Stirling’s No.1 Poultry building – itself, now being considered for listing.

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[1] East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137; [2015] 1 WLR 45.

[2] Section 66(1) Planning (Listed Buildings and Conservation Areas) Act 1990

[3] Save Britain’s Heritage v Number 1 Poultry Limited [1991] 1 WLR 153, HL

[4] Jones v Mordue Anor [2015] EWCA Civ 1243 (2)