Court of Appeal sets out the general principles to be applied when considering the setting of listed buildings and the effect of developments

The Court of Appeal has handed down judgment in the conjoined appeals of Catesby Estates Ltd v Steer and Secretary of State for Communities and Local Government v Steer [2018] EWCA Civ 1697 providing general principles to be applied when local planning authorities consider the setting of listed buildings and the effect of development.

The case concerned a 2016 Inspector’s decision which granted planning permission for a housing development on land approximately 1.5km to the south of the Grade 1 listed Kedleston Hall.

In the High Court Lang J quashed the decision, concluding the Inspector had adopted an unlawfully narrow approach to the question of the “setting” of the listed building, had focussed on finding a “visual” connection, and had “set to one side” the historic social and economic connections between the Appeal site and the Hall.  

The Court of Appeal allowed the appeals. Giving the leading judgment, Lindblom L.J. set out three general principles to be applied when considering the setting of a listed building and the potential effect of a development on that setting:  

“[28] Three general points 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 …”. 

[29] 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 (see the discussion in sections 14.3, 15.2 and 15.8 of Mynors and Hewitson’s “Listed Buildings and Other Heritage Assets”, fifth edition). 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. 

[30] 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” of the listed building as a heritage asset, and how it bears on the planning balance – are all matters for the planning decision-maker, subject, of course, to the principle emphasized by this court in East Northamptonshire District Council v Secretary of State for Communities and Local Government [2015] 1 W.L.R. 45 (at paragraphs 26 to 29), Jones v Mordue [2016] 1 W.L.R. 2682 (at paragraphs 21 to 23), and Palmer (at paragraph 5), that “considerable importance and weight” must be given to the desirability of preserving the setting of a heritage asset. Unless there has been some clear error of law in the decision-maker’s approach, the court should not intervene (see Williams, at paragraph 72). For decisions on planning appeals, this kind of case is a good test of the principle stated by Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government[2017] 1 W.L.R. 1865 (at paragraph 25) – that “the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly”. 

Peyto Law Acts for Chiltern District Council in Prosecution for Failure to Comply with an Enforcement Notice

Louise Humphreys acted for Chiltern District Council (CDC) in the prosecution of Mr Asrar Ahmed and Lombard Hotels Limited for failing to comply with an enforcement notice with both defendants being convicted at High Wycombe Magistrates’ Court today (17 May 2018).

The case concerned premises known as Bubbles car wash, trading as Deep Mill Vans, on the A413 London Road in Little Kingshill.

In November 2014, CDC found that the number of vehicles being displayed, stored and sold on the site (which was located in the Green Belt and in an Area of Outstanding Natural Beauty) was far greater than permitted under the terms of the original planning permission. An enforcement notice was issued required the owners to comply with the condition limiting the number of vehicles on site and requiring them to be displayed in the permitted areas.

At the same time the owners submitted an application seeking to remove the relevant planning condition. This application was refused by CDC and that refusal upheld on appeal to the Secretary of State because of the impact on the Green Belt, AONB and on highway safety grounds.

Following the coming into force of the enforcement notice, CDC carried out numerous site visits and discovered that the number of vehicles on site still exceeded the permitted maximum and vehicles were being displayed outside of the permitted areas.

Prosecution proceedings were therefore brought against Lombard Hotels Ltd as the owner of the site and Asrar Ahmed as the sole Director of the company.

Following a trial at the Magistrates’ Court, both Defendants were found guilty of six offences each of failing to comply with the enforcement notice.

The case has now been sent to Aylesbury Crown Court for sentence and for the making of a confiscation order under POCA.

Land at Deep Mill Service Station – Bubbles Car Wash

Screening and Mitigation Measures – Environmental Impact Assessment

A recent decision of the Court of Justice of the European Union (CJEU) will have implications for all nationally significant infrastructure and other projects that could affect protected environmental sites with the special EU level of protection known collectively as Natura 2000 sites, or sometimes by some of their sub-types, Special Protection Areas and Special Areas of Conservation. 

The case, known as ‘People Over Wind v Coillte Teoranta’, concerned an electricity cable to connect a wind farm, and its potential to affect two SACs, one of which contains a species of mussel (the Nore pearl mussel) that is at risk of becoming extinct. 

