Thursday, 19 July 2018

Setting of a listed building – CA overturns Steer

On Monday, 26 June 2017, I reported on the judgment of the High Court (Lang J) in the case of Steer v SSCLG [2017] EWHC 1456 (Admin), in which a very wide interpretation of the “setting” of a listed building was adopted by the Court for the purposes of section 66 of the Historic Buildings Act. However, that decision has now been overturned by the Court of Appeal sub nom. - Catesby Estates Ltd v Steer [2018] EWCA Civ 1697. The Secretary of State also appealed in a conjoined appeal, and Historic England was heard in the appeals as an Intervener. Judgment in the Court of Appeal was given by Lindblom LJ, with whom the other two judges agreed without comment.

The original High Court judgment led to some concern among planning professionals, and one correspondent in this blog observed that while Historic England would be pleased, virtually the whole land surface of the England could be argued to be the setting of some heritage asset or other, including buried archaeology! He suggested that a balanced and proportionate approach is required, but was not entirely sure this was it.

Lindblom LJ summarised the point at issue in a single sentence, namely whether the Inspector whose decision was challenged erred in law in his understanding of the concept of the “setting” of a Grade I listed building.

The site is farmland, about 1.7 kilometres to the south-east of Kedleston Hall, which is a Grade I listed building, and about 550 metres from the Grade I listed Kedleston Hall registered park and garden and the Kedleston Conservation Area, whose boundary on its south-eastern side extends to the edge of the park. About 1.5 kilometres to the north of the site are the Grade II* listed Kedleston Hotel and the Quarndon Conservation Area. The site itself was part of the manorial land owned by Sir Nathaniel Curzon, the first Lord Scarsdale, when, in 1761, he set about reconstructing his house and laying out the park. The land was beside the main road from Derby, by which most visitors to Kedleston Hall would arrive. From it one could see the park. And from the park there were views of the house. Kedleston Hall is widely acknowledged to be of exceptional historic and architectural interest, and is described in Pevsner as “one of the most magnificent apartments of the C18 in England” and “the most splendid Georgian house in Derbyshire, in extensive grounds”. The park was largely the creation of the architect Robert Adam.

In an effort to summarise this briefly, I will not quote from the materials cited by the court, but reference was made to the definition of the “Setting of a heritage asset” in the “Glossary” to the NPPF and to the guidance document entitled “The Setting of Heritage Assets – Historic Environment Good Practice Advice in Planning: 3” (“GPA3”), a revision of which was published in July 2015. (A second edition was published in December 2017, but it was the first edition that was current at the time of the original appeal.)

At the inquiry, there was a significant body of evidence, from Historic England, the National Trust, the Gardens Trust, the Development Control Archaeologist at Derbyshire County Council, and the experts called on behalf of the local community, Kedleston Voice, that the appeal site was part of the setting of both the Grade I listed Hall and the park, as well as the conservation area, even though the proposal would not intrude upon views to and from the Hall. The thrust of that evidence was that the appeal site was part of the setting of the Hall because it had formed part of the estate, managed historically as an economic and social entity, and it remained in its historic agricultural use, with hedges and mature trees characterising the field boundaries. From the Hall and the park, the surrounding rural context was important in preserving a sense of a parkland landscape at the centre of a managed rural estate, rather than in a suburban context. The site was on the primary visitor route to the Hall and Park and so visitors would experience the historical narrative, and the concentric influence of the Hall on its landscape, as they traversed the agricultural estate, then entered the enclosed, designed park and gardens, enjoying the drama of anticipation as a great English country house was revealed to them.

In approaching this main issue, the Inspector found it “difficult to dissociate landscape impact from heritage impact”. He observed that it was “not unreasonable to look at landscape quality and impact in purely physical or visual terms and to consider historical value and significance separately, in the context of the impact on the Hall and Park”. He concluded that (“setting aside for the moment the historical association with the Hall and Park”), the appeal site exhibited no features that could qualify it as a valued landscape in the terms of paragraph 109 of the NPPF. There was, he said, “no reason why, in physical or visual terms, harm to the landscape should compel dismissal of the appeals”, and “[the] question of its historical value may be addressed in relation to the settings of Kedleston Hall and its registered Park and Garden”.

