Developments affecting Listed Buildings: challenger bore onus of proof

Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”) provides as follows:

“In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall 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.”

In Jones v Mordue & Anor [2015] the Deputy Judge of the High Court interpreted this to mean that there is an onus on a decision-maker positively to demonstrate by the reasons given that considerable weight has been given to the desirability of preserving the setting of the particular listed buildings. Hence, the deputy judge found that failure to comply with the duty in section 66(1) of the Listed Buildings Act was established, because the Inspector had failed positively to show in his reasons that he had referred to and applied that section.
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However the Court of Appeal ruled that that inverted the normal burden of proof which the statute placed on the person challenging the decision which was to show that the decision maker had not given the appropriate weight under section 66(1).

In fact there were strong indications that the planning inspector had section 66(1) of the Listed Buildings Act factors in mind and that the section had been complied with.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.