Town and country planning – Heritage assets – National Planning Policy Framework – Planning inspector dismissing appeals by developer against refusal of planning permission for development of listed buildings – Judge upholding decision – Appellant appealing – Whether inspector misinterpreting NPPF policy for “isolated homes in the countryside” – Whether inspector erring in approach to sustainability and heritage assets – Whether inspector erring in applying local plan policies for protection of historic environment – Appeal dismissed
The appellant specialised in the development of historic and heritage sites. It bought a 106-acre site at Bramshill Park, near Hook in Hampshire previously used as a police training college. On it stood a grade I listed Jacobean mansion and various other buildings and a grade I registered park and garden.
The appellant applied for planning permission to convert the buildings on site. The proposed development included the conversion of the mansion to 16 apartments and the construction of 235 houses in place of some of the existing buildings.
The second respondent local authority refused the applications and an inspector appointed by the first respondent secretary of state concluded that the proposed sites were not appropriate for development being in an unsustainable location resulting in isolated housing in the countryside. The development would be harmful to the character and appearance of the area and would not preserve the special qualities of the listed buildings, their settings or the registered park and garden. Those matters were not outweighed by public benefits and would not accord with local plan policies and national planning policy. The High Court upheld that decision: [2019] EWHC 3437 (Admin).
The appellant appealed raising questions on the interpretation and application of policies in the National Planning Policy Framework (NPPF) against the development of “isolated homes in the countryside” (paragraph 79) and on the assessment of harm and benefit to “heritage assets”.
Held: The appeal was dismissed.
(1) The concept of “isolated homes in the countryside” was a concept of national planning policy. It was not defined in the NPPF and did not lend itself to rigorous judicial analysis. Its application would depend on the facts of the case and decision-makers would have to exercise their planning judgment in a wide variety of circumstances. The essential conclusion in Braintree District Council v Secretary of State for Communities and Local Government [2018] EWCA Civ 610; [2018] PLSCS 61; [2018] 2 P & CR 9 was that, in determining whether a particular proposal was for isolated homes in the countryside, the decision-maker had to consider whether the development would be physically isolated, in the sense of being isolated from a settlement. What was a “settlement” and whether the development would be “isolated” from a settlement were both matters of planning judgment for the decision-maker.
The policy in paragraphs 78 and 79 of the NPPF aligned with that in paragraph 72. Neither policy favoured the unplanned and unsustainable development of housing in the countryside, away from existing settlements. It was for plan-making to achieve the supply of large numbers of new homes by planning for larger scale development, such as new settlements or significant extensions to existing villages and towns, provided they were well located and designed, and supported by the necessary infrastructure and facilities. It was for strategic policy-making authorities to identify suitable locations for such development to meet identified needs in a sustainable way.
In the present case, the inspector’s application of the policy in paragraphs 78 and 79 was impeccable. She clearly adopted the interpretation by the Court of Appeal in Braintree and applied the policy reasonably and lawfully to the proposals before her. There was no reason for the court to intervene.
(2) It was clear that the inspector had taken account of the “fall-back” use of the site as a residential institution and her conclusion on sustainability by reference to greenhouse gas emissions were not irrational. Even if it had been shown that the proposed development would generate lower levels of greenhouse gas emissions than the “fall-back”, she would not have concluded that it would overall comprise sustainable development due to the isolated location of the site and the lack of genuine alternative transport modes.
(3) The courts had considered the nature of the duty to “have special regard to the desirability of preserving the building or its setting” in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and the parallel duty for conservation areas in section 72, and the concept of giving “considerable importance and weight” to any finding of likely harm to a listed building and its setting, but had 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 if the approach in paragraphs 193 to 196 of the NPPF was followed, the section 66(1) duty was likely to be properly performed. The decision-maker had to adopt a sensible approach to assessing likely harm to a listed building and weighing that harm against benefits. There was no principle established in R (on the application of Palmer) v Herefordshire Council [2016] EWCA Civ 1061; [2016] PLSCS 296 which necessitated ascertaining whether there was “net” harm to a heritage asset when applying national policy.
(4) The absence of an explicit reference to striking a balance between “harm” and “public benefits” in the local plan policies did not put them into conflict with the NPPF, or with the duty in section 66(1). The local plan policies were not in the same form as those for designated heritage assets in the NPPF. They did not provide for a balancing exercise as described in paragraphs 193 to 196 of the NPPF, in which “public benefits” were set against “harm”. But they did not preclude a balancing exercise as part of the decision-making process, where appropriate. They did not override the NPPF policies or prevent the decision-maker from adopting the approach indicated in them. They were directed to the same basic objective of preservation.
In the present case, the inspector had neither erred in discharging the decision-maker’s statutory duties nor misinterpreted or misapplied the local plan policies or paragraphs 193 to 196 of the NPPF.
James Strachan QC and Ned Helme (instructed by Pinsent Masons LLP) appeared for the appellant; Guy Williams and Alistair Mills (instructed by the Government Legal Department) appeared for the first respondent; Ben Du Feu (instructed by Historic England Governance and Legal) appeared for the third respondent; Melissa Murphy (instructed by Sharpe Pritchard LLP) appeared for the fourth respondent.
Eileen O’Grady, barrister
