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Section 12 – Conserving and enhancing the historic environment

NPPF 126-141


Forest of Dean District Council v SSCLG
[2013] EWHC 4052 (Admin), Lindblom J

Lisa Busch appeared for the Secretary of State

There is no conflict between the statutory duty in s.66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and government policy regarding listed buildings as set out in the NPPF. [48]


North Norfolk District Council v SSCLG
[2014] EWHC 279 (Admin), Robin Purchas QC

Daniel Kolinsky appeared for the Secretary of State

I would respectfully agree with Mr Justice Lindblom [in Forest of Dean District Council v SSCLG, [2013] EWHC 4052 (Admin)] that, taken as a whole, the advice in the NPPF is consistent with [the correct approach to s.66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990)], having regard in particular to paragraphs 131 and 132 where it advises that great weight should be given to the conservation of a designated heritage asset and that clear and convincing justification should be required for any harm or loss. It is correct that Section 66(1) applies the presumptive desirability directly to the setting of a listed building, while in the NPPF the advice is directed to the significance of the asset itself. For present purposes that distinction is not of any significance. However it remains essential that in applying the subsequent advice in paragraph 134, which is expressed in terms of a balance rather than expressly referring to issues of weight and significance, the approach of the decision maker is consistent with the statutory obligation under Section 66(1). Thus the question should not be addressed as a simple balancing exercise but whether there is justification for overriding the presumption in favour of preservation.

However, following the simple balancing exercise under NPPF 134 does not mean that a decision-maker will ipso facto comply with the duties under s.66(1): [83]. It is necessary for a decision-maker to direct their mind to s.66(1): [85].


R (Perry) v LB Hackney
[2014] EWHC 3499 (Admin), Patterson J

Philip Coppel QC, Alex Goodman and Richard Clarke appeared for the Claimant

Reuben Taylor QC appeared for the First Interested Party

“(1) the NPPF taken as a whole is consistent with the statutory duty in section 66(1) and 72(1) of the Listed Buildings Act; and (2) that the question to be addressed by a decision maker is not a simple balancing exercise but is one which is mindful of and applies the need to have “special regard” or “special attention” to the heritage assets whether under section 66(1) or 72(1). The requirement under section 70(2) of the TCPA to have regard to material considerations when granting planning permission is expressly subject to the section 66(1) and section 72(1) duty.” [120]


Colman v SSCLG
[2013] EWHC 1138 (Admin), Kenneth Parker J

Zack Simons appeared as junior counsel for the Claimant

John Litton QC appeared for the Third Defendant

By contrast to some restrictive relevant development plan policies, “the NPPF takes a far more balanced approach, allowing an analysis of the significance or, where appropriate, of the substantiality of harm to the identified cultural interests, and a weighing of the identified harm against the actual benefits that could be expected to result from the benefits.” [31]

Benefits to a proposal as material considerations does not render more restrictive policies consistent with the NPPF [31].


Holland v Secretary of State for Communities and Local Government
[2014] EWHC 566 (Admin), Lang J

Where a Council identifies a building as a non-designated heritage asset, a planning inspector is required to treat it as such. [24]

R (Hughes) v South Lakeland District Council [2014] EWHC 3979 (Admin), HHJ Waksman

It is clear that the first part of paragraph 132 seeks to express the s72 (1) presumption. The remaining provisions then give guidance on how it may be applied in a case involving a heritage asset. So if there would be substantial harm to a listed building permission would have to be either exceptional or wholly exceptional. See the second part of paragraph 132. If there was to be substantial harm to a non-listed heritage asset, then consent should be refused unless that harm was necessary to achieve substantial public benefits or the particular matters set out in [a] to [d] apply. See paragraph 133. Finally if the harm is less than substantial it must be weighed against the public benefits including its optimum viable use. See paragraph 134.” [52]


