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Conserving and enhancing the historic environment

Safe Rottingdean Ltd v Brighton and Hove City Council [2019] EWHC 2632 (Admin), Sir Duncan Ouseley
Andrew Parkinson appeared for the Claimant
Jacqueline Lean appeared for the Defendant
Richard Turney appeared as Junior Counsel for the First Interested Party

“97.  The Framework Glossary in Annex 2, defines a heritage asset in broad terms, going somewhat beyond statutorily listed buildings or designated conservation areas. They include a building, site, place, area or landscape identified as having “a degree of significance meriting consideration in planning decisions, because of its heritage interest.” It includes locally listed assets, and others designated by authority. The setting is defined as: “The surroundings in which a heritage asset is experienced.” This may change; elements of the setting may make a positive or negative contribution to the significance of the asset. The Glossary also defined “Significance (for heritage policy)” as “The value of a heritage asset to this and future generations because of its heritage interest… Significance derives not only from the heritage asset’s physical presence, but also from its setting….”

 

City & Country Bramshill Ltd [2021] EWCA Civ 320, Sir Keith Lindblom, Senior President of Tribunals, Phillips and Arnold LJJ
Guy Williams and Alistair Mills appeared for the Secretary of State

“69.  Before the judge, City & Country Bramshill argued that the inspector had erred in failing to carry out a “net” or “internal” heritage balance. Only if “overall harm” emerges from the weighing of “heritage harms” against “heritage benefits” must the “other public benefits” of the development be weighed against that “overall harm” under the policy in paragraph 196 of the NPPF. Support for this submission was to be found in paragraph 29 of the judgment of Lewison L.J. in Palmer [v Herefordshire Council [2017] 1 WLR 411]. The inspector should have given “great weight” to the “heritage benefits”, to reflect the “great weight” that paragraph 193 of the NPPF requires to be given to the “conservation” of a designated heritage asset. This argument, however, did not impress Waksman J.. In his view, the decision in Palmer “did not impel [the inspector] to undertake an internal initial balancing exercise under paragraph 193”. Indeed, he “would have regarded that as an error of law” (paragraph 120 of the judgment). The balancing exercise itself was “a classic application of planning judgment” (paragraph 121).

