Planning matters

This summer’s legal highlight: confirmation of the best practice approach to assessing the effects of development on the setting of heritage assets

This summer, as planning professionals in England were holding their breath for the publication of the final version of the revised National Planning Policy Framework (NPPF), a high-profile decision with implications for planners, heritage consultants and developers was handed down.

Catesby Estates Ltd v. Steer [2018] confirmed the established approach to assessing the effect of proposed development on the setting of heritage assets, providing useful guidelines for practitioners to be applied in similar cases, and bringing to an end a lengthy and complex legal challenge that involved three rounds of appeals and legal challenge in the courts.

Here is a summary of the key stages that led to the final outcome.

The site and heritage assets

The appeal site in question comprises farmland located 1.7km to the south-east of the Grade I listed Kedleston Hall and about 550m from the Grade I listed Kedleston Hall Registered Park and Garden and the Kedleston Conservation Area.

Kedleston Hall is a Neo-classical, Georgian country house which features Robert Adam interiors. The site formed part of the land owned by Sir Nathaniel Curzon, the first Lord Scarsdale who began rebuilding the manor house and laying out the park in 1761. Originally, the site had views of the park, and the park had views of Kedleston House and also of Derby. However, a screen of trees (the ‘Derby Screen’) was planted in the 1960s to block views from the house towards Derby, as the city expanded to the north-west.

Kedleston Hall, Derbyshire (credit: Hans A. Roshbach; Wikimedia)

The original application and first appeal under Section 78 of the Town and Country Planning Act 1990

Catesby Estates Ltd applied for planning permission in 2015 for a development comprising up to 400 new homes and a convenience store on a farmland site. Objectors to the original application held that the appeal site was within the setting of Kedleston Hall and Kedleston Park, due to the historic connections between the two and the farmland within the estate.

The application was refused by Amber Valley Borough Council, for a series of reasons including:

• A presumption against planning permission being granted due to less than substantial harm to heritage assets with the highest level of protection;
• Development resulting in ‘significant detrimental changes to the landscape character and setting, visitor and visual experience across the largely unaltered historical estate’s farmland landscape’ and the application site being particularly sensitive ‘in landscape and historic environment terms due to it being located within an area of primary and secondary multiple environmental sensitivity’; and
• The development causing ‘less than substantial irreversible and irreplaceable harm’ to the significance of the Grade I Registered Park and Garden and Grade I Kedleston Hall, as well as the Kedleston Conservation Area, as a result of the setting impacts, which was contrary to national planning policy; this harm was not outweighed by the public benefits of the proposal.

Catesby Estates lodged an appeal, officially starting the three-year long challenge of the decision. An Inspector appointed by the Secretary of State allowed the planning appeal (August 2016), concluding that the proposed development would not cause harm to the significance of Kedleston Hall, and would cause ‘only very modest harm to the significance of the Registered Park and the Conservation Area’. The Inspector concluded that ‘even if the Derby Screen were removed or opened out, the harm to the significance of the Hall would be very limited indeed and the harm to the Park still no more than modest’. The appeal was allowed in August 2016.

Kedleston Hall, the ‘Derby Screen’, and the site of the proposed development off Kedleston Road in red (credits: Google maps)

The second appeal: the legal challenge of the appeal decision in the High Court

Local resident and member of the Kedleston Voice campaign group Peter Steer challenged this decision in the High Court in 2016; Historic England, the National Trust and the Gardens Trust were also among the appeal objectors.

In June 2017, Lang J. upheld Steer’s challenge, as she considered that the Inspector had failed to focus on the ‘historic social and economic connections’ between the listed building and the development site. Accordingly, Lang J. concluded that the Inspector had used an unlawfully narrow definition of setting in his decision, as he had only focused on the visual connection between the site and the building. She quashed the planning permission.

The third (and final) appeal: the High Court ruling is challenged in the Court of Appeal, the planning appeal decision is reinstated and permission is granted

Now, back to summer 2018. Lang J’s judgment was overturned by the Court of Appeal in July this year, re-instating the Inspector’s decision from August 2016.

Specifically, Lindblom L.J. concluded that the Inspector had not erred in law when making his decision, and had not ‘adopted a narrow interpretation of setting’, as he had properly considered both visual effects as well as the historic, social and economic relationship between the site and Kedleston Hall.

The outcome: implications for practitioners

The Court of Appeal ruling sets out three general principles that practitioners, planners, and affected stakeholders should bear in mind when considering the setting of a listed building:

• The decision-maker must understand the setting of a listed building, even if ‘…its extent is difficult or impossible to delineate exactly…’, in order to make a measured judgment on whether a development will affect it;
• Each case should be taken on its own individual merits and qualities:

‘None of the relevant policy, guidance and advice prescribes for all cases a single approach… nor could it […] It may be that the site of the proposed development, though physically close to a listed building, has no real relationship with it and falls outside its setting, while another site, much further away, nevertheless has an important relationship with the listed building and is within its setting…’; and

• All decisions on setting are matters for the decision-maker, not the courts, unless there has been a clear error of law. Within this principle and referencing previous case law, Lindblom L.J. also specified that the preservation of heritage assets is still of utmost importance; ‘… “considerable importance and weight” must be given to the desirability of preserving the setting of a heritage asset’.

The assessment of the effect on setting has once again been firmly placed with the decision-maker; it is also confirmed that the consideration of what the setting of a heritage asset is (and therefore the potential for a development to affect it) should be based on a case-by-case assessment, where visual effects are considered alongside other factors, such as historic association (where relevant). This is already best-practice, which this latest Court of Appeal judgement has confirmed.

[1] Outline application for the erection of up to 400 dwellings (Use Class C3), convenience store (Use Class A1 up to 500 sqm floorspace) with associated access, earthworks and other ancillary and enabling works. All other matters (appearance, landscaping, layout and scale) reserved [Amber Valley BC – Ref AVA/2014/0928][2] July 2016 Planning Appeal Decision [Ref. APP/M1005/W/15/3132791][3] June 2017 High Court Decision [[2017] EWHC 1456][4] July 2018 Court of Appeal Decision [[2018] EWCA Civ 1697]