A local authority or an inspector required to decide whether or not to grant permission for development which affects a listed building is bound by s.66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 to “have special regard to the desirability of preserving the building or its setting”.

A local authority is also bound to consider the provisions of any relevant development plan and local finance consideration, as well as considering other material considerations, when making decisions about planning permission. Consequently, questions have been raised about how much weight should be given to the duty under s.66(1), and this issue has been discussed in two recent cases.

In both cases, the inspector had treated the duty under s.66(1) as forming one of a number of material considerations to be taken into account, rather than giving the duty additional weight. This approach was considered carefully by the courts.

In one of the cases, the court examined the approach taken to a similar provision of the Planning (Listed Buildings and Conservation Areas) Act 1990 and concluded that an inspector must give “considerable weight and importance” to s.66(1) when coming to a decision on whether or not to grant planning permission. The court’s view was that Parliament’s intention in enacting s.66(1) had been to give particular importance to the desirability of preserving the settings of listed buildings, and that an inspector must keep this in mind when carrying out a balancing exercise of the material considerations affecting the application.

The courts found that both inspectors had failed to give appropriate weight to the s.66(1) duty and that, in light of this, the decisions made by the inspectors could not be upheld.