R (Williams) v Powys CC
[2017] EWCA Civ 427, Lindblom and Irwin LJJ

“I would not wish to lay down some universal principle for ascertaining the extent of the setting of a listed building. And in my view it would be impossible to do so. Clearly, however, if a proposed development is to affect the setting of a listed building there must be a distinct visual relationship of some kind between the two – a visual relationship which is more than remote or ephemeral, and which in some way bears on one's experience of the listed building in its surrounding landscape or townscape. This will often require the site of the proposed development and the listed building to be reasonably close to each other, but that will not be so in every case. Physical proximity is not always essential. This case illustrates the possible relevance of mutual visibility – or "intervisibility", as the judge described it – and also of more distant views from places in which the listed building and the proposed development can be seen together – "co-visibility", as it was described in submissions before us. But this does not mean that the mere possibility of seeing both listed building and development at the same time establishes that the development will affect the setting of the listed building.” [56] (Lindblom LJ)

 

Steer [2017] EWHC 1456 (Admin), Lang J

Jacqueline Lean appeared for the Secretary of State

Rupert Warren QC appeared for the Second Defendant

“In my judgment, although the Inspector set out the NPPF definition of setting at AD 31, he 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 (see the extracts from the NPPF, the PPG, and HE's 'Good Practice Advice', set out above). 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.” [64]

 

NPPF 128


Obar Camden Ltd v LB Camden
[2015] EWHC 2475 (Admin), Stewart J

“NPPF 128 … required the applicant to describe the significance of any heritage assets affected including any contribution made by their setting. Nowhere in the OR is there an assessment of the significance of the heritage assets. It is submitted by C that it is not possible to come to a conclusion about harm until an assessment has been made of the significance of the asset affected. Nor were members told that section 12 NPPF (particularly at paragraph 128) required the applicant to describe the significance of heritage assets affected. D accepted that the process had been “truncated” but again emphasised that officers had come to the conclusion that there was no harm and that the Committee were experienced. One wonders in those circumstances why there is the requirement in … NPPF paragraph 128 as stated above.”

 

NPPF 128-129

Martin [2015] EWHC 3435 (Admin), Lindblom LJ

Charles Banner appeared for the Secretary of State

“Neither the policy in paragraphs 128 and 129 of the NPPF nor any of the relevant guidance issued by the Government and English Heritage stipulates the form in which information about heritage assets is to be provided to the decision-maker, or how much information will be needed, in a particular case (see paragraphs 7 to 11 and 22 above). The policy in paragraphs 128 and 129 of the NPPF is in general terms. Its tenor is pragmatic, not prescriptive. It indicates what authorities “should” do when determining applications for planning permission, and, therefore, what the Secretary of State or an inspector should do when deciding an appeal. Of course, the applicant for planning permission is expected to co-operate. But there is a note of caution in the second sentence of paragraph 128, discouraging the decision-maker from seeking any more detail than is truly needed to gain an understanding of the possible effects of the development on the significance of heritage assets. The minimum requirements are that the “relevant historic environment record should have been consulted” and “the heritage assets assessed using appropriate expertise where necessary”. Paragraph 129 of the NPPF requires the decision-maker to take account of “the available evidence and necessary expertise” when considering the likely impact on a heritage asset. Both the policy in the NPPF and the relevant guidance allow decision-makers a wide discretion in the approach they take, in each individual case, to assessing the particular significance of a heritage asset whose setting may be affected by the development proposed, and any impact the development might have.

Four points may be made here. First, for a decision-maker, having enough information about the heritage assets that may be affected by a proposed development is never an end in itself. It is only a means to the end of making a good decision on the planning merits. Secondly, if the applicant for planning permission fails to provide enough information himself, the local planning authority – or, on appeal, the Secretary of State – may still be able to gain a full enough picture from all the relevant material to be able to make a decision on the merits. Thirdly, the risk for an applicant in providing less than the decision-maker regards as sufficient is a refusal of planning permission. And fourthly, as Mr Banner submitted, the amount of information the decision-maker may regard as sufficient is liable to vary a good deal from one case to the next.” [59]-[60]

 

NPPF 131

 

Lyndon-Stanford QC v Mid Suffolk District Council [2016] EWHC 3284 (Admin), John Howell QC

Richard Turney appeared for the Claimant

The recognition in the NPPF of “the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation” reflects s.66(1) of the Listed Buildings Act 1990.


