Catesby Estates Ltd and Historic England

Catesby Estates Ltd  and the Secretary of State for Communities and Local Government have succeeded in overturning the decision of Mrs Justice Lang to quash two planning permissions previously granted on appeal in July 2016.

The site was about 1.7 kilometres to the south-east of Kedleston Hall (Grade I listed building), and about 550m from the Grade I listed Kedleston Hall Registered Park and Garden and the Kedleston Conservation Area.  About 1.5 kilometres to the north were the Grade II* Kedleston Hotel and the Quarndon Conservation Area.  Catesby had an application for residential-led development (up to 400 dwellings) refused by Amber Valley Borough Council. The Borough Council also failed to determine a further application for a smaller residential proposal on part of the site. Catesby appealed both and they were allowed. However, an objector challenged these decisions and that challenge was upheld by Lang J.  

Catesby and the SSCLG were granted permission to appeal the Lang J ruling. The original appeals Inspector found that the site did not lie within the setting of Kedleston Hall. The single issue was therefore whether the Inspector erred in law in his approach to the effects of the development on the setting of Kedleston Hall, thus failing to discharge the duty in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.

The case was heard by Lord Justice McFarlane, Lord Justice Lindblom and Lady Justice Asplin. The crux of the matter was how the Inspector had dealt with ‘setting’ and whether he considered historical connections as well as physical ones.  In his leading judgement Lindblom L J highlighted that the setting of a listed building is not statutorily defined and it is not for the courts to identify the extent of a setting for the purposes of making a planning decision. He went on to say that three general points emerge – (i) under the s66(1) duty it is necessary for the decision-maker to understand what the setting is and whether a site is within it or some way related to it, (ii) there is no single approach to identifying the extent of a listed building’s setting and a planning judgement has to be applied, and (iii) the effect of a particular development on the setting of a listed building is a matter for the decision-maker subject to the principle of considerable importance and weight being given to the desirability of preserving the setting of the heritage asset.

Unlike Lang J, Lindbolm L J found that the Inspector did not adopt a narrow interpretation of setting by putting to one side historical considerations; he did not concentrate on visual and physical factors to the exclusion of everything else. Lindbolm L J noted that the inspector was not saying that land could only fall within the setting of Kedleston Hall if there was a “physical or visual connection”; he was simply saying that in this instance 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 appeal site were to be regarded as falling within the setting of the Hall. The Inspector had therefore not erred in law and the appeal was allowed.

Read the full decision below.