Town and country planning – Outline planning permission – National planning policy framework – Inspector appointed by first defendant secretary of state granting outline planning permission to second defendant developer for dwellings and associated development near listed buildings – Claimant local planning authority applying to quash decision – Whether inspector applying wrong test for harm to heritage assets – Application granted
The second defendant developer applied for planning permission to build up to 85 dwellings and associated works on land north of Ross Road in Newent. The site contributed to the significance of the Mantley House Farm complex, a Grade II listed group of buildings. The claimant district council refused that application. The second defendant appealed and, following an inquiry, an inspector appointed by the first defendant secretary of state granted outline planning permission. By an application made pursuant to section 288 of the Town and Country Planning Act 1990, the claimants challenged the inspector’s decision.
The claimants contended that the inspector had, among other things, failed to consider the interaction between paragraph 134 and paragraph 14 of the national planning policy framework (NPPF) and therefore applied the wrong test for harm to heritage assets.
Paragraph 14 provided that at the heart of the framework was a presumption in favour of sustainable development. For decision-taking that meant, where the development plan was absent, silent or relevant policies were out-of-date, granting permission unless: (i) any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the framework taken as a whole (limb 1); or (ii) specific policies in the framework indicated development should be restricted (limb 2).
Paragraph 134 stated that, where a development proposal would lead to less than substantial harm to the significance of a designated heritage asset, that harm should be weighed against the public benefits of the proposal, including securing its optimum viable use.
The first defendant expressly accepted that the failure to consider and apply the test created by the interaction between paragraphs 134 and 14 of the NPPF, had been made out. Consequently, the first defendant joined with the claimants in asking the court to quash the appeal decision. However, the second defendants did not agreed and resisted the application.
Held: The application was granted.
(1) Limb 2 of paragraph 14 of the NPPF disapplied the presumption in favour of granting planning permission where specific policies in the NPPF indicated development should be restricted, including a policy relating to “designated heritage assets”. Throughout the NPPF, there was a presumption in favour of sustainable development and of granting permission. However, paragraph 134 was a specific policy which stated where development should be restricted. Paragraph 134 provided for a balancing exercise to be undertaken, between the “less than substantial harm” to the designated heritage asset and the public benefits of the proposal. Paragraph 134 was a particular policy restricting development and limb 2 of paragraph 14 applied.
Paragraph 14 was restrictive of development, in the same way as paragraph 134, in that it identified a situation in which the presumption in favour of development did not apply. On a proper interpretation of the NPPF, the exercise at paragraph 134/limb 2 needed to be undertaken when there was less than substantial harm to the significance to a designated heritage asset. On the face of it, that exercise seemed to involve an ordinary (or unweighted) balancing of harm and benefits. There was no reason to import the weighted test from limb 1 into paragraph 134, when the words of paragraph 134 could be read entirely satisfactorily without them.
(2) When a development would harm a listed building or its setting, the decision-maker had to give that harm considerable importance and weight. That harm alone gave rise to a strong presumption against the grant of planning permission. That was linked to the defendant’s duty under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 identifying the requirement that the local planning authority or the defendant should have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possessed.
The inspector in this case had been aware of the considerable weight and importance to be given to the desirability of preserving the setting of the Mantley House Farm complex but that weight was to be applied as part of the ordinary balancing exercise under paragraph 134. Because the inspector had not undertaken that exercise, the considerable weight to be given to the preservation of listed buildings, let alone the presumption against granting permission in such situations, had been, at best, diluted and, at worst, lost altogether. Limbs 1 and 2 in paragraph 14 meant that the presumption in favour of planning permission was to be dis-applied in two separate situations. Both limbs had to be considered. In this case, because of the harm to the designated heritage assets, limb 2 fell to be considered first. The appropriate test was the ordinary (unweighted) balancing exercise envisaged by the words in paragraph 134. Nowhere had the inspector carried out that exercise. He had only undertaken the weighted exercise in limb 1 and therefore erred in law: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69, Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), R (on the application of the Forge Field Society) v Sevenoaks District Council [2014] EWHC 1895 (Admin); [2014] PLSCS 181 and East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137; [2014] 2 EGLR 85 applied.
(3) The court could not be satisfied that the inspector would have reached the same conclusion had he applied the correct test, particularly where, as here, the test in limb 1 was weighted firmly in favour of the benefits of development, whilst the ordinary test in paragraph 134 was not. It was impossible to be sure that, as part of an ordinary balancing exercise, the harm identified by the inspector would not outweigh the benefits. In the exercise of the court’s discretion, it was proper to quash the decision: Europa Oil and Gas Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 825; [2014] PLSCS 181 applied.
Peter Wadsley and Philip Robson (instructed by Forest of Dean District Council Legal Services) appeared for the claimant; Gwion Lewis (instructed by the Treasury Solicitor) appeared for the first defendant; David Elvin QC and Peter Goatley (instructed by Irwin Mitchell LLP) appeared for the second defendants.
Eileen O’Grady, barrister