NPPF 132


Bedford Borough Council v Secretary of State for Communities and Local Government
[2013] EWHC 2847 (Admin), Jay J

The final sentence of NPPF 132 does not impose a freestanding test. [29]

“paragraphs 131 to 134 are not purporting to quantify harm or explain what is meant by the adjective “substantial”. [19]


R (Forge Field Society) v Sevenoaks District Council
[2014] EWHC 1895 (Admin), Lindblom J

Harm to a heritage asset has significance not only due to the NPPF, but from the Listed Buildings Act. “Once he had found that there would be some harm to the setting of the listed building and some harm to the conservation area, the officer was obliged to give that harm considerable importance and weight in the planning balance.” [55]


R (Lady Hart of Chiltern) v Babergh District Council
[2014] EWHC 3261 (Admin), Sales J

“The NPPF creates a strong presumption against the grant of planning permission for development which will harm heritage assets, requiring particularly strong countervailing factors to be identified before it can be treated as overridden” [14]


R (Pugh) v Secretary of State for Communities and Local Government
[2015] EWHC 3 (Admin), Gilbart J

“Mr Harwood points out that paragraph 132 uses the phrase “clear and convincing justification.” It might be thought difficult to be convincing without being clear, but it seems to me that the author of NPPF is saying no more than that if harm would be caused, then the case must be made for permitting the development in question, and that the sequential test in paragraphs 132-4 sets out how that is to be done. So there must be adherence to the approach set out, which is designed to afford importance in the balance to designated heritage assets according to the degree of harm. If that is done with clarity then the test is passed, and approval following paragraph 134 is justified.”

 

R (Austin) v Wiltshire Council [2017] EWHC 38 (Admin), Hickinbottom J

Toby Fisher appeared for the Defendant

“[Section 66(1) of the Listed Buildings Act 1990] is reflected in paragraph 132 of the NPPF which refers to the asset's conservation being given "great weight."” [42]


NPPF 133

Whitby v Secretary of State for Transport [2016] EWCA Civ 444, Simon, Lindblom and Hamblen LJJ

Richard Drabble QC and Andrew Parkinson appeared for the Appellant

Nathalie Lieven QC and Richard Clarke appeared for Network Rail

“46 The conclusions in paragraph 633 are directed to Mr Whitby's contention that the harm the proposed works would cause to heritage assets was not “necessary”, in the sense of paragraph 133 of the NPPF, because Option 15 was a “reasonable alternative” and Network Rail had not proved the contrary. As he said, the judgment he had to make here was “not a straightforward balance of harm to Middlewood Locks against the substantial benefits of an Ordsall Chord, which might be the case if Option 15 were before the Secretaries of State”. This was right. Option 15 was not the order scheme, and the balance the inspector and the Secretaries of State had to strike was not, therefore, simply a balance between the benefit and harm of “an Ordsall Chord” on the alignment in that alternative. The inspector's remark that Option 15 was “not before the Secretaries of State because the promoters have rejected it” was also true as a matter of fact. It does not show that he was downplaying the merits of Option 15 in considering whether it enabled him to conclude, under the policy in paragraph 133 of the NPPF, that “the substantial harm” the proposed works would cause to heritage assets was “necessary to achieve substantial public benefits that outweigh that harm …”. Far from it, in paragraph 646 he expressly accepted that Mr Whitby's masterplan “should not be assessed as if it were being put forward now for planning permission …”. 