Turning to “The settings of the heritage assets and the statutory and policy context”, the Inspector addressed himself to the definition of setting in the NPPF (the “surroundings in which a heritage asset is experienced”) and observed that the extent of a setting “is not fixed and may change as the asset and its surroundings evolve”. Setting is not itself a heritage asset but elements of a setting “may make a positive or negative contribution to the significance of an asset”. The Inspector pointed out that paragraphs 126-141 of the NPPF make it clear that, in considering a development proposal, what has to be assessed is the effect there would be, not on the setting, but on the significance of the heritage asset concerned.

Again, for the sake of brevity, I shall not attempt to summarise the Inspector’s observations upon considering the setting of each heritage asset, in turn. In his overall conclusions on the main issue, the Inspector acknowledged that “Kedleston Hall and its Park are heritage assets of the greatest importance” and that “[any] harm to their significance must carry very great weight in the balance against the public benefits of the appeal proposals required by paragraph 134 of the NPPF”. He held, however, that there was “no harm to the significance of the Hall and only very modest harm to the significance of the Park and Conservation Area”. There was a substantial tree screen planted in the 1960s and since substantially extended, but even if this tree screen were to be 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”. Against that harm the Inspector considered that there was “the very great public benefit of market and affordable housing which is much needed, especially in Amber Valley but also in Derby City”. This was, said the inspector, “more than sufficient to tip the balance in favour of the appeal proposals”. Applying the policy for the “presumption in favour of sustainable development” in paragraph 14 of the NPPF, the Inspector concluded that there was “no doubt that the adverse impacts of either development would not significantly and demonstrably outweigh the benefits from providing much-needed housing”.

Putting it briefly, the judge at first instance felt that the Inspector had taken too narrow a view of the “setting” of the listed building. However, Lindblom LJ observed that, although the “setting” of a listed building is a concept recognized by statute, it is not statutorily defined. Nor does it lend itself to precise definition (see R. (Williams) v Powys CC [2017] EWCA Civ 427, at paragraphs 53 to 58). Implicit in section 66 of the Listed Buildings Act, however, is that the setting of a listed building is capable of being affected in some discernible way by development, whether within the setting or outside it. Identifying the extent of the setting for the purposes of a planning decision is not a matter for the court, but will always be a matter of fact and planning judgment for the decision-maker. And as Sullivan L.J. said in R. (Friends of Hethel Ltd.) v S Norfolk DC [2011] 1 W.L.R. 1216, “the question whether a proposed development affects, or would affect the setting of a listed building is very much a matter of planning judgment for the local planning authority”.

In Williams Lindblom LJ, in the visual context that applied in that case, had distinguished between the “site” of a scheduled monument and its “setting”, which, he said, “encompasses the surroundings within which the monument may be experienced by the eye”. He went on to say that the circumstances in which the section 66(1) duty has to be performed for the setting of a listed building will vary with a number of factors – typically, “the nature, scale and siting of the development proposed, its proximity and likely visual relationship to the listed building, the architectural and historic characteristics of the listed building itself, local topography, and the presence of other features – both natural and man-made – in the surrounding landscape or townscape”, and possibly “other considerations too”, depending on “the particular facts and circumstances of the case in hand”. To “lay down some universal principle for ascertaining the extent of the setting of a listed building” would, he thought, be “impossible”. But – again in the particular context of visual effects – Lindblom LJ had observed in that case that if “a proposed development is to affect the setting of a listed building there must be a distinct visual relationship of some kind between the two – a visual relationship which is more than remote or ephemeral, and which in some way bears on one’s experience of the listed building in its surrounding landscape or townscape”.