By way of a quick precis, the mussels need clear water and so the deposit of any sediment would be an issue. The developers obtained a screening opinion that this would not be a problem if specified ‘protective measures’ were implemented, set out in a Construction Environmental Management Plan (CEMP). The screening meant that the project did not need to go further along the process of analysing effects on the SPAs known as ‘appropriate assessment’.

The High Court of Ireland referred the following question to the CJEU: “Whether, or in what circumstances, mitigation measures can be considered when carrying out screening for appropriate assessment under Article 6(3) of the Habitats Directive?”

The CJEU answered bluntly that “in order to determine whether it is necessary to carry out, subsequently, an appropriate assessment of the implications, for a site concerned, of a plan or project, it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on that site.”

The main reason given was that a full and precise analysis of the measures capable of avoiding or reducing any significant effects on the site concerned must be carried out not at the screening stage, but specifically at the stage of the appropriate assessment. 

This decision is at odds with a 2008 English case Hart v Secretary of State for Communities and Local Government, where Mr Justice Sullivan said that “I am satisfied that there is no legal requirement that a screening assessment under Regulation 48(1) must be carried out in the absence of any mitigation measures that form part of a plan or project.”

So where does that leave us? Although it doesn’t necessarily mean projects being more likely to be refused, it does mean they may have to go further along the appropriate assessment flowchart before they can get consent

A copy of the judgment can be found here

Court of Appeal to Hear Case on Lack of Reasons for Refusal to Call-In Scheme in July 2018

The Court of Appeal will hear Save Britain’s Heritage’s challenge over the refusal of then Secretary of State for Communities and Local Government, Sajid Javid, to give reasons for not calling in the Paddington Cube scheme, on 19 July 2018.

The campaign group said: “Our legal action is focused on the government’s failure to follow published policy announced in Parliament that reasons would be given for decisions not to call in major planning decisions for public inquiry. We believe this case goes to the heart of open and accountable decision making and needs robust scrutiny.”

In granting Save Britain’s Heritage leave to bring proceedings to the Court of Appeal in March, Lord Justice Lewison is reported to have said: “The question whether the Secretary of State may adopt a policy which does not conform with his published policy is an important one, and this ground of appeal has a real prospect of success.”

However, the Court of Appeal refused to grant the group permission to continue with its challenge to Westminster City Council’s decision to grant planning permission for the Paddington Cube, which is now marketed as Paddington Square.

Council wins High Court battle over viability and amount of affordable housing

A Planning Court judge has ruled in favour of the London Borough of Islington in a long-running dispute over a major development which it has said will provide insufficient affordable homes.

Mr Justice Holgate has also called on professional bodies and the government to revisit guidance on how to calculate financial viability.

Developer Parkhurst Road was seeking to redevelop the site of a 0.58 hectares former Territorial Army building in Holloway, for which it paid the Ministry of Defence £13.25m in 2013. Islington refused permission for a scheme for 112 homes – 16 of them affordable – in 2014, which was upheld on appeal on grounds of damaging the area’s character and appearance. The council also argued that Parkhurst Road had overpaid for the site and as a result did not follow its policy of 50% affordable homes in new developments, though the inspector said the company had paid “not…significantly above a market norm”.

Parkhurst Road made a further application in January 2016 for 96 homes, which Islington again rejected because the developer “failed to demonstrate that the proposed development will provide the maximum reasonable amount of affordable housing” and the lack of adequate section 106 obligations. It again went unsuccessfully to appeal and then to court over the way the inspector dealt with the first issue.

In Parkhurst Road Ltd v Secretary of State for Communities And Local Government & Anor [2018] EWHC 991 (Admin) Holgate J said having examined land and sales values in the area “it is clear that the appeal proposal would not provide the maximum reasonable level of affordable housing in accordance with policies”. He went on: “It is also important to ensure that new development is sustainable, delivering the maximum reasonable level of affordable housing in all cases so as to meet the needs of all.  I note the appellant’s position that no affordable housing will come forward if the development is refused planning permission but this argument could be applied to any residential case and is not justification for allowing development that does not properly meet policy requirements and objectives.”

