The recent Court of Appeal case of City & Country Bramshill Ltd v Secretary of State for Housing, Communities and Local Government and others ([2021] EWCA Civ 320; [2021] PLSCS 49) has re-emphasised the need to take care where a proposed development may impact on heritage assets (eg listed buildings, conservation areas, scheduled monuments, etc).
Impact on heritage is a relatively easy hook for an objector to hang a judicial review on if not dealt with correctly, so it must be handled delicately. This article explores the impact of heritage assets on planning applications and offers some practical tips on how to reduce the risk of a challenge.
Statutory duties
In determining planning applications, the main duties to be aware of are those set out in the Town and Country Planning (Listed Buildings and Conservation Areas) Act 1990. Section 66(1) requires local planning authorities and the secretary of state, “in considering whether to grant planning permission… for development which affects a listed building or its setting”, to “have special regard to the desirability of preserving the building or setting or any features of special architectural or historic interest which it possesses”. Section 72(1) contains a similar duty for conservation areas.
Ultimately, there is a statutory presumption against planning permission being granted if the relevant heritage asset is not preserved. This means permission should not be granted if the development does not make a positive contribution to the asset’s preservation or causes harm to it (South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141; [1992] EGCS 154). The presumption is rebuttable and can be outweighed by other material considerations.
The National Planning Policy Framework sets out the broad approach to be undertaken in assessing the impact of a proposed development on heritage assets and the consequences of this on planning applications – summarised below. The Court of Appeal has, helpfully, clarified that if a local planning authority follows this approach, then the section 66(1) duty is likely to have been properly performed (Jones v Mordue [2015] EWCA Civ 1243; [2015] PLSCS 346). This is the case even if the LPA has only referred to one but not all of the relevant paragraphs of the NPPF in its decision, provided that there is not some positive indication to the contrary.
Significance of heritage assets
First, LPAs must identify and assess the particular significance of any heritage asset that may be affected by a proposal, in particular “the value of a heritage asset to this and future generations because of its heritage interest”. The LPA must then identify what contributes to that significance, which could include the asset’s setting.
A heritage asset’s setting is defined in the NPPF as “the surroundings in which a heritage asset is experienced”, and “its extent is not fixed and may change as the asset and its surroundings evolve”. Developers should be mindful of this as the impact of a development on a heritage asset could vary dramatically depending on the nature, extent and sensitivity of a relevant asset’s setting.
In short, not all heritage assets are the same, nor can they tolerate the same types of impact. It will be necessary for the LPA – and therefore the developer – to show that the specifics of relevant heritage assets have been considered.
Assessing the magnitude of harm
An LPA must then consider the impact of the proposed development on the significance of relevant heritage assets (and their setting), and specifically whether this will cause substantial harm (which includes total loss of significance), less than substantial harm or no harm.
There is no NPPF definition of what constitutes “substantial” or “less than substantial” harm. The courts have confirmed that the existence of harm and whether it is “substantial” are matters of fact and planning judgment. Similarly, the point at which harm moves from being “less than substantial” to “substantial” (Bramshill; R (James Hall and Company Ltd) v City of Bradford Metropolitan District Council and Co-Operative Group Ltd [2019] EWHC 2899).
As there are only two categories of harm, each category will capture a broad range, with, for example, minimal or negligible harm falling within the scope of “less than substantial” harm. There is, though, no uniform approach as to how to assess what the harm to an asset will be, or what should be taken into account or excluded.
Benefits to be weighed against harm
If the proposed development will harm a heritage asset, a balancing exercise should be carried out by the LPA.
Where there is substantial harm, an LPA must refuse permission “unless it can be demonstrated that the substantial harm or total loss is necessary to achieve substantial public benefits that outweigh that harm or loss”, or four specified requirements are all met. Where there is less than substantial harm, “this harm should be weighed against the public benefits of the proposal, including, where appropriate, securing its optimum viable use”. What amounts to a benefit and what weight is given to this is, again, a matter for the LPA, but the benefits can encompass benefits to the specific heritage asset in question, benefits to other heritage assets, or non-heritage benefits (Bramshill).
The amount of weight that is given to the level of harm is also a matter of planning judgment. However, the NPPF stipulates that “great weight should be given to the asset’s conservation (and the more important the asset, the greater the weight should be)”.
The courts have also held that considerable importance and weight must be given to the desirability of preservation when carrying out the balancing exercise (Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council and others [2014] EWCA Civ 137). If there is a need for a particular development but this would cause harm to heritage assets, the LPA should consider whether the development could be carried out on an alternative site without any harm being caused. If it can, this would add weight to the presumption in favour of preservation (R (on the application of The Forge Society and others) v Sevenoaks District Council and others [2014] EWHC 1895; [2014] PLSCS 242).
There has previously been a question mark over whether, before the balancing exercise required by the NPPF is engaged, an “internal” heritage balancing exercise must be undertaken. This means that heritage harm and heritage benefits should be assessed first, and only if there is net harm should the public benefits be weighed against the net harm. However, the Court of Appeal in Bramshill has confirmed that while this approach may be adopted, it is not a legal requirement, and in any event Lindblom LJ could not “see how this approach could ever make a difference to the ultimate outcome of an application or appeal”.
Interaction with overall planning balance
In addition to this balancing exercise, it is important to remember that the LPA has a statutory duty to determine any planning application in accordance with the development plan, unless material considerations indicate otherwise. In that regard, Bramshill emphasised that “every element of harm and benefit [whether heritage or otherwise] must be given due weight by the decision-maker as material considerations”.
Practical takeaways
What does this mean for developers trying to obtain planning permission for a development that may impact heritage assets? First, it is important to consider whether it is appropriate to appoint a heritage expert, depending on the complexity of the issues.
Second, either a separate heritage statement or the planning statement will need to deal with any heritage aspects. The statement should identify the heritage assets (and the setting), their significance and what contributes to that significance, assess the impact of the proposed development on the asset’s significance and identify the level of harm. Even if no harm is identified, it is best practice to carry out the balancing exercise between harm and benefits in case the LPA concludes that there is harm, usually assuming that the worst-case scenario would be a finding of less than substantial harm. This statement is the developer’s opportunity to set out its assessment of any heritage impacts to the LPA, consultees and members of the public – and help ensure that the LPA follows the process required of it.
Finally, it would be helpful to review a draft of the LPA planning officer’s report to ensure that it is clear in that report that the statutory duties and NPPF policies have been complied with, in order to reduce the risk of a challenge being made.
Caroline Stares is an associate in the planning team at Hogan Lovells International LLP