  1. Mr Strachan repeated the same argument before us. Relying on the first instance decision in Safe Rottingdean v Brighton and Hove City Council [2019] EWHC 2632 (Admin) , he submitted that the Palmer “principle” applies both to the statutory obligation in section 66(1) and to relevant policies in the NPPF and the development plan. The inspector failed to see this. Paragraph 193 of the NPPF required “great weight” to be given to the “conservation” of a heritage asset, including enhancement of its significance. Paragraph 196 required the likely effect on the significance of the heritage asset to be assessed, which could only be done by weighing any harm to that significance against any benefits to it. If there was no “net harm”, the policy in paragraph 196 was not engaged. The definition of “Conservation (for heritage policy)” in the NPPF did not exclude “countervailing benefits”. It implied that “great weight” must attach both to any harm to the significance of the heritage asset and to any enhancement of it – such as the appeal proposals would achieve. The judge was wrong (in paragraph 112 of his judgment) to distinguish Palmer on the basis that the “principle” relates not to “separate benefits” but only to “mitigation measures to negate the adverse effects which would otherwise arise”. The “principle” in Palmer extends to cases in which there are separate elements of harm and benefit to the significance of a heritage asset.
  2. Like the judge, I cannot accept those submissions. It is not stipulated, or implied, in section 66(1), or suggested in the relevant case law, that a decision-maker must undertake a “net” or “internal” balance of heritage-related benefits and harm as a self-contained exercise preceding a wider assessment of the kind envisaged in paragraph 196 of the NPPF. Nor is there any justification for reading such a requirement into NPPF policy. The separate balancing exercise for which Mr Strachan contended may have been an exercise the inspector could have chosen to undertake when performing the section 66(1) duty and complying with the corresponding policies of the NPPF, but it was not required as a matter of law. And I cannot see how this approach could ever make a difference to the ultimate outcome of an application or appeal.
  3. Section 66 does not state how the decision-maker must go about discharging the duty to “have special regard to the desirability of preserving the building or its setting …”. The courts have considered the nature of that duty and the parallel duty for conservation areas in section 72 of the Listed Buildings Act, and the concept of giving “considerable importance and weight” to any finding of likely harm to a listed building and its setting. They have not prescribed any single, correct approach to the balancing of such harm against any likely benefits – or other material considerations weighing in favour of a proposal. But in Jones v Mordue this court accepted that if the approach in paragraphs 193 to 196 of the NPPF (as published in 2018 and 2019) is followed, the section 66(1) duty is likely to be properly performed.
  4. As was submitted by Mr Williams, and by Mr Ben Du Feu for Historic England and Ms Melissa Murphy for the National Trust, one does not find any support for Mr Strachan’s argument in those paragraphs of the NPPF. The concept in paragraph 193 – that “great weight” should be given to the “conservation” of the “designated heritage asset”, and that “the more important the asset the greater the weight should be” – does not predetermine the appropriate amount of weight to be given to the “conservation” of the heritage asset in a particular case. Resolving that question is left to the decision-maker as a matter of planning judgment on the facts of the case, bearing in mind the relevant case law, including Sullivan L.J.’s observations about “considerable importance and weight” in Barnwell Manor.
  5. The same can be said of the policies in paragraphs 195 and 196 of the NPPF, which refer to the concepts of “substantial harm” and “less than substantial harm” to a “designated heritage asset”. What amounts to “substantial harm” or “less than substantial harm” in a particular case will always depend on the circumstances. Whether there will be such “harm”, and, if so, whether it will be “substantial”, are matters of fact and planning judgment. The NPPF does not direct the decision-maker to adopt any specific approach to identifying “harm” or gauging its extent. It distinguishes the approach required in cases of “substantial harm … (or total loss of significance …)” (paragraph 195) from that required in cases of “less than substantial harm” (paragraph 196). But the decision-maker is not told how to assess what the “harm” to the heritage asset will be, or what should be taken into account in that exercise or excluded. The policy is in general terms. There is no one approach, suitable for every proposal affecting a “designated heritage asset” or its setting.
  6. This understanding of the policies in paragraphs 193, 195 and 196 reflects what Lewison L.J. said in Palmer (at paragraph 5) – that the imperative of giving “considerable weight” to harm to the setting of a listed building does not mean that the weight to be given to the desirability of preserving it or its setting is “uniform”. That will depend on the “extent of the assessed harm and the heritage value of the asset in question”. These are questions for the decision-maker, heeding the basic principles in the case law.
  7. Identifying and assessing any “benefits” to weigh against harm to a heritage asset are also matters for the decision-maker. Paragraph 195 refers to the concept of “substantial public benefits” outweighing “substantial harm” or “total loss of significance”; paragraph 196 to “less than substantial harm” being weighed against “the public benefits of the proposal”. What amounts to a relevant “public benefit” in a particular case is, again, a matter for the decision-maker. So is the weight to be given to such benefits as material considerations. The Government did not enlarge on this concept in the NPPF, though in paragraph 196 it gave the example of a proposal “securing [the heritage asset’s] optimum viable use”.
  8. Plainly, however, a potentially relevant “public benefit”, which either on its own or with others might be decisive in the balance, can include a heritage-related benefit as well as one that has nothing to do with heritage. As the inspector said (in paragraph 127 of the decision letter), the relevant guidance in the PPG applies a broad meaning to the concept of “public benefits”. While these “may include heritage benefits”, the guidance confirms that “all types of public benefits can be taken together and weighed against harm”.
  9. Cases will vary. There might, for example, be benefits to the heritage asset itself exceeding any adverse effects to it, so that there would be no “harm” of the kind envisaged in paragraph 196. There might be benefits to other heritage assets that would not prevent “harm” being sustained by the heritage asset in question but are enough to outweigh that “harm” when the balance is struck. And there might be planning benefits of a quite different kind, which have no implications for any heritage asset but are weighty enough to outbalance the harm to the heritage asset the decision-maker is dealing with.
  10. One must not forget that the balancing exercise under the policies in paragraphs 195 and 196 of the NPPF is not the whole decision-making process on an application for planning permission, only part of it. The whole process must be carried out within the parameters set by the statutory scheme, including those under section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) and section 70(2) of the 1990 Act , as well as the duty under section 66(1) of the Listed Buildings Act. In that broader balancing exercise, every element of harm and benefit must be given due weight by the decision-maker as material considerations, and the decision made in accordance with the development plan unless material considerations indicate otherwise (see City of Edinburgh Council v Secretary of State for Scotland [1997] 1 W.L.R. 1447 ).
  11. Within that statutory process, and under NPPF policy, the decision-maker must adopt a sensible approach to assessing likely harm to a listed building and weighing that harm against benefits. Lewison L.J. was not suggesting anything else in Palmer. He was not seeking to establish any principle. He was saying that, in circumstances such as he was considering, a decision-maker, having considered both “positive” and “negative” effects on a listed building and its setting, “may legitimately” find there would actually be no harm. He was not saying that a decision-maker must go about the balancing of harm, if harm is found, against benefits in any particular way. There is no “Palmer principle” of the kind suggested by Mr Strachan. The court was simply endorsing the pragmatic and lawful approach taken by the local planning authority in the circumstances of that case. An “internal” balancing exercise was appropriate because the apprehended “harm” could be avoided through the mitigation measures proposed, and there would be “no overall adverse effect on the listed building or its setting” (paragraph 29 of Lewison L.J.’s judgment).”

