Heritage asset

July 24th, 2018 by James Goudie KC

Catesby Estates Ltd v Steer (2018) EWCA Civ 1697 concerned the “setting” of a listed building, a concept recognized by statute, and factors, such as the historic relationship between places, in addition to visual and physical considerations and impact. The Court of Appeal held that in the context of an application for planning permission for a development that would potentially affect a listed building or heritage asset, the duty imposed by the Planning (Listed Buildings and Conservation Areas) Act 1990 s. 66(1) to have special regard to the desirability of preserving the asset or its “setting” required the decision-maker to determine the extent of the asset’s setting and the impact of the development upon it. In doing so, the decision-maker had to take account of social, historical and economic, as well as physical and visual, factors.  The setting of a heritage asset was not statutorily defined and did not lend itself to precise definition.  However, implicit in s. 66(1) was the idea that setting could be affected by development, whether within or outside it. Thus, the decision-maker was required to understand what the asset’s setting was, and whether the development site either lay within it or was in some way related to it. Identifying the extent of an asset’s setting and whether the development would affect it was a matter of applying planning judgment to the circumstances of the case, and unless there was clear error of law in the decision-maker’s approach, the court should not intervene. The decision-maker had to have regard to relevant policy and guidance, and to the principle that considerable importance and weight had to be given to the desirability of preserving that setting.  For a proposed development to affect the setting, there had to be a distinct visual relationship between the two.  That relationship had to be more than remote or ephemeral, and it had to bear on how the asset was experienced in its surrounding landscape. However, that did not mean that other factors were to be ignored.  Economic, social and historical considerations were also relevant.

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