47 As the inspector said at the end of paragraph 633, the issue for him and the Secretaries of State was whether Option 15 would provide a “reasonable alternative” to the order scheme, and would be on an “appropriate alternative site”. The paragraph references given at the end of paragraph 633 relate to the inspector's summary of Mr Whitby's case on the policy in paragraph 133 of the NPPF and the guidance in paragraph 91 of the PPS5 Practice Guide, and Network Rail's response to English Heritage's objection in the same context. The inspector's reference to a “reasonable” alternative to the order scheme and to “an appropriate alternative site” corresponds to the guidance in paragraph 91 of the PPS5 Practice Guide. He was faithfully applying the guidance, which amplifies the policy in paragraph 133 of the NPPF, that “[for] the loss to be necessary there will be no other reasonable means of delivering similar public benefits, for example through different design or development of an appropriate alternative site ” (my emphasis). As Ms Lieven submitted, he was not simply undertaking a conventional comparison between alternative sites or schemes, without heed to the relevant statutory imperatives for decision-makers in sections 16(2), 66(1) and 72(1) of the Listed Buildings Act , and the relevant national policy and guidance. On the contrary, he was doing exactly what statute requires of a decision-maker in a case of substantial harm to the significance of designated heritage assets, including substantial harm to grade I listed buildings, and exactly what the decision-maker is enjoined to do by government policy in the NPPF and by the PPS5 Practice Guide. Once this is recognized, the main thrust of Mr Drabble's argument falls away.  

48 I see no error in the approach described by the inspector in paragraph 634 of his report. Five things may be said about that paragraph. First, the inspector's comment that the judgment to be made was “not merely a comparison of the heritage impacts of the two alternatives” was not inconsistent either with NPPF policy or with the PPS5 Practice Guide. The same may also be said of his observation that “it does not follow that substantial harm to heritage assets on an application site should necessarily justify substantial harm to other interests on an alternative site”. Secondly, it was not wrong to say, as he did, that “[the] test is one of reasonableness”. This again was clearly a reference to the guidance in paragraph 91 of the PPS5 Practice Guide, where the concept of necessity is described in terms of there being “no other reasonable means of delivering similar public benefits” (my emphasis). And in the next sentence the inspector referred to “[the] relevant PPS5 guidance” relating “specifically to cases of substantial harm or total loss of significance”. Thirdly, as I have said, he directed himself to the relevant part of the policy in paragraph 132 of the NPPF, which refers to substantial harm to heritage assets of the highest significance being “wholly exceptional”. And he said that the “the necessity for such harm must be rigorously tested”, which is clearly a reference to the policy in paragraph 133. Fourthly, he quoted the relevant passage of Sullivan L.J.'s judgment in Barnwell Manor (in paragraph 28), where Sullivan L.J. referred to the section 66(1) duty applying “with particular force if harm would be caused to the setting of a Grade I listed building, a designated heritage asset of the highest significance”. And fifthly, he noted that “an exceptional degree of justification” is not a test to be found in the NPPF or the PPS5 Practice Guide. All of this was impeccable.” [46-48]



NPPF 134


R (Hughes) v South Lakeland District Council
[2014] EWHC 3979 (Admin), HHJ Waksman

“…in a paragraph 134 case, the fact of harm to a heritage asset is still to be given more weight than if it were simply a factor to be taken into account along with all other material considerations, and paragraph 134 needs to be read in that way. By way of contrast, where non-designated heritage assets are being considered, the potential harm should simply be “taken into account” in a “balanced judgment” - see paragraph 135. It follows that paragraph 134 is something of a trap for the unwary if read - and applied - in isolation.” [53]

 

R (Pugh) v Secretary of State for Communities and Local Government [2015] EWHC 3 (Admin), Gilbart J

“Like Judge Waksman QC in Hughes v South Lakeland , in my view paragraph 134 of NPPF can be a trap for the unwary if taken out of context. I agree with his approach that the significance of a heritage asset still carries weight at the balancing stage required by paragraph 134, and to the extent that Kenneth Parker J in Colman v Secretary of State for Communities and Local Government & Ors [2013] EWHC 1138 and Jay J in Bedford Borough Council v SSCLG [2013] EWHC 2854 suggest otherwise, I prefer the approach of Judge Waksman QC. Thus, the value and significance of the asset, whatever it may be, will still be placed on one side of the balance. The process of determining the degree of harm, which underlies paragraph 132 of NPPF, must itself involve taking into account the value of the heritage asset in question. That is exactly the approach that informed the Addendum Assessment upon which Mr Harwood relies. The later assessment also addressed the value of the asset, and then the effect of the proposal on that value. Not all effects are of the same degree, nor are all heritage assets of comparable significance, and the decision maker must assess the actual significance of the asset and the actual effects upon it.