 

Kay [2020] EWHC 2292 (Admin), Dove J

“The clear focus of paragraphs 193-196, and the fulcrum or essential finding necessary to apply the policy contained in those paragraphs correctly, is an initial establishment of the extent and nature of the harm to the significance of a designated heritage asset as a consequence of what is proposed. At the stage of establishing the nature and extent of the harm to significance any beneficial impact on the significance of the heritage asset is left out of account. It is only after that level of harm has been fixed that any beneficial effect upon the building which, in accordance with the PPG would properly be considered to be a public benefit, is to be taken into account in assessing whether or not the overall balance to be struck in applying the policy, including any other public benefits, enables the conclusion to be reached that the proposals do not conflict with the policy.” [34]

 

NPPF 189

 

R (James Hall and Company Ltd) v City of Bradford MDC [2019] EWHC 2899 (Admin), HHJ Belcher

“58.  In the absence of the HER having been produced in evidence, or even any evidence from an officer as to what the HER comprises, I am left with Mr Robson telling me, on instructions, that the HER is simply a database. I have no information as to what is in that database and nothing from which I could properly make any judgment as to whether the failure to consult the HTR [sic] is of no consequence to the final decision. It follows that I could not properly conclude that it is highly likely that the outcome for the Claimant would not have been substantially different if the HER had been consulted.” [58]

 

R (Kinsey) v LB Lewisham [2021] EWHC 1286 (Admin), Lang J
Sasha White QC and Matthew Henderson appeared for the Interested Party

“86.  In this case, the balancing exercise was referred to on three occasions in the OR: at OR 319, OR 328-330, and OR 641 – 644. On a fair reading of the OR, taken as a whole, I conclude that the planning officer undertook an unweighted balancing exercise, weighing the “less than substantial harm” to heritage assets against the “significant” benefits of the proposed housing development. Unsurprisingly, the conclusion was that the harm was significantly outweighed by the benefits. As in [R (Liverpool Open and Green Spaces Community Interest Co) v Liverpool CC [2019] EWHC 55 (Admin)], the effect was to “play down the part of the exercise represented by [paragraph 193 and 194 of the Framework] and to tilt the balance towards emphasising the absence of substantial harm and the public benefits to be weighed on the other side of the balance” (per Kerr J. at [81]).”

“88.  A further flaw was that the OR did not disclose the SCO’s classifications of the level of harm within the category of “less than substantial harm”, and instead referred to “a degree of less than substantial harm”. The effect of those omissions was to downplay to Committee Members the level of heritage harm and the weight to be attached to it, as I found under Ground 2 (see paragraph 66 above).

89.  I would have reached that conclusion even in the absence of the guidance in the PPG that the extent of the harm within each category should be articulated, as it may vary. The PPG is only guidance, and not binding. However, where a planning officer decides to depart from national guidance, I consider that he should give reasons for doing so, especially if he is departing from the approach taken by the Council’s conservation expert. I do not consider that this part of the PPG ought to be treated with “considerable caution”, as suggested by Lieven J. in respect of a different part of the PPG in Solo Retail Limited v Torridge DC [2019] EWHC 489 (Admin).”

