A local planning authority errs in failing to consult English Heritage
The effect of regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 is that a local planning authority (“LPA”) in England is required to consult English Heritage when it receives an application for planning permission for any development of land and the LPA thinks that the development “would affect the setting of a listed building or the character or appearance of a conservation area”.
Judicial authority demonstrates that the court will consider quashing a planning permission on the basis of an irrational failure on the part of a LPA to carry out such a consultation.
Helpful guidance was given by Sullivan LJ on the nature of the duty arising under regulation 5A in R (on the application of Friends of Hethel Ltd) v South Norfolk District Council [2010] EWCA Civ 894. In that case, despite the fact that the environmental statement submitted suggested that the development proposals could adversely affect the setting of a number of listed buildings in the area, the LPA failed to consult English Heritage.
The effect of regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 is that a local planning authority (“LPA”) in England is required to consult English Heritage when it receives an application for planning permission for any development of land and the LPA thinks that the development “would affect the setting of a listed building or the character or appearance of a conservation area”.
Judicial authority demonstrates that the court will consider quashing a planning permission on the basis of an irrational failure on the part of a LPA to carry out such a consultation.
Helpful guidance was given by Sullivan LJ on the nature of the duty arising under regulation 5A in R (on the application of Friends of Hethel Ltd) v South Norfolk District Council [2010] EWCA Civ 894. In that case, despite the fact that the environmental statement submitted suggested that the development proposals could adversely affect the setting of a number of listed buildings in the area, the LPA failed to consult English Heritage.
Sullivan LJ made it clear that the question for the purpose of regulation 5A was whether the development would affect the setting of the listed buildings, not whether it would affect the setting so seriously as to justify a refusal of planning permission. The extent of the effect, and its significance in terms of the setting, were exactly the matters on which the LPA should have sought the expert views of English Heritage.
Now once more, a LPA has fallen into a similar trap. In R (on the application of Gerber) v Wiltshire Council [2015] EWHC 524 (Admin) the claimant applied to quash the grant of planning permission by the LPA for the construction of a solar farm some 270 metres from a Grade II* listed building owned by him. One of his grounds was an alleged failure by the LPA to comply with the regulation 5A duty.
The court upheld this ground, finding on the basis of documentation contemporaneous with the decision to grant planning permission that the LPA had concluded that there was an effect on the setting of the listed building. (Accordingly, English Heritage should have been consulted.)
The LPA had erred, however, by seeking to make a planning judgment as to the quality of the effect rather than simply whether it existed. It is a conclusion that the proposed development would affect the setting of a listed building, and not the quality of the effect, which is the key issue triggering the consultation requirements.
John Martin is a planning law consultant
