Catesby Estates Ltd v Steer

The setting of a listed building has no fixed or exhaustive definition. Its extent is a matter of fact and planning judgment, assessed by reference to the physical surroundings in which the building is experienced. Experience is not confined to sight: historical, social and economic relationships may be relevant.

Those relationships are not, however, conclusive. An historic association with a wider estate may be insufficient if it would treat geographically remote land as within the building’s setting. Under Planning (Listed Buildings and Conservation Areas) Act 1990, section 66(1), the decision-maker must understand the setting and assess whether development affects it, giving the statutory desirability of preservation considerable weight. The court will not intervene absent an error of law.

Catesby Estates sought permission for two housing schemes on farmland near Kedleston Hall, a grade I listed building, and its grade I registered park and garden. The council refused one scheme and failed to determine the other. A planning inspector allowed Catesby Estates’ section 78 appeals.

The inspector concluded that, because the Derby Screen blocked relevant views, the site was not within the setting of Kedleston Hall. He nevertheless found modest, less than substantial harm to the significance of the park and conservation area. Mr Steer, an objector, successfully challenged that decision under section 288 before Lang J: [2017] EWHC 1456 (Admin).

The Court of Appeal considered whether the inspector had unlawfully treated visual or physical connection as essential and determinative when identifying the Hall’s setting under Planning (Listed Buildings and Conservation Areas) Act 1990, section 66(1).

1. Both appeals were allowed. The inspector had not made an error of law. Lang J’s conclusion that he had adopted an unlawfully narrow, visual approach to setting could not stand.

2. Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires a decision-maker to understand the setting of a listed building and to decide whether the proposal affects it. Setting is not statutorily defined and cannot be delineated by a universal rule. Its identification is a fact-sensitive planning judgment.

3. The relevant surroundings are physical surroundings in which the heritage asset is experienced. The experience is not limited to visual perception. National policy and guidance recognise that historical, social and economic relationships, including historic relationships between places, may be relevant. The inspector was therefore entitled to consider such matters, but was not bound to find that an historic connection with the wider estate alone put the appeal site within the Hall’s setting.

4. Read fairly and in context, the inspector’s reference to the need for more than the site’s historic estate connection was not a general rule that visual or physical links are always necessary. It was his planning judgment on these facts. He had considered the historical evidence, the former designed views, the intervening Derby Screen, and the distinct settings of the Hall, the park and other heritage assets.

5. It was open to the inspector to conclude that the site did not lie within the Hall’s setting while the Derby Screen remained, and that any effect on the Hall’s significance if the screen were removed would be negligible. His separate finding of lower-end less than substantial harm to the park and conservation area was also lawful. The statutory duty requires considerable importance and weight to be given to preservation, but the evaluative assessment and planning balance remain for the decision-maker unless affected by legal error.

• Court of Appeal (Civil Division): Allowed the appeals of Catesby Estates Ltd and the Secretary of State in [2018] EWCA Civ 1697, holding that the inspector’s approach to setting was lawful.
• Planning Court, Administrative Court: Lang J upheld Mr Steer’s section 288 challenge to the inspector’s decision: [2017] EWHC 1456 (Admin).
• Planning inspector: Allowed Catesby Estates’ section 78 appeals against the refusal and non-determination of planning applications for housing development.