 

NPPF 196

 

London Borough of Tower Hamlets [2020] PTSR 111 (Admin), Kerr J
Matthew Reed QC and Matthew Fraser appeared for the Claimant/Appellant

“63.  I consider, after reflection, that the defendants are correct to rely, in the present context, on the Mansell decision [2019] PTSR 1452 as authority that planning benefits do not have to be certain to be material. The objective likelihood of a benefit being enjoyed in future must be relevant to weight, even short of certainty, a commodity as rare in planning as in other walks of life (death and taxes apart).

  1. This can be tested by supposing there had been a concrete proposal to develop the site. The council might have argued that the proposal was far fetched, would never happen, the developer was likely to become insolvent, and so forth. The council would, in that scenario, be asking the inspector to measure the objective likelihood of the claimed benefit being delivered. Conceptually, the position is no different where no actual proposal is yet on the table.
  2. The circumstantial evidence (of the market, the need for housing and so forth) is still logically probative of the objective likelihood of the benefit being delivered. There might be a draft proposal, or a half-complete draft proposal. If so, the inspector would have to evaluate them. Similarly, he was right to evaluate the probative force of the Turner scheme, indicative though it was, against market conditions and demand for housing of the type considered in it.
  3. To put the point another way, if the balance of good and harm can change post-demolition, for example by supervening ground contamination or a post-demolition planning application, I see no reason why the balance cannot also change post-demolition by the advent of an uncertain Mansell benefit, or by a change in the degree of likelihood (for example, by changes in the market or demand for housing) that it will accrue to the public.
  4. Viewed in that light, the issue seems to be essentially one of remoteness. It must, then, be an issue for factual evaluation by the inspector and for his planning judgment, controlled by the threshold of rationality. In the end, I accept the submission of Ms Kabir Sheikh that the inspector could have decided that the benefits were too remote, but he did not.
  5. I accept the defendants’ interpretation of the heritage provisions in the NPPF with a degree of hesitation. I am conscious that it is a liberal construction and not a strict pro-heritage construction such as the council is advocating. Nevertheless, on balance I think the defendants’ is the correct one, bearing in mind that the NPPF provisions are statements of policy not law and the language of the provisions is not restricted in the way the council contends.

 

Safe Rottingdean Ltd v Brighton and Hove City Council [2019] EWHC 2632 (Admin), Sir Duncan Ouseley
Andrew Parkinson appeared for the Claimant
Jacqueline Lean appeared for the Defendant
Richard Turney appeared as Junior Counsel for the First Interested Party

“Paragraph 196 contemplates the position where there is some but less then substantial harm to a heritage asset, whether listed building or conservation area. It does not look at the overall balance of advantage or disadvantage to the heritage asset at that stage. The weighing exercise then includes the advantage of “securing its optimum viable use” as a factor against which the less then substantial harm has to be weighed. That is a clear reference to the public policy advantage of bringing a listed building or part of conservation area into a viable long term use. Such public heritage benefits are clearly among those to be weighed against the less than substantial harm. So the Framework adopts its own approach but emphatically is not dependant on a view that the less than substantial harm is a net overall less than substantial harm.” [68]

 

R (James Hall and Company Ltd) v City of Bradford MDC [2019] EWHC 2899 (Admin), HHJ Belcher

“34.  In my judgment the three categories of harm recognised in the NPPF are clear. There is substantial harm, less than substantial harm and no harm. There are no other grades or categories of harm, and it is inevitable that each of the categories of substantial harm, and less than substantial harm will cover a broad range of harm. It will be a matter of planning judgement as to the point at which a particular degree of harm moves from substantial to less than substantial, but it is equally the case that there will be a number of types of harm that will fall into less than substantial, including harm which might otherwise be described as very much less than substantial. There is no intermediate bracket at the bottom end of the less than substantial category of harm for something which is limited, or even negligible, but nevertheless has a harmful impact. The fact that the harm may be limited or negligible will plainly go to the weight to be given to it as recognised in Paragraph 193 NPPF. However, in my judgment, minimal harm must fall to be considered within the category of less than substantial harm.” [34]

