Tuesday, 12 March 2013

The Setting of Heritage Assets: High Court Ruling

A recent High Court ruling emphasises the importance of undertaking a proper assessment of the effects of a development on the setting of a listed building, conservation area, or other ‘heritage asset’.  This is no longer something that applicants can pay lip service to; the failure to follow the proper procedures can result in refusal of planning permission for what would otherwise be considered ‘sustainable development’.  Please get in touch if you would like to talk to us about Heritage Assessments and how they can benefit your project.

On Friday 8th March 2013 the High Court upheld a legal challenge against the decision of the Planning Inspectorate to grant planning permission for four wind turbines within a mile of Lyveden New Bield, a Grade I Listed Elizabethan Lodge, and its Grade I Registered Historic Park and Garden, said to be one of the most important Elizabethan landscapes in the country, amongst other heritage assets.

The challenge was made by East Northamptonshire Council with the support of English Heritage and the National Trust who were concerned that the allowance of the development would set a harmful precedent in relation to similar development across the country.

Mrs Justice Lang, in quashing the decision, stated that the Inspector had ‘‘erred in law’’, by failing to fulfil his duty under section 66(1) of the Town Planning (Listed Buildings and Conservation Areas) Act (1990) and failed to give proper effect to it in the balancing exercise as a consequence of not applying ‘‘considerable weight’’ to the value of preserving the setting of heritage assets.  It was also concluded that the Inspector failed to properly follow the relevant policy procedure which therefore compromised the balancing exercise and failed to give adequate reasons for his decision.

This comes in the light of other recent post-NPPF appeal decisions which have reflected on the issue of the setting of heritage assets.  Two appeals come particularly to mind.  In May 2012 a large mixed-use residential-led redevelopment of a site at Bunhill Row, London, was dismissed by the Inspector who concluded:

‘‘The appeal site is previously developed land in a highly sustainable location, close to facilities and public transport. There is no doubt that the scheme would be deliverable and contribute to the local housing stock, provide affordable housing, including family homes, create jobs, provide community floor space, and improve biodiversity and promote sustainable construction, design and travel patterns. Allowing this appeal may also ensure that the timescale for the provision of 60% affordable housing with grant funding could be achieved.’’

However, the Inspector found that the proposal would also cause substantial harm to the setting of important heritage assets and on that basis refused an application which clearly in all other regards was very sustainable.  This demonstrates the importance of setting to planning decisions.

The setting of heritage assets was considered within the decision of the Planning Inspector, referred to and upheld by the Secretary of State, to grant planning permission for a large urban extension of up to 800 new homes on land west of Shottery, Stratford-upon-Avon.  The Council had refused the application, partially on the grounds that it would harm the setting of Anne Hathaway’s Cottage (Grade I Listed) and its Registered Park and Garden (Grade II Listed).  

In considering the impact upon setting the Inspector had found that English Heritage had erred in its assessment of the settings of the relevant heritage assets.  In doing so, English Heritage had analysed setting as if it was a heritage asset in its own right, rather than relating it back to the significance of the heritage asset itself.  In this light, the Inspector found that ‘‘the evidence and judgements of the appellant’s heritage expert should be preferred’’.  The appeal was allowed when the Inspector concluded that there would be minimal impact upon the relevant heritage assets.

Therefore, what is increasingly apparent is that the setting of heritage assets is very important to the consideration of planning applications.  Applications and appeals will be won and lost on this basis.  However, further to this, what is even more apparent is that you get the assessment of setting wrong at your peril.  Undertaking an analysis of the setting of heritage assets is more an exact science than ever before and a visual assessment carried out by landscape architects, urban designers or architects will often be insufficient.  It requires the proper thought and assessment of those concerned with historic environment conservation.       

(Ben Eley for Alsop Verrill Ltd)

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