Saturday, 16 March 2013

Listed buildings and their setting – special considerations

My colleague David Brock has posted an important note on his blog regarding the requirement in section 66 of the Listed Buildings Act to pay special regard to the desirability of preserving the setting of a listed building. A similar requirement is to be found in section 72 of the same Act, which calls for special regard to be paid to the desirability of preserving or enhancing the character or appearance of a conservation area.

David draws attention to the decision of the High Court in East Northants DC, English Heritage and National Trust v. SSCLG and Barnwell Manor Wind Energy Ltd [2013] EWHC 473 (Admin). Although this case related to a wind farm proposal, and the press has concentrated on that aspect of the matter, the case has important implications in relation to material considerations generally, as David explains in his note.

David’s piece can be accessed by clicking on the link in the left-hand column on this page.

While on this point, in yesterday’s piece about barns near listed farmhouses I had been tempted to go on to discuss the issue of the setting of the listed building, which could clearly arise where it is proposed to carry out a barn conversion or other development close to a listed farmhouse.

I don’t propose to discuss the E Northants case in this context (as David has already covered this in his recent blog post), but I have one or two observations to make on this topic.

Clearly a development which can be seen within a view of a listed building lies within the setting of that listed building. It cannot therefore be disputed that such a development could potentially affect the setting of the listed building. However, in approaching an assessment of the impact (if any) of the proposed development on the setting of the listed building there are two principal factors to be taken into account. First, the architectural quality or interest of the listed building itself is a material consideration in assessing the setting of that building. The nature and character of the listed building is clearly an important factor in judging its setting. Secondly, it is necessary not only to consider the listed building itself but also the nature and appearance of the existing surroundings of the listed building immediately prior to the proposed development being carried out.

There are bound to be some listed buildings (particularly if they are Grade II), where the setting of the listed building is unlikely on an objective view to be as sensitive as it would be in the case of a listed building of greater interest and/or of a higher grade. To put it simply, the same development in the vicinity of Hampton Court Palace would, by virtue of the character and quality of that listed building itself, have a far greater impact on the setting of that Grade I listed building compared with the impact that the same development would have on the setting of an unexceptional Grade II listed building such as a typical rural farmhouse. This is not to dismiss the issue of the setting of such a listed building as a material consideration, but it indicates that the setting of the listed building must be judged by reference to the character and quality of the listed building itself, rather than being considered in the abstract.

It is also important in judging the setting of the listed building, and in assessing the impact (if any) of the new development on that setting, to take full account of the contemporary context and of the way in which the setting of the listed building has changed over time. I can think of quite a few farms around the country where the majority of the older farm buildings have been removed and replaced with large modern ‘industrial’ style buildings over the past 50 years or so, producing a setting that is very different from the original farmyard ambience, with its traditional agricultural barns and cart sheds.

This twentieth century development, producing a typical complex of modern ‘industrial-style’ agricultural buildings, many of them metal-framed or concrete-framed and metal-clad, will have had a major impact on the historical setting of a listed farmhouse in such cases. But it is this existing setting against which the further impact (if any) of the newly proposed development is to be judged. It may also be relevant, for example, in terms of the materials with which the new development is to be constructed and in terms of its bulk and massing, that the proposed new development does not have any significant impact on the listed farmhouse when viewed in context with the other modern agricultural structures which form the existing setting of the listed house.

Ministerial advice, as now set out in the NPPF, endorses the approach to this issue explained in the preceding paragraphs. Paragraph 128 makes it clear that in determining applications, it is relevant to consider the significance of any heritage assets affected, including any contribution made by their setting. It is necessary to consider whether the relevant heritage asset is of any great significance in itself, and whether its setting makes any great contribution to the character and appearance of the listed building, especially if modern ‘industrialised’ agricultural buildings now form that setting. Paragraph 128 goes on to advise that the level of detail should be proportionate to the assets’ importance and no more than is sufficient to understand the potential impact of the proposal on their significance. The judgment that paragraph 129 of the NPPF calls upon an LPA to make must take these factors into account, and this would be entirely in accordance with section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990.

When I have had time to study the E Northants case in more detail, I may return to this topic. Even while writing this post I have received an email from a planning consultant with whom I work frequently, raising further questions about that judgment in relation to some of the earlier cases on the issue of material considerations. The implications of the case clearly need further thought, as David Brock has indicated.



  1. Is it possible that the NPPF now contains a perverse incentive, in being harsher upon development within the setting of a listed building, than development that demolishes a listed building?