Lindblom LJ stressed, however, that this does not mean that factors other than the visual and physical must be ignored when a decision-maker is considering the extent of a listed building’s setting. Generally, of course, the decision-maker will be concentrating on visual and physical considerations, as in Williams. But it is clear from the relevant national policy and guidance to which he had referred, in particular the guidance in paragraph 18a-013 of the PPG, that the Government recognizes the potential relevance of other considerations – economic, social and historical. These other considerations may include, for example, “the historic relationship between places”. Historic England’s advice in GPA3 was broadly to the same effect.

It has also been accepted by the Court of Appeal in previous cases that the effect of development on the setting of a listed building is not necessarily confined to visual or physical impact. As Lewison L.J. said in R. (Palmer) v Herefordshire Council [2016] EWCA Civ 1061, “[although] the most obvious way in which the setting of a listed building might be harmed is by encroachment or visual intrusion, it is common ground that, in principle, the setting of a listed building may be harmed by noise or smell”. In that case the potential harm to the setting of the listed building was by noise and odour from four poultry broiler units.

Lindblom LJ identified three general points which emerge. First, the section 66(1) duty, where it relates to the effect of a proposed development on the setting of a listed building, makes it necessary for the decision-maker to understand what that setting is – even if its extent is difficult or impossible to delineate exactly – and whether the site of the proposed development will be within it or in some way related to it. Otherwise, the decision-maker may find it hard to assess whether and how the proposed development “affects” the setting of the listed building, and to perform the statutory obligation to “have special regard to the desirability of preserving … its setting …”.

Secondly, though this is never a purely subjective exercise, none of the relevant policy, guidance and advice prescribes for all cases a single approach to identifying the extent of a listed building’s setting. Nor could it. In every case where that has to be done, the decision-maker must apply planning judgment to the particular facts and circumstances, having regard to relevant policy, guidance and advice. The facts and circumstances will differ from one case to the next. 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. Under current national planning policy and guidance in England, in the NPPF and the PPG, the decision-maker has to concentrate on the “surroundings in which [the heritage] asset is experienced”, keeping in mind that those “surroundings” may change over time, and also that the way in which a heritage asset can be “experienced” is not limited only to the sense of sight. 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”.

Applying those points to the Inspector’s decision in this case, Lindblom LJ did not find that the Inspector had erred in any of the ways that had been alleged. The Inspector recognised the relevance of those considerations to the setting of the listed building, to the impact of the development upon that setting, and its impact on the “significance” listed building as a heritage asset. He did not concentrate on physical and visual factors to the exclusion of everything else. It was clear from his decision letter that the Inspector was aware of the need to take into account not merely the visual effects of the development but also its effects on the historic value of the Hall, the park and each of the other heritage assets he had to consider.

Lindblom LJ therefore differed from the judge’s view that the inspector “adopted a narrow interpretation of setting … inconsistent with the broad meaning given to setting in the relevant policies and guidance … before him”. In his opinion the Inspector understood the relevant policies and guidance correctly, and applied them lawfully in assessing the likely effects of the development on the setting of each heritage asset. The appeal was therefore allowed, and the Inspector’s original decision was restored.

On reading this detailed and carefully reasoned judgment, it does not appear to me that Lindblom LJ was taking a significantly different view of the legal principles governing the “setting” of a listed building than those developed in previous cases. Clearly, a variety of factors are capable of being taken into account in assessing the setting of a listed building and the impact of proposed development on that setting, and not just physical or visual factors. However, if the first instance judgment may have given the impression to some people that the setting of a listed building is potentially limitless, then this decision of the Court of Appeal will serve to correct that impression. This judgment confirms that it is a question of balance, having regard to all the circumstances. The most important point is that this is ‘a matter of fact and degree’, and is thus a matter for the decision-maker, rather than the court. It would seem to me, therefore, that an Inspector’s decision with regard to the setting of a listed building would have to be Wednesbury unreasonable before it can be impugned as representing an error of law.


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