Sections 66 and 72 and what they require of decisions

Sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 are short, and they are the reason a heritage refusal is harder to overturn than most others. Section 66(1) requires a decision maker considering development which affects a listed building or its setting to have special regard to the desirability of preserving the building, its setting and any features of special architectural or historic interest it possesses. Section 72(1) requires special attention to be paid to the desirability of preserving or enhancing the character or appearance of a conservation area.

Neither section prohibits anything. What they do is put a thumb on the scale, and the courts have been specific about how heavy that thumb is.

The two duties and what they cover

The duties are separate and they bite in different circumstances.

Section 66 is engaged by development affecting a listed building or its setting. Setting is doing a lot of work there, because a scheme several hundred metres from a listed building can affect it, and the duty applies to the decision on the planning application whether or not listed building consent is also required. Section 16(2) of the same Act imposes an equivalent duty on decisions about listed building consent itself.

Section 72 is engaged by the exercise of planning functions in respect of buildings or land in a conservation area. The test is the character or appearance of the area rather than any individual building, and it applies to development inside the area. Where development outside a conservation area affects its setting, the duty itself does not apply, though the effect remains a material consideration and national policy still requires the significance of the asset to be taken into account.

Both duties operate alongside national policy rather than being replaced by it, which is the point most frequently lost in officer reports.

What special regard means in practice

Preserving, in this context, means doing no harm. That reading comes from the House of Lords in South Lakeland District Council v Secretary of State for the Environment, and it matters because it means a scheme that leaves a heritage asset unchanged preserves it. There is no obligation to improve.

Where harm is found, the Court of Appeal in Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council established that the decision maker must give considerable importance and weight to the desirability of avoiding it. Harm to a listed building or its setting is not simply one consideration among many to be weighed in an ordinary balance. It creates a strong presumption against the grant of permission which other considerations must overcome.

The practical consequence for anyone reading a committee report is that the finding of harm and the weight given to it are two separate steps, and both have to be visible. A report that identifies less than substantial harm and then proceeds directly to a balance of benefits, without saying that considerable importance and weight has been attached to the harm, has probably not carried out the exercise the statute requires.

How the courts have handled the duties

Three further points from the case law shape how the duties are applied.

A decision maker who works through the relevant national policy tests on heritage will normally be taken to have complied with the statutory duty, without having to recite it. That was the effect of the Court of Appeal's decision in Mordue v Secretary of State for Communities and Local Government, and it is why the absence of an express reference to section 66 in a decision letter is not by itself a ground of challenge.

Where no harm is found, the duty does not require any balancing exercise at all, because there is nothing to weigh. The Court of Appeal addressed that in Palmer v Herefordshire Council. Establishing whether harm arises therefore does more work than arguing about weight.

And the duties do not create a prohibition. Permission can lawfully be granted where harm is found, provided the decision maker has given the harm the weight required and concluded that other considerations outweigh it. Inspectors do this regularly.

Where the duties sit against the planning balance

National policy adds its own structure on top of the statutory duties, and the two have to be run together rather than in the alternative.

The step most often skipped is the third one. Harm has to be characterised and located on the spectrum, with reasons, rather than asserted. A heritage assessment that records substantial harm where the effect is plainly at the lower end of less than substantial damages its own credibility, and one that finds no harm at all where a conservation officer can see it damages it further.

Great weight should be given to the conservation of designated heritage assets under national policy, and that weight increases with the importance of the asset. A grade I listed building attracts more than a grade II one, though all listed buildings are designated heritage assets and the duty applies to each.

Officer reports and how to check them

Reading a committee report against the duties is a five minute exercise with a checklist.

1. Does the report identify every designated heritage asset affected, including those affected only through setting
2. Does it describe the significance of each, rather than only its designation
3. Does it reach a clear finding on whether harm arises, and if so where on the spectrum
4. Does it state that considerable importance and weight has been given to the desirability of preserving the asset, or words to that effect
5. Does it identify the public benefits specifically, rather than referring to benefits in general terms
6. Does it carry out the balance explicitly, with a conclusion that follows from it

Where any of those is missing, say so in writing before the committee meets, and frame it as a failure to carry out the statutory duty rather than as disagreement with the planning judgement. Committees are advised by legal officers who understand the difference.

The same checklist works in reverse when you are preparing a submission. A Heritage Statement structured to answer those six questions in order gives the officer the material to write a lawful report, and it makes the application easier to recommend.

Using the duties at appeal, and their limits

At appeal the duties are most useful where the council's decision shows the balance being carried out without the weighting step, or where harm was found to an asset that the decision then treated as a neutral factor.

They are least useful where the dispute is really about whether harm arises at all, since that is a matter of planning judgement on which an inspector's conclusion is hard to disturb. Put the effort into the evidence of significance and effect rather than into the legal framework.

Three limits are worth stating plainly. The duties apply to designated assets, so non-designated heritage assets are dealt with under national policy alone, which requires a balanced judgement having regard to the scale of harm and the significance of the asset. The section 72 duty applies to development in a conservation area rather than to development affecting its setting from outside. And neither duty assists where the harm alleged is to an asset whose significance has not been evidenced, which is why shopfront work in conservation areas and similar small-scale cases turn on appraisal evidence rather than on statute.

For assets with international designation the framework layers further still, and World Heritage Site buffer zones bring in additional policy tests. Where works have already happened, the position changes completely, because unauthorised works to a listed building are a criminal matter rather than a planning balance.

Enter your postcode on PlanScope to see which reports a heritage-constrained site is likely to need.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.