    The case described below refers to the LB demolition being allowed because of a particular paragraph in the NPPF that allows LB demolition where it has "substantial public benefits". This has been held to apply to a wing for a faculty of a university; presumably this test might be met by many education, health, community, employment and infrastructure proposals...

  2. One of the bits of my planning degree that I remember keenly is the many failed attempts since 1947 to impose a direct betterment tax on development, and the equal number of times it has failed. It beggars belief that none of the main political parties understand (or wilfully ignore?) that CIL will fail in its primary purpose - to deliver funds for infrastructure projects - because it will stifle development just like every attempt at a development tax before it.

    Indeed, I can’t help but take a swipe at the RTPI in this matter: planning is meant to be an art and a science, yet the RTPI seems to have little to say about the empirical (scientific) evidence of the failure of betterment taxes. (I don’t wish to sound overly naïve though: I do realise that science is almost wholly absent from the practice of planning in this country, not least because there is precious little true scientific practice in the formulation of policies.)

    The failure of development taxes is entirely predictable of course, or at least it is in a free country where land hasn’t been wholly nationalised. People aren’t forced to release land for development, or to develop land that isn’t viable to develop, or doesn’t return sufficient profit to balance the risks, or is less enticing than other investment opportunities, so a new development tax is easily avoided by doing nothing. This distinguishes property development from, say, heating our homes - we can opt to spend a little less on such things, but we can’t opt out all together.

    Added to the blinkered outlook of politicians and professional bodies is the ignorance of the development industry. Some elements are switched on (the HBF seems to be making a good go of successfully challenging CIL levels and I understand has set up some form of task force, but I’d like to see someone stand up and just point out this is all wrong rather than worry about being portrayed as greedy developers for doing so!), but I don’t think the penny is anywhere near dropping for the majority of developers, especially the non-negotiable nature of an adopted CIL charge.

    What’s happening right now is a bit like watching a car crash in slow motion. There’s time to change direction, but no-one is going to. It will stifle development, but the blame will probably be directed at the economy and the millstone that is the Eurozone. But who knows, maybe the 2015 election will provide an opportunity for the winners to strike a different tone without performing an out and out U-turn. At the very least a CIL charge needs to be negotiable; in reality it needs dropping in favour of what should have happened in the first place, which is the evolution of the S.106 and not the revolution of CIL.

  3. This comment actually belongs on the more recently published CIL item, but once a comment is posted it is difficult to shift it. I also owe Andy an apology for my delay in moderating this comment, due to my having been out of the office for over a week.

  4. I am considering an appeal and would welcome your thoughts on the matter; A planning application for a Double garage which was proposed to be constructed of timber under a low-profile sheet metal roof and with a double width roller-shutter door has recently been refused.
    The building frontage would have been situated some 12m behind 6ft solid gates, with only the top 1.2 m of the front elevation visible for a maximum 4m width of the highway. The side elevations would not have been visible.
    Additionally the design of the building was carefully considered to ensure the lowest possible pitch to reduce any visual impact on the area, the materials were based on the contextual function of the ancillary purpose of the building and the timber construction was based on environmental and sustainability grounds.

    If approved it would have be sited within the curtilage of a grade2 listed building, which itself is within a Conservation area. The Heritage & Conservation officers reported that the proposed building itself would be ' unlikely to have any impact on the setting' of the listed building but a reason for refusal was that ''by reason of the proposed materials of construction and design of the building under section 72 of the of the Listed Buildings Act, which calls for special regard to be paid to the desirability of preserving or enhancing the character or appearance of a conservation area it is considered that the proposal would fail to preserve the character and appearance of the Conservation Area.''

    The Conservation Area was created around 2013 and includes approx. 50 properties including 18 built after 1900, and in the appraisal document merely specifies that Historic buildings in the character area predominantly date from the eighteenth century onwards (although older buildings are evident) and are mainly of traditional red brick construction with natural red clay pantile roofs.

    Given that when the CA was ratified there were already existing out of 30 historic properties, 12 with garages including 9 with very visible modern roller-shutter or metal up & over doors, including 2 within the setting of listed buildings, can it not be reasonably argued that they infact specifically therefore formed a part of the 'character and appearance of the Conservation Area'' and therefore an additional such feature would infact preserve the character and appearance of the area ?

    Thanking you in advance

  5. In answer to HWDo5 (13 August), questions of this nature are inevitably a matter of planning judgement, on which views may inevitably differ. If the LPA won’t change their view, then the issue will have to be tested on appeal.

    The argument put forward might reasonably be advanced in an appeal, but at this stage, I would make no prediction as to the view an inspector might take.