 

Kay [2020] EWHC 2292 (Admin), Dove J

“The starting point for the consideration of ground 1 is the question of what is required by paragraph 196 of the Framework and its correct interpretation. I have no doubt that the interpretation of paragraph 196 provided by Sir Duncan Ousley in Safe Rottingdean is correct. The clear focus of paragraphs 193-196, and the fulcrum or essential finding necessary to apply the policy contained in those paragraphs correctly, is an initial establishment of the extent and nature of the harm to the significance of a designated heritage asset as a consequence of what is proposed. At the stage of establishing the nature and extent of the harm to significance any beneficial impact on the significance of the heritage asset is left out of account. It is only after that level of harm has been fixed that any beneficial effect upon the building which, in accordance with the PPG would properly be considered to be a public benefit, is to be taken into account in assessing whether or not the overall balance to be struck in applying the policy, including any other public benefits, enables the conclusion to be reached that the proposals do not conflict with the policy.” [34]

“When reading paragraphs 9 to 13 together in my view it appears the Inspector is forming a judgment in relation to the proposed development as a whole, aggregating his analysis of the elements of which it was comprised and forming an overall judgment about the totality of the development. In paragraphs 12 and 13 he draws together an assessment of the impact of the proposals on the listed building as a whole and then applies the relevant policy in paragraph 196 of the Framework to the proposals as a whole. He does not suggest that he is applying paragraph 196 of the Framework to each of the works included in the proposal individually, or suggest or explain that this is the exercise he is performing. Indeed, in the last sentence of paragraph 13 he treats two elements of the development proposals together and in aggregate in assessing that harm will be less than substantial. The Inspector then asserts in the same paragraph that there are no public benefits to be weighed against this collective harm. All this reinforces my view of the exercise that the Inspector was performing, which was to look at the development proposal as a whole at the outset of his decision determining the appeal. Thus, I accept Mr Hunter’s submission that within paragraph 13 the Inspector is addressing the overall effect of all of the elements of the proposals taken together. After all, that was the way in which the application had been considered by the interested party when permission was refused.” [36]

“I am unable to accept, therefore, the submission made on behalf of Mr Garvey that in truth the Inspector separately considered each of the individual elements of the proposals and did not consider them together. However, for reasons which I shall explain shortly, even were I to accept that the Inspector considered the works comprised in the proposals separately my overall conclusion would be the same for reasons which are set out below. Where the Inspector fell into error, in my judgment, is that having concluded that the proposals gave rise to less than substantial harm as a result of his findings in respect of two of the proposed works, he went on to contend that there were no public benefits to be weighed against any of the harm caused. This was inconsistent with the earlier finding in paragraph 9 that there would be improvements to the architectural and historic interest of the building as a result of one of the elements of the proposal, and which gave rise to public benefits which ought to have been taken into account. This error can be characterised as either a failure to properly interpret the policy in paragraph 196 of the Framework as to how to go about striking the balance in relation to heritage assets, failing to properly interpret what might amount to a public benefit or, alternatively, the leaving out of account of a material consideration which was required by the policy to be taken into account, namely the improvements to the architectural and historic interest of the building as a consequence of one of the elements of the proposal which was by definition a public benefit.” [38]

 

R (Wyeth-Price) v Guildford BC [2020] EWHC 3355 (Admin), Lang J
Stephen Morgan appeared for the Interested Party

“The correct approach to adopt in the balancing exercise [by reference to s.66 of the Planning (Listed Buildings and Conservation Areas) Act 1990] is … to be found in the Framework.” [38]

“40.  Can it be inferred that the planning officer in this case took into account paragraphs 193 and 194 of the Framework in the balancing exercise he conducted in his report and thereby enabled members of the Planning Committee to take them into account?

