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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
Christopher Katkowski QC and Richard Turney appeared 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 [2019] EWHC 3437 (Admin), Waksman J
Guy Williams and Alistair Mills appeared for the Secretary of State

“109.  C&C argues that instead of working through the relevant parts of the NPPF as she did, the Inspector should have carried out an initial internal balancing exercise within paragraph 193 to see if there was a net resulting harm so as to engage the following paragraphs at all. This is the argument she refers to, and rejects, in her paragraphs 123-125. C&C’s point is that if that internal balancing exercise had been carried out, then it might well be that there would be no net harm resulting at all or at least any net harm would be of a much lower order, and this would consequently affect any overall balancing exercise. C&C further contends that the “great weight” to be applied to “conservation” within paragraph 193 would include any proposed benefits on the basis that conservation is defined so as to include any enhancements to the relevant assets. C&C contends that the case of Palmer mandates the approach which the Inspector rejected.

  1. I disagree with all of those contentions for the reasons set out below.
  2. First, Palmer was dealing not with the NPPF but with local policies which in that case followed the same broad pattern as CON 12 and 17 here, along with s66 . That is to say, while they made specific reference to the special attention to be paid to the preservation of heritage assets, they did not refer to countervailing benefits to be taken into account, as did the NPPF. In those circumstances, and in order to make the former provisions work, one had to undertake some kind of balancing exercise to see if in fact there were any adverse effects at all. This was in a context where the apprehended odours from the intended development would in fact be avoided because of the contemplated mitigation measures. That is quite different from balancing an admitted or found adverse impact on the heritage asset on the one hand, against separate beneficial effects on the other.
  3. In my judgment, the distinction between separate benefits and mitigation measures to negate the adverse effects which would otherwise arise, is sufficient to distinguish Palmer from this case.
  4. However, there is a clear principled difference as well. It is not in dispute that the Court of Appeal in Mordue v SSCLG [2016] 1 WLR 2682 held that generally, if a decision maker works through the “fasciculus” (or bundle) of the relevant provisions of the NPPF (as cited above) such an approach will amount to compliance with the s66 duty. See in particular paragraph 28 of the judgment of Sales LJ (as he then was). The same must surely be true of compliance with (non-statutory) local policies which themselves effectively replicate the s66 duty. All of that makes sense when one considers the graduated sequence of balancing exercises set out in the NPPF paragraphs.
  5. If one was to concentrate on s66 itself, or the CONs, and without regard to NPPF, however, it is inevitable that a balancing exercise has to be conducted within them because otherwise they would not work at all. Indeed, for this reason, the parties to varying degrees stated that lesser weight must be given to the CONs precisely because of their lack of reference to countervailing benefits. But on any view it is not possible to abandon the duty set out in s66 – so how that duty is to be performed needs to be analysed. And this is what the Court of Appeal did in Mordue so far as the NPPF was concerned.
  6. Palmer itself was all about local plan policies, not the NPPF which is why a potential problem would have arisen even if the countervailing factor was not mitigation measures but separate benefits.
  7. However, in this case, the Inspector proposed to work through the NPPF which was recognised in Mordue as a compliant approach and where the successive provisions set out carefully a balancing exercise for the harms and benefits. In the context of the NPPF, therefore, it makes no sense to second-guess that exercise, as it were, by trying to encompass it all within paragraph 193. To do so would render nugatory, or almost so, the following paragraphs.
  8. As it so happens, in my judgment, I have serious doubts as to whether the definition of “conservation” in paragraph 193 was intended to allow in weight according to the countervailing benefits as C&C contends. This is because in my view, what “conservation” in paragraph 193 is getting at is the value to be placed on preservation in the sense of not harming the heritage asset. A development which would harm or interfere with the asset’s continued existence or its preservation or its enhancement, is that which then engages this collection of paragraphs as a whole.
  1. Accordingly, the Inspector was well-entitled to adopt the course she did and she did not in any way misdirect herself. Palmer did not impel her to undertake an internal initial balancing exercise under paragraph 193. Indeed, had she done so, I would have regarded that as an error of law.”

 

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]

 

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
Christopher Katkowski QC and Richard Turney appeared 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.”

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