Holgate J said the Royal Institution of Chartered Surveyors’ Professional Guidance: Financial Viability in Planning, issued with the Ministry of Housing, Communities and Local Government and the Royal Town Planning Institute, should address ‘circularity’ by which developers sought to recover excess purchase prices by reducing affordable housing provision. He said: “It might be thought that an opportune moment has arrived for the RICS to consider revisiting the 2012 Guidance Note…to address any misunderstandings about market valuation concepts and techniques, the ‘circularity’ issue and any other problems…so as to help avoid protracted disputes of the kind we have seen in the present case and achieve more efficient decision-making.”

Judges rule on meaning of ‘isolated’ homes and National Planning Policy Framework

As if we really needed to be told, the term ‘isolated’ has its ordinary meaning in the National Planning Policy Framework (NPPF) and needs no over-interpretation, the Court of Appeal has ruled.

Developer Granville had successfully appealed against Braintree District Council’s refusal of planning permission for two detached single-storey homes on the sites of two agricultural buildings outside the settlement boundary defined in the emerging development plan. 

The site lies between two listed farmhouses and the two pre-fabricated agricultural buildings that stood there were demolished in 2015.

Braintree argued that the inspector had misunderstood and misapplied paragraph 55 of the NPPF when he said that Blackmore End was “a recognisable village and is characterised by linear development extending along several roads”.

The inspector said: “There are a number of dwellings nearby and the development would not result in the new isolated homes in the countryside to which framework paragraph 55 refers.” He also concluded no material harm would be caused to the setting of two nearby grade II* and grade II listed farmhouses.

In giving the lead judgment in the Court of Appeal, Lindblom LJ said “Planning policies, whether in the development plan or in the NPPF, ought never to be over-interpreted. As this case shows, over-interpretation of a policy can distort its true meaning – which is misinterpretation”. He said paragraph 55 was “expressed in general and unprescriptive terms”, did not dictate a particular outcome for an application, contained no presumption and simply advised local authorities on how to promote sustainable development in rural areas.

The paragraph’s advice was to avoid “new isolated homes in the countryside”, which Lindblom J said: “Simply differentiates between the development of housing within a settlement – or village – and new dwellings that would be ‘isolated’ in the sense of being separate or remote from a settlement”. He explained: “Whether a proposed new dwelling is, or is not, ‘isolated’ in this sense will be a matter of fact and planning judgment for the decision-maker in the particular circumstances of the case in hand. In my opinion the language of paragraph 55 is entirely unambiguous, and there is therefore no need to resort to other statements of policy, either in the NPPF itself or elsewhere, that might shed light on its meaning.”

A copy of the judgment can be found here.

Court of Appeal backs decision to put neighbourhood plan to referendum

The Court of Appeal has ruled that Leeds City Council did not act unlawfully when it put a neighbourhood plan to a referendum after modifications had been made that partly differed from those recommended by the examiner.

Kebbell Developments had challenged the council’s decision to allow the Linton Neighbourhood Plan to proceed to a referendum. Kebbell had applied to the Council for planning permission to build 26 homes on a 4.5 hectares site called The Ridge but the site would be designated as unsuitable for development in the Neighbourhood Plan.

When the case first was considered in the High Court, Kerr J concluded that the Council had not dealt with the examiner’s recommendations unlawfully. Kebbell appealed to the Court of Appeal on this ground and also for failing to give sufficient reasons for its modifications. 

Giving the lead judgment, Lindblom LJ said that the modification was one the council was able to make in exercising its statutory powers.

40.       … The modification was comfortably within the ambit of the local planning authority’s statutory power to modify a neighbourhood plan before putting it to a referendum … The city council was entitled to conclude that the modification was effective both in securing compliance with the ‘basic conditions’ and in achieving internal consistency in the neighbourhood plan. There was no breach of the statutory procedure.

On the issue of reasons, Linblom LJ said

45.       I do not accept that … the city council’s reason, succinct as they were, can be regarded as unclear or inadequate.

High Court Gives Guidance on Approach to Noise

Following an Inspector’s decision upholding a LPA’s decision to refuse planning permission for a surface level car park for use by residents of a recently constructed block of flats, the appellant appealed to the High Court on the grounds that the Inspector misinterpreted or misapplied the Secretary of State’s policy and guidance on the approach to potential noise in the exercise of development control.