But one must not take it too far so that one rewrites NPPF. It provides a sequential approach to this issue. Paragraphs 126-134 are not to be read in isolation from one another. There is a sequential approach in paragraphs 132 -4 which addresses the significance in planning terms of the effects of proposals on designated heritage assets. If, having addressed all the relevant considerations about value, significance and the nature of the harm, and one has then reached the point of concluding that the level of harm is less than substantial, then one must use the test in paragraph 134. It is an integral part of the NPPF sequential approach. Following it does not deprive the considerations of the value and significance of the heritage asset of weight: indeed it requires consideration of them at the appropriate stage. But what one is not required to do is to apply some different test at the final stage than that of the balance set out in paragraph 134. How one strikes the balance, or what weight one gives the benefits on the one side and the harm on the other, is a matter for the decision maker. Unless one gives reasons for departing from the policy, one cannot set it aside and prefer using some different test.” [49-50]

 

R (Nicholson) v Allerdale BC [2015] EWHC 2510 (Admin), Holgate J

Dan Kolinsky QC appeared for the Claimant

James Maurici QC appeared for the Interested Party

“As to the second point, the application of paragraph 134 of the NPPF, Mr Kolinsky QC submitted that the Council had failed to consider how the benefits of the scheme could be achieved without causing harm to the setting of the listed building or with only a lesser degree of harm. I will assume in the claimant's favour, without deciding, that that is a correct understanding of paragraph 134. The short answer is that the point was properly addressed in the officer's report.” [50]


Jones v Mordue
[2016] 1 P&CR 12, Richards, Floyd and Sales LJJ

Alistair Mills appeared for the Appellant Developer

“Paragraph 134 of the NPPF appears as part of a fasciculus of paragraphs, set out above, which lay down an approach which corresponds with the duty in s.66(1) . Generally, a decision-maker who works through those paragraphs in accordance with their terms will have complied with the s.66(1) duty. When an expert planning inspector refers to a paragraph within that grouping of provisions (as the Inspector referred to para.134 of the NPPF in the Decision Letter in this case) then—absent some positive contrary indication in other parts of the text of his reasons—the appropriate inference is that he has taken properly into account all those provisions, not that he has forgotten about all the other paragraphs apart from the specific one he has mentioned. Working through these paragraphs, a decision-maker who had properly directed himself by reference to them would indeed have arrived at the conclusion that the case fell within para.134, as the Inspector did.” [28]

 

Forest of Dean District Council [2016] EWHC 421 (Admin), Coulson J

Gwion Lewis appeared for the Secretary of State

David Elvin QC appeared as senior counsel for the Second Defendant

“Paragraph 134 provides for a balancing exercise to be undertaken, between the “less than substantial harm” to the designated heritage asset, on the one hand, and the public benefits of the proposal, on the other. The presumption in favour of development is not referred to and does not apply. Paragraph 134 is thus a particular policy restricting development. Limb 2 of paragraph 14 applies.” [26]

“Further or in the alternative to his submission that paragraph 134 was not a policy indicating that development should be restricted, Mr Elvin argued that the balancing exercise in paragraph 134 was not an ordinary one. Instead, he said, the weighted balancing exercise envisaged in Limb 1 (that is to say, that the adverse effects of permission would “significantly and demonstrably outweigh the benefits”) should be imported - or as he put it, ‘read across’ - into paragraph 134. He submitted that there was no difficulty with interpreting paragraph 134 as importing that weighted test: indeed, he said, that was in accordance with the NPPF and the presumption in favour of development and the granting of planning permission.

I do not accept that submission. It seems to me that it is wholly inconsistent with the words of paragraph 134 itself, which make plain that the balancing exercise is of a standard type, without any weighting. There is no reason to import the weighted test from Limb 1 of the last bullet point of paragraph 14 into paragraph 134, when the words of paragraph 134 can be read entirely satisfactorily without them. Reading across in this way would be unnecessary and over-complicated. Moreover, without any signpost of any sort, it would be unwarranted. It would be contrary to the natural meaning of the words used.

