Clay & Anor v The Welsh Ministers

Section 16(2) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires special regard to the preservation of a listed building, its setting and features of special architectural or historic interest. It does not impose a general positive duty on a decision-maker to evaluate every alternative proposal, even where alternatives have been identified. Whether alternatives should be considered is ordinarily a matter of planning judgment. The decision-maker must nevertheless address evidence that the condition of the building itself creates an urgent need for works. Adequate reasons are given where the parties invited the decision-maker only to accept or reject the proposal, rather than to choose between competing alternatives.

The claimants sought statutory review of an Inspector’s dismissal of their appeal against refusal of listed building consent. They wished to replace the deteriorating original Collyweston stone roof slates of their Grade II* listed house with a reproduction slate. The local planning authority and Cadw identified natural slate alternatives.

The claimants argued that the Inspector had been required to compare and select the least harmful alternative under section 16(2) of the Planning (Listed Buildings and Conservation Areas) Act 1990, and that his reasons were inadequate. The central issues were whether the statute imposed that duty and whether the Inspector had properly addressed the matters before him.

1. Claim dismissed. There were no grounds to interfere with the Inspector’s decision.
2. Section 16(2) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires special regard to the desirability of preserving the listed building, its setting and features of special architectural or historic interest. It does not impose the wide positive obligation contended for by the claimants, namely a duty to choose between all identified alternatives.
3. The question whether alternatives should be evaluated remains a matter of planning judgment. The reasoning in Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2010] 1 P&CR 381 applied even though alternatives had been identified in this case. The Inspector was entitled to decide whether the proposed manufactured slate was acceptable without selecting a preferred natural slate.
4. The statutory duty also extends to preservation of the building itself. If evidence showed that the roof’s condition required urgent action to preserve the house, the Inspector would have had to consider that evidence. The evidence here did not establish such urgency, and that issue had not been advanced as a ground of challenge.
5. The Inspector’s reasons were adequate. Neither party had invited him to choose between competing slates. Each party had asked him either to uphold or dismiss the appeal, and his reasons addressed the material issue, namely whether the proposed artificial slate would preserve the special character and interest of the listed building.