By way of background, as part of the application process expert noise evidence had been submitted by the appellant and, following the production of a technical note addressing concerns raised by the EHO, had reached agreement with the Council’s EHO team that the level of noise general by cars entering and leaving the car park would not cause a significant noise disturbance.  However, Members refused permission contrary to their officer’s recommendation.  Upon appeal by written representations, the council offered no expert noise evidence but argued that the cars would be cause disturbance because of the low frequency of use. 

In rejecting the challenge Mr John Howell QC sitting as a Deputy High Court Judge held:

In my judgment it is thus clear that the Inspector assessed for himself what the potential effect of the noise from the vehicular movements generated by the proposed development on the occupiers of the two properties would be in the absence of acoustic protection, finding that it would be disturbing, and that he rejected the applicant’s contention that the impact would merely exceed the “lowest observed adverse effect level” and would not exceed the “significant observed adverse noise level”. In my judgment it is clear that the Inspector addressed the Secretary of State’s policy and found that, in the absence of acoustic protection, the noise generated would exceed the “significant observed adverse effect noise level.


In my judgment the Inspector was under no obligation to refer to the views of the Council’s Environmental Health Officers or to express any view about the withdrawal of their objection in the light of the Technical Note.

High Court Considers The Meaning Of The Word “Mast”

The High Court has considered the meaning of the word “mast” as used in Part 16 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (“GPDO”). 

The challenge arose in the context of the installation of a number of “pole mounts”, used to support antennae, which had been installed on a building in Lewisham by Cornerstone Telecommunications Infrastructure Limited.

The pole mounts had been installed without planning permission, relying upon the general grant of planning permission for telecommunications apparatus under the GPDO. 

In the GPDO, the term “mast” is defined as “a radio mast or tower”. 

Lang J considered the ordinary meaning of the word “mast”, the legislative structure of Part 16, and the purpose of the restriction in para. A.1(2)(c) and concluded that the term “radio mast” should be broadly interpreted as including any pole which supports antennae which transmit and receive radio waves and that factors such as height, scale and design could not be implied into the definition given in the GPDO.

Accordingly, as the pole mounts here did support the antennae to transmit and receive radio waves, they were masts and the decision of the Defendant was irrational. 

The judgment is important, as paragraph A.1 of Class A sets out a number of limitations relating to the installation of “masts”. If these limitations apply, the installation of telecommunications apparatus is not permitted development. 

Court of Appeal Addresses Relationship Between Objectively Assessed Need (OAN) and the Need for Affordable Housing

The Court of Appeal has dismissed an appeal by Jelson Ltd against the judgment of Green J [2009] EWHC 2979 (Admin) in which he rejected its challenge to a decision by an Inspector on a section 78 appeal.

At issue was the Inspector’s approach to calculating the figure for the OAN in the borough, and specifically the relationship between the figure for overall housing need derived from the demographically-led household projections and the separate figure identifying the level of need for affordable housing.

Lindblom LJ (with whom Rupert Jackson LJ and Peter Jackson LJ agreed) found that the way that the Inspector had approached this task was lawful, making the following points:

Responsibility for the assessment of housing need lies with the decision-maker and is no part of the court’s role in reviewing the decision.  He emphasised the broad scope for a reasonable and lawful judgment and discouraged a legalistic approach to the review of such judgments.

The Inspector lawfully accepted the relevance of the need for affordable housing in assessing overall housing needs.  She exercised her judgment in taking it into account to reach an overall figure which, as a matter of planning judgment, sufficiently embraced the need for affordable housing as a necessary component of the full objectively assessed needs for housing in the area.

This was done by making what she judged to be an appropriate addition to the demographically-led household projections to ensure that the need for affordable housing was not omitted or understated.

The Inspector was right to recognise that simply adding the two need figures together would have been inappropriate and would have involved double-counting.  Planning judgment was required in gauging a suitable uplift to take account of the need for affordable housing, without either understating or overstating that need.

The figure identified within the SHMA to show how much open market housing would be needed to deliver the identified level of affordable housing need was rightly treated as not representing full objectively assessed need.

A copy of the earlier High Court judgment can be found here.