Accordingly, I do not accept that the balancing exercise envisaged in paragraph 134 is anything other than the ordinary (unweighted) test described by its wording. I do not consider that the test in Limb 1 can or should be read across in the way submitted.” [33]-[35]

“It is plain that the inspector in this case was aware of the considerable weight and importance to be given to the desirability of preserving the setting of the Mantley House Farm complex …. But I consider that the appropriate place for that considerable weight to be applied was as part of the ordinary balancing exercise under paragraph 134 of the NPPF. Because the inspector did not undertake the ordinary balancing exercise required by paragraph 134, it follows that the considerable weight to be given to the preservation of listed buildings, let alone the presumption against granting permission in such situations, has been at best diluted, and at worst, lost altogether.” [39]

 

R (Leckhampton Green Land Action Group Ltd) v Tewkesbury BC [2017] EWHC 198 (Admin), Holgate J

“During the hearing it appeared to be suggested that there are passages in the judgment of Coulson J [in Forest of Dean] which might be taken to suggest that the balancing exercise required by paragraph 134 of the NPPF is “an ordinary unweighted balance” (see eg. paragraphs 34 to 37). The headnote has certainly taken that view ( [2016] PTSR 1032 C–D ). But that would be to take this part of his judgment out of context. The headnote is inaccurate in this respect. Coulson J was simply responding to, and rejecting, a submission for the developer in that case that the weighted test, or tilted balance, in favour of sustainable development should be read across, or incorporated into, the application of paragraph 134 of the NPPF (see paragraph 33 of the judgment). I agree with Coulson J's conclusion rejecting that point.  

It is plain from the East Northants decision and Mordue that paragraph 134 of the NPPF does not involve an unweighted, normal balancing exercise. It is true that when paragraph 134 of the NPPF is being applied in order to see whether (under the second exception) the presumption in favour of sustainable development is disapplied, the tilted balance in favour of such development (used in the first exception) is not incorporated with paragraph 134. But the decisions of the Court of Appeal, particularly in Mordue , go further. They make it plain that the balancing exercise required by paragraph 134 is to give effect to the presumption against granting permission for development which harms the setting of a listed building. Under paragraph 134 there is a tilt in favour of the preservation of that setting. How much weight to give to the harm to the setting of a listed building and to that tilt is, of course, a matter for the decision-maker. But where a proposal would result in harm to the setting of a listed building, the “Barnwell Manor” tilt in section 66(1) (and in the NPPF — see for example paragraph 134), leans in the opposite direction to the presumption in paragraph 14 of the NPPF in favour of the grant of planning permission. Paragraphs 38 to 41 of Coulson J's judgment in Forest of Dean accord with this analysis.” [48]-[49]



NPPF 138


R (East Meon Forge and Cricket Ground Protection Association (acting by its Chairman George Bartlett) v East Hampshire District Council
[2014] EWHC 3543 (Admin), Lang J

David Forsdick QC appeared for the Council

“It seems to me that Mr Forsdick is correct in submitting that paragraph 138 only applies where there is a loss of a building or other element. Throughout section 12, it is clear that ‘harm’ and ‘loss' are different concepts. Although the development may harm the character and appearance of The Forge, there is no suggestion that it will be lost. However, I am unclear why the principle expressed in paragraph 138 should be confined to cases of loss, and so I am uncertain about the intended scope of this paragraph.” [50]


R (Irving) v Mid-Sussex District Council
[2016] EWHC 1529 (Admin), Gilbart J

Robert Walton appeared for the Defendant

“If there is harm to the character and appearance of one part of the Conservation Area, the fact that the whole will still have a special character does not overcome the fact of that harm. It follows that the character and appearance will be harmed. While I accept that the question of the extent of the harm is relevant to consideration of its effects, it cannot be right that harm to one part of a Conservation Area does not amount to harm for the purposes of considering the duty under s 72 PLBCAA 1990.

 

NPPF 141

 

R (Hayes) v York City Council [2017] EWHC 1374 (Admin), Kerr J

“In my judgment, the last sentence of that paragraph only makes good sense if interpreted so that the words "should not be a factor" are taken to bear the meaning "should not be a decisive factor", in deciding whether the harm to the asset should be permitted.” [81]