Forest of Dean District Council v Secretary of State for Communities And Local Government

The statutory duty to have special regard to preserving the setting of a listed building gives that objective high priority and considerable importance and weight. It does not require refusal of planning permission whenever some harm to the setting is identified. The decision-maker must assess the significance, character and context of the asset, the nature and degree of harm, cumulative changes, visual and other environmental effects, and any mitigation. Where harm is less than substantial, it may be weighed against the public benefits under paragraph 134 of the National Planning Policy Framework. A planning judgment reached after a lawful assessment will not be disturbed merely because another view of the merits is possible.

The Council brought a statutory challenge under section 288 of the Town and Country Planning Act 1990 to an inspector’s decision allowing an appeal by the interested party and granting conditional planning permission for gypsy caravans at Newent, Gloucestershire. The inspector dismissed the enforcement appeal but allowed the planning appeal. The Council ultimately pursued one ground: that the inspector had misdirected himself under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and had misunderstood or misapplied paragraphs 131 to 134 of the National Planning Policy Framework in assessing the effect on three grade II listed buildings.

1. The application was dismissed. The inspector had lawfully discharged the duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. He expressly identified the statutory duty, treated it as a high hurdle, and gave the desirability of preserving the listed buildings’ settings high priority and considerable importance and weight.
2. The duty does not dictate refusal whenever development alters or causes some harm to a listed building’s setting. It requires the decision-maker to judge whether the proposed change is acceptable, as part of the broader planning assessment, while giving preservation special regard. The result depends on the facts and circumstances of the case.
3. The assessment was not confined to visual impact. It properly considered the extent of setting, the buildings’ significance, history, character and context, changes since listing, views from the buildings and gardens, the relationship with the appeal site, cumulative changes, and the effect of nearby nursery buildings and polytunnels. A proportionate and realistic assessment may take account of the present state and use of the heritage asset.
4. The inspector correctly understood the distinction in paragraphs 133 and 134 of the National Planning Policy Framework between substantial and less than substantial harm. For the existing development he found substantial harm overall. For the proposed scheme, the mitigation measures reduced the harm to the settings to a limited, less-than-substantial level. He was entitled to weigh that harm against the considerable public benefits.
5. Mitigation located within the setting is not, for that reason alone, irrelevant. Its likely effect must be assessed in the particular case. The proposed landscaping and planting were a decisive distinguishing feature between the two schemes and provided a rational basis for granting conditional permission. The inspector’s conclusions were neither irrational nor legally flawed.

The judgment itself describes an inspector’s decision dated 13 June 2013 allowing the planning appeal and granting conditional planning permission. The Council’s statutory challenge to that decision was dismissed.