Town and country planning – Listed buildings – National Planning Policy Framework — Planning (Listed Buildings and Conservation Areas) Act 1990 – Decisions to make order under Transport and Works Act 1992 authorising new railway and to grant listed building consent for demolition or alteration of listed buildings affected by those works – Whether decisions reached in breach of statutory duty under 1990 Act to have special regard to desirability of preserving listed buildings and conservation areas – Whether contrary to corresponding policies in paras 132 and 133 of NPPF – Appeal dismissed
In March 2015, the first respondent decided to make the Network Rail (Ordsall Chord) Order, under the Transport and Works Act 1992, authorising the construction by the third respondent of an elevated chord railway, of 340m in length, running from Manchester to Salford and linking the three main railway stations in Manchester. On the same day, the second respondent decided to allow 10 applications for listed building consent for the demolition, partial demolition or alteration of listed buildings affected by the works.
Those decisions followed the recommendation of an inspector who had conducted an inquiry into the proposals. It was accepted that the new railway would bring considerable transport benefits, by connecting the two main rail corridors in Manchester, relieving an existing bottleneck at Manchester Piccadilly Station, providing an important component in the Northern Hub project for extensive improvements to the railway network in the north of England, and assisting in the regeneration of Salford. However, the new railway would also cause substantial harm to several listed buildings at and near the site of the former Liverpool Road Station, including Grade I listed buildings which were “designated heritage assets of the highest significance” under government policy in para 132 of the National Planning Policy Framework; it would also harm the settings of other listed buildings and the character and appearance of the Castlefield conservation area.
The appellant appeared as an objector at the inquiry and presented a case for an alternative alignment, referred to as Option 15, which avoided damage to heritage assets. The inspector rejected Option 15 after finding that its advantages were outweighed by its disadvantages, including harmful effects on the regeneration potential of a site known as Middlewood Locks, for which Salford City Council sought a major commercial and residential redevelopment.22
The appellant challenged the lawfulness of the decisions. He contended that the inspector had: (i) failed to comply with the requirement, under the Planning (Listed Buildings and Conservation Areas) Act 1990, to have special regard to the desirability of preserving listed buildings and conservation areas; and (ii) misapplied the corresponding policies in paras 132 and 133 of the NPPF, by failing to require the third respondent to demonstrate that the harm to heritage assets was genuinely necessary.
Held: The appeal was dismissed.
(1) There had been no failure to discharge the requirements imposed on decision-makers under section 16(2), 66(1) and 72(1) of the 1990 Act in relation to listed buildings and conservation areas. The inspector had acknowledged the requirement that considerable importance and weight should be given to the desirability of preserving a listed building or its setting, and preserving or enhancing the character or appearance of a conservation area. In the circumstances, it could not sensibly be argued that either the inspector or the first or second respondents failed to grasp what the statutory duties required or that they had failed to perform the requirements in those duties, in substance as well as in form.
(2) The inspector and the first and second respondents had also had in mind the requirements of government policy in paras 132 and 133 of the NPPF. Both the inspector’s report and the first respondent’s decision letter contained several references to those policies, and the second respondents must be taken to have had them in mind when he accepted the inspector’s relevant conclusions. The inspector had acknowledged that substantial harm to heritage assets of the highest significance should be “wholly exceptional” and that the necessity for such harm had to be rigorously tested. He had understood and sought to apply the test in para 133 of the NPPF, under which proposals that would cause substantial harm or loss to heritage assets had to be shown to be necessary to achieve substantial public benefits that outweighed that harm or loss. There was no scope for an argument that relevant national policy for heritage assets was misconstrued or ignored: East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137; [2014] 2 EGLR 85; [2014] EGILR 23 applied.
(3) It was common grounds that, as found by the inspector, there was a pressing need for the proposed works and the Ordsall Chord would result in very substantial public benefits, which provided very strong justification for making the order. The need for the project, the urgency of that need, and the significance of the public benefits associated with it were uncontroversial. The appellant’s criticisms of the inspector’s approach to Option 15 had to be viewed in that context.
The inspector had properly concluded that he should not simply conduct a straightforward balance of harm to the Middlewood Locks against the substantial benefits of an Ordsall Chord on the Option 15 alignment, since Option 15 was not the order scheme. That did not mean that he was downplaying the merits of Option 15 in considering whether it enabled him to conclude, under the policy in para 133 of the NPPF, that the “substantial harm” to heritage assets that would be caused by the proposed works was “necessary to achieve substantial public benefits that outweigh that harm”. The issue was whether Option 15 would provide a “reasonable alternative” to the order scheme and would be on an “appropriate alternative site”, within the meaning of para 91 of the PPS5 Practice Guide, which still provided appropriate guidance in relation to the requirements of para 133 of the NPPF. In considering that issue, the inspector was doing what was required of a decision-maker by statute, by government policy in the NPPF and by the PPS5 Practice Guide in a case of substantial harm to the significance of designated heritage assets. Paragraph 133 was not prescriptive as to the considerations that might be relevant to an assessment of the kind that it required; it would depend on the particular circumstances of the case in hand, which would vary widely. It was open to the inspector, and in their turn the first and second respondents, to bring into account the harm that Option 15 would cause to the development of Middlewood Locks, and the serious consequences of that for the regeneration of central Salford, as decisive factors leading them to conclude that Option 15 was not a reasonable alternative to the proposed works. That was a reasonable exercise of planning judgment and was supported by clear and adequate reasons.
Richard Drabble QC and Andrew Parkinson (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Richard Kimblin QC and Jack Smyth (instructed by the Government Legal Department) appeared for the first and second respondents; Nathalie Lieven QC and Richard Clarke (instructed by Winckworth Sherwood LLP) appeared for the third respondent.
Sally Dobson, barrister
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