0
This article by Kate Olley was originally published by The Planner on 21st May 2021. By the standards of planning decisions, this one rather exploded on impact. The bells cast at Whitechapel have been described as “the voices of nations”, marking the world’s “celebrations and sorrows” and representing “principles of emancipation, freedom of expression and justice” and therefore some of the most important intangible cultural heritage in Britain. With the secretary of state having accepted the inspector’s recommendation that permission be granted for a scheme including a boutique hotel, campaign group Save The Whitechapel Bell Foundry considers this the death knell for any future for the building as a fully working foundry, even given the plan for the public to watch the casting of hand bells in a mini foundry behind a glass screen; that was castigated by those acting for objector Re-Form as “about as much use as a chocolate teapot”. Perhaps the former owner is correct: “The foundry was the people. And that has gone. The decision has been widely reported and there have been outcries in various quarters asking what went wrong and why the foundry has not been protected. The effectiveness and impartiality of Historic England has been called into question, described by Charles Saumarez Smith as 'conspicuously supine.' The case underlines the importance of being able to fully demonstrate the viability of any alternative case: having fought and won the right to an in-person inquiry, which was in the event conducted virtually, Re-Form’s rival plan to return the foundry to active use went down in flames, dismissed as 'well-intentioned' by the inspector who referred to its 'mere presence' and found no firm financial footing for it. Curiously, given that it was an application determined by his own minister, the case has also caused the secretary of state to announce that there will be a review of 'how the Planning Inspectorate and planning policy considers and defends heritage.' The implications of this are unclear, given that the inspector simply applied the law and policy as he saw them to be. The main point of contention seems to be the vexed issue of whether it is correct to apply an approach of ‘netting off’ heritage harm before weighing all benefits and harms in the overall planning balance. The Court of Appeal in Bramshill recently addressed the appropriate approach to the assessment of benefits and harms to heritage assets. There has been a struggle played out at planning inquiries between two competing approaches: one, following the Court of Appeal in Palmer, endorses carrying out an ‘internal’ heritage balance, in other words balancing first the identified heritage harms and benefits against each other, to see whether any net harm results, and if so only then proceeding to apply NPPF 195 or 196, as the case may be, depending on whether that net harm would be ‘substantial’ or ‘less than substantial’. Thus if net harm resulted, then the other public benefits of the scheme would be weighed against that harm to see how they balanced against each other. If not, those provisions would have no utility. This bumped up against the requirement in the NPPF for the decision-maker to give 'great weight' to an asset’s conservation and for there to be clear and convincing justification for 'any' heritage harm. With the Court’s decision in Bramshill, the Palmer approach has now been effectively discredited, though not outlawed; the Court said that doing a self-contained or ‘internal’ balancing of heritage harms and benefits is not stipulated or implied by the statutory provisions and nor was there any justification for reading that into NPPF policy. Importantly however, the Court also remarked that it was hard to see how the ‘internal balance’ approach could ever make a difference to the ultimate outcome. And while there isn’t any one prescribed correct approach to balancing harm against benefits in a heritage case, if the approach in NPPF 193-196 was followed then the decision-maker would not go far wrong. It is interesting then that the secretary of state has agreed with the inspector that 'the approach of an internal heritage balance is a perfectly legitimate one' and that, there being no residual harm found on that basis, there was no need to consider NPPF 196. That does not accord with the effect of Bramshill, and the inspector preferred Palmer expressly on the basis that it was at the time the higher court authority. By the time of the secretary of state’s own decision, the Court of Appeal’s decision in Bramshill had arrived. However, the inspector was careful 'in recognition of the lack of certainty in this area' to do the exercise by the other route as well, and on that basis found some less than substantial harm only at the lower end of the scale, which was then outweighed by the heritage and other public benefits for the purposes of NPPF 196. The secretary of state agreed, in line with that, that the harmful elements were outweighed 'whichever route is taken'.