41. In my view, there were several positive indications to the contrary, giving rise to a substantial doubt as to whether the duty was performed.

i) At the outset, the planning officer identified paragraphs 189 – 192 of the Framework as setting out “the framework for decision making” and stated that “this application took account of the relevant considerations in those paragraphs”. Paragraphs 189-192 are in a sub-section of Chapter 16, headed “Proposals affecting heritage assets”. The inference is that these are the paragraphs which the planning officer has taken into account. However the next sub-section, headed “Considering potential impacts”, which includes paragraphs 193, 194 and 196, was also a crucial part of the decision-making framework in this case. The planning officer later remedied his omission of paragraph 196 by expressly referring to it, but he did not at any stage remedy the omission of paragraphs 193 and 194.

ii) The planning officer’s repeated reliance solely on the wording of paragraph 196 of the Framework, to describe the balancing exercise, without advising members of the Planning Committee also to take into account paragraphs 193 and 194, and/or the considerations set out in those paragraphs.

iii)  The planning officer conducted a balancing exercise in which the heritage harm was balanced against the public benefits, without any indication that “great weight” should be given to the asset’s conservation, and that a Grade II* listed building was an important heritage asset which should attract greater weight. As in the Liverpool case, the effect was to “play down the part of the exercise represented by [paragraph 193 and 194] and to tilt the balance towards emphasising the absence of substantial harm and the public benefits to be weighed on the other side of the balance”: R (LOGS CIC) v Liverpool City Council & Anor [2019] EWHC 55 (Admin) , per Kerr J. at [81].

iv) In the balancing exercise the planning officer described the weight to be given to the various public benefits as “substantial”, “significant” and “modest”. The heritage harm was described as being “at the lower end of less than substantial”. On a fair reading, the Planning Committee was left in the position of weighing “less than substantial harm” against “substantial”, “significant” and “modest” public benefits in an untilted planning balance. The effect was to repeat the error made in [East Northamptonshire DC v SSCLG [2015] 1 WLR 45] where the “less than substantial harm” was wrongly treated as a less than substantial consideration.”

 

R (Juden) v LB Tower Hamlets [2021] EWHC 1368 (Admin), Sir Duncan Ouseley
Andrew Parkinson appeared as Junior Counsel for the Claimant
Rupert Warren QC appeared for the First Interested Party
Alistair Mills provided written submissions on behalf of the Secretary of State

“74.  The Minutes of the meeting, and indeed Crest Nicholson’s notes both support my assessment of the Report. The Minutes in particular show that the point at which the heritage benefits were put into the balance was after the assessment that the harm was less than substantial had been reached.

  1. Second, I see nothing unlawful in that approach. Whether or not what I said about paragraph 196 in Safe Rottingdean was correct, and whether or not Dove J was wise or unwise to follow it in Kay, as to which no particular view is expressed in or deducible from Bramshill, the Report did not adopt an unlawful approach either under the LBA or as a matter of the interpretation of paragraph 196 NPPF, with or without the light of Bramshill.”

“79.  Under the [Planning (Listed Buildings and Conservation Areas) Act 1990], when deciding whether or not the LBA, and the approach to it established by the courts over the years, has been met, and that significant weight has been given to the desirability of preserving it, there is nothing to suggest that the heritage benefit of restoring a redundant listed building, and bringing it back into a long term viable use, cannot be set against the harmful works which may be required to achieve what may be seen as a greater good. [R (Palmer) v Herefordshire Council [2017] 1 WLR 411] explains how sensible it is to set them off, an approach which Bramshill could not reject, and merely said was not a mandatory approach, so long as the benefits were taken into account in the overall planning balance. There was nothing unlawful in the approach to the LBA in the Report.

80.  So far as the application of paragraph 196 NPPF is concerned… it is clear, and nothing in Bramshill suggests otherwise, that the benefit of securing the long term future of a listed building, cannot affect the degree of heritage harm but must go into the public benefits side. Of course, this is a very common source of works, some of which restore and others which harm a building in preparing it for a different but viable use. The stage at which the decision-maker considers other heritage benefits, such as those in paragraph 17.3(b) of the Report, whether when considering overall heritage harm or when considering whether the public benefits outweigh heritage harm taken on its own, is a matter for the convenience of the decision-maker. Bramshill does not explicitly deal with the stage at which heritage benefits other than the optimal viable reuse of the building, should be allowed for. This could matter because the consequences of a finding that the harm is “substantial” are markedly different from those where the harm is “less than substantial.””

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