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A settled position on ‘Setting’?

  • United Kingdom
  • Real estate planning - Planning briefings


On 18 July 2017, the Court of Appeal handed down judgment in Catesby Estates and SSCLG v Steer and Historic England in considering whether an inspector erred in law in his understanding of the concept of the “setting” of a Grade I listed building.

The leading judgment from Lord Justice Lindblom allowed the joint appeal against the decision of Lang J in the Planning Court[1], to reinstate the planning permissions previously granted by the inspector in July 2016.

The site under consideration is farmland, around 1.7km to the south-east of Kedleston Hall, a grade I listed building, and about 550m from the Grade I listed Kedleston Hall registered park and garden and the Kedleston Conservation Area. Planning permission had originally be refused by Amber Valley Borough Council for two similar applications for a housing led development, the first being for up to 400 dwellings and the second, on a smaller portion of the site, for up to 195 dwellings.

When considering the appeal, the inspector concluded, having regard to NPPF, the Planning Policy Guidance and the non-statutory guidance contained within Historic England’s ‘Good Practice Advice in Planning 3: The setting of Heritage Assets’, that the proposed development site was not within the setting of Kedleston Hall due, in part, to the physical and visual screening caused by a dense band of trees known as the ‘Derby Screen’, which was originally planted in the 1960s to obscure the views of Allestree and Derby.  The inspector had noted that whilst the site formed part of the Kedleston Estate and therefore had a social, historic and economic connection with it, this was insufficient to bring it within the Hall’s setting given the absence of a visual or physical connection.

Mr Steer challenged the inspector’s decision in the Planning Court, alleging that the inspector had erred in law by adopting an unlawfully narrow approach to setting of heritage assets, namely that visual and physical connections were essential if not paramount. Lang J upheld the challenge and quashed the planning permissions because, in her view, the inspector’s focus was on identifying a visual connection, such that the historic, social and economic connections were ‘set to one side in this exercise’[2].  As such, it was considered that the inspector had taken the wrong approach to setting.

Both Catesby Estates and SSCLG applied for permission to appeal, which was subsequently granted by the Court of Appeal which also linked the two appeals.  The single issue in the appeal before the Court of Appeal was whether the inspector had failed to discharge the duty in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. 

Pursuant to section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990, in considering whether to grant planning permission for development which affects a listed building or its setting the relevant planning authority must have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses. 

Applying Williams[3], Lindblom LJ confirmed that although ‘setting’ is a concept recognised by statute, it is not statutorily defined and does not lend itself to precise definition. Nevertheless, it is clear that setting of a listed building is capable of being affected in some discernible way by development, whether within the setting or outside it.  The Court reiterated the established position that the identification of setting and its extent it not a matter for the court, and will always be a matter of fact and planning judgment[4].

Whilst utilising the opportunity to provide some much anticipated clarification on his earlier judgment in Williams, Lindblom LJ highlighted three general points:

  • Firstly, the S66(1) duty makes it necessary for the decision-maker to understand what the setting is and whether the site of the proposed development will be within it or in some way related to it.
  • Secondly, there is no basis for a single approach to identify the extent of a listed building’s setting.  Each case will depend on the relevant facts and circumstances.
  • Thirdly, the effect of a particular development on the setting of a listed building are all matters for the planning decision-maker, provided that considerable importance and weight is given to the desirability of preserving the setting of a heritage asset.

Having considered the three points above and applying them to the specific facts of the case at hand, Lindblom LJ confirms that when reading the inspector’s decision letter as a whole the alleged errors by Mr Steer and Historic England, as upheld by Lang J, do not exist.  The inspector did not concentrate on visual and physical factors to the exclusion of everything else and did not adopt a narrow interpretation of setting, but rather showed an understanding of the relevant policies and guidance and applied them in a lawful way in assessing the likely effects of the development on the setting of each heritage asset. 

Whilst the inspector was entitled to look for a physical or visual connection, it is clear when reading the decision letter as a whole that this was not at the expense of discounting the historical, social and economic connect as irrelevant.  On the contrary, in this instance, the inspector was entitled to state that the extent of the setting of the listed building could not be determined by the fact of the historical, social and economic connection.  There had to be something more than this connection alone if the site was to be regarding as falling within the setting of Kedleston Hall.  The inspector was not making a statement of general principle, but was simply making a planning judgement on the facts of the case before him, as he was entitled in law to do.

Whilst the outcome of the case does not create any ground breaking new law in terms of how to interpret setting, it is useful reminder of the much referenced principle stated by Lord Carnwath in Hopkins Homes[5] that the courts should respect the expertise of the specialist planning inspectors.

Eversheds Sutherland were instructed by Catesby Estates throughout the planning process and subsequent judicial challenges.

1. [2017] EWHC 1456 (Admin)

2. Ibid. Paragraph 60

3. R(Williams) v Powys County Council [2017] EWCA Civ 427

4. applying R(The Friends of Hethel Ltd) v South Norfolk District Council [2011] 1 WLR 1216

5. Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] 1 WLR 1865; paragraph 25