Paragraph 128 of the National Planning Policy Framework requires assessment of the impact of proposed developments against heritage assets and their setting. The High Court in Steer v Secretary of State for Communities and Local Government & Ors [2017] EWHC 1456 (Admin) has clarified that the setting of a heritage asset is not solely established by the visual and physical connection of the surroundings with the heritage asset. Historic, social and economic connections will also be relevant considerations.
The case concerned a legal challenge of a planning inspector’s decision to allow appeals for up to 400 dwelling outline development and a related up to 195 dwelling outline development. The development site was located near the Grade 1 listed Kedleston Hall. When assessing the impact of the development to the heritage asset, the inspector concluded that the development site was not within its setting due to the visual screening caused by the Derby Screen (a band of trees in the parkland which screened out views of housing at Allestreet, including the development site, from Kedleston Hall).
Historic England and the council (in refusing the planning applications in the first instance) had argued that the setting of Kedleston Hall included the development site due to a historical, social and economic connection between the Hall and the agricultural lands of the estate.
The principle question for the Court was whether the inspector was correct in narrowly interpreting the ‘setting of a heritage asset’ as being determinative only by physical or visual connection as opposed to the wider interpretation advocated by Historic England and the council.
The Court agreed that the inspector had wrongly adopted a too narrow interpretation of the setting for heritage assets. Mrs Justice Lang stated:
“[the inspector] adopted a narrow interpretation of setting which was inconsistent with the broad meaning given to setting in the relevant policies and guidance which were before him… Whilst a physical or visual connection between a heritage asset and its setting will often exist, it is not essential or determinative. The term setting is not defined in purely visual terms in the NPPF which refers to the "surroundings in which a heritage asset is experienced". The word "experienced" has a broad meaning, which is capable of extending beyond the purely visual.”
In particular, she noted Paragraph 013 of the Planning Practice Guidance which expressly states:
"The extent and importance of setting is often expressed by reference to visual considerations. Although views of or from an asset will play an important part, the way in which we experience an asset in its setting is also influenced by other environmental factors such as noise, dust and vibration from other land uses in the vicinity, and by our understanding of the historic relationship between places. For example, buildings that are in close proximity but are not visible from each other may have a historic or aesthetic connection that amplifies the experience of the significance of each.
The contribution that setting makes to the significance of the heritage asset does not depend on there being public rights or an ability to access or experience that setting. This will vary over time and according to circumstance."
Mrs Justice Lang also noted the similar non-statutory advice and guidance in Historic England’s ‘Good Practice Advice’. On Historic England’s statutory response to the planning application, she importantly noted that decision makers should give the views of statutory consultees ‘great' or 'considerable' weight. A departure from those views requires 'cogent and compelling reasons'.
The appeal decisions were accordingly quashed.
Lesson: the setting of a heritage asset requires an assessment beyond just the visual and physical setting of the asset with the surrounding land. Although these factors are important, other factors such as its historic, social, or economic connections will be relevant considerations. Notably, the opinion of Historic England will carry considerable weight when the decision maker is assessing the setting and impact of a development upon a heritage asset, unless there are contrary clear and compelling reasons.
