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Planning Court endorses broad approach to 'setting'.

The Planning Court handed down judgment today in Steer v SSCLG, a s. 288 challenge to a Planning Inspector's decision to grant planning permission for housing development on a site located less than 1km away from Kedleston Hall, a Grade I listed building standing within a Grade I Registered Park and Garden and co-extensive Conservation Area.

The appeal site was situated on land which had historical, social and economic connections with Kedleston Hall, forming part of a large agricultural estate situated beyond the designed parkland around the Hall, and which had been managed from the Hall. However, the site was not visible from Kedleston Hall itself (and vice versa) because it was hidden by a belt of wooodland known as the Derby Screen, introduced in the 1960s to obscure views of the development of Allestree and the night-time glare from the expanding urban area of Derby.

The Inspector recorded the argument (made by various objectors including, Historic England and the National Trust) that the historical, social and economic connections between the Hall and the appeal site brought the site within the setting of the Hall. However, he said that: "there has, though, to be more of a physical or visual connection than that, otherwise land completely remote from the Hall could be deemed within its setting". The Inspector went on to consider the current and historical visual connections, and the likelihood of any historical designed view being restored through the opening up or removal of the Derby Screen. He concluded that the appeal site was not currently part of the setting of the Hall due to the existence of the Derby Screen. It was not within the setting from a historical perspective either because there was nothing to suggest that any historical view might someday be restored.

The Court (Mrs Justice Lang DBE) agreed with the Claimant and Historic England (which joined as an Interested Party) that the Inspector had "adopted an artificially narrow approach to the issue of setting which treated visual connections as essential and determinative", and that this had amounted to an error of law. Her judgment contains the following points of note:

  • It confirms (at para 52) that, as a statutory consultee, the views of Historic England should be given "great" or "considerable" weight, and a departure from those views requires "cogent and compelling reasons" (applying Shadwell Estates Ltd v Breckland DC [2013] EWHC 12 (Admin) outside the environmental context).

  • It confirms (at para 64) that the NPPF, PPG and Historic England's 'Good Practice Advice in Planning 3: The setting of Heritage Assets' ('GPA3') all support a "broad meaning given to setting", and that although "a physical or visual connection between a heritage asset and its setting will often exist, it is not essential or determinative". The word 'experienced' in the NPPF definition of 'setting' (see the Glossary) "has a broad meaning which is capable of extending beyond the purely visual".

  • It confirms (at para 67) that the NPPF definition of 'setting' includes the term 'surroundings', and therefore any concerns about remote land being included within the setting of a heritage asset in the absence of a physical or visual connection was "misplaced" because there was "a geographical limitation on the extent of setting".

Comment

The assessment of harm to heritage assets is sometimes conflated with the assessment of visual or landscape harm, but this judgment is a timely reminder that heritage assets can be harmed by development in their settings without there necessarily being any visual impact. The Court made substantial reference to Historic England's GPA3 and the guidance it contains about identifying impacts arising from development in the setting of heritage assets, including the staged approach to decision making and the list of 'attributes' (including non-visual attributes) which may held to elucidate its contribution to the significance of the asset. Decision makers should ensure that they are familiar with this guidance.

Emma Dring acted for Historic England. Please click here to view the judgment.