Historic problems

Issues around heritage impacts and their assessment regularly feature as grounds of legal challenge. This is partly spurred on by applicants and decision makers needing to navigate through a combination of overlapping statutory and policy tests. While now reasonably well established, elements of these tests lack expressly defined terms and/or metrics, triggering a wider reliance of reasonable (and reasoned) planning judgment.

This might be good news for those of us who love a hearty debate, but not so great for those who quite justifiably look for some certainty of approach to help guide their developments. With express terms lacking, we need to turn to the courts to help offer clarification and guidance.

So what, if any, heritage decisions have come out in 2022?

All about the balancing act

In Wiltshire Council v Secretary of State for Housing, Communities and Local Government (and others) [2022] EWHC 36 (Admin) the court upheld an inspectors’ appeal decision to grant outline planning for 10 affordable dwellings.  Wiltshire argued that the inspector misinterpreted a policy in the development plan which sought to ensure the protection, conservation and where possible the enhancement of the historic environment. 

The inspector had acknowledged that the policy, which lacked any express reference to any balancing exercise, was inconsistent with paragraph 196 (now 202) of the NPPF, and so reduced the weight of the harm derived from any conflict with the policy to moderate.  The Council sought to argue this was in error and pointed to Bramshill, where there had been similar inconsistencies between the relevant plan policies and the NPPF. Also, Sir Keith Lindblom found that an absence of any explicit reference to needing to balance harm and benefits in local plan policies ‘does not put them in conflict with the NPPF, or the duty in section 66 (1)’. However, in rejecting this ground, the court noted that the inspector had actually carried out a similar balancing exercise to that found in Bramshill. This included direct reference to the statutory duty under s66(1), where it was noted in Bramshill that the decision maker is obliged under such statutory duty to give such weight to local plan policies as considered appropriate, and that this is ultimately a matter for planning judgment.

Putting Bedford to bed

In London Historic Parks And Gardens Trust v Minister of State for Housing & others [2022] EWHC 829 (Admin) the High Court quashed the ex-housing minister’s decision to grant planning permission for the Holocaust Memorial Centre to be located in Victoria Park Gardens next to Parliament. Although that decision was taken in respect on the two non-heritage grounds, one further ground prompted a review of ‘substantial harm’ and the suggested conflict between:

• the guidance in the PPG which sets out that substantial harm can arise where the impact of the development “seriously affects a key element of [the asset’s] special architectural or historic interest”; and
• the arguably high bar test in Bedford which considered that for there to be substantial harm, “very much if not all, the significance [is] drained away”.  

The Court concluded that the inspectors’ approach was in fact consistent with the NPPF, and the reference made to Bedford was “no more than the Inspector confirming, or cross checking his analysis” and having “formulated his own test, namely the ‘serious degree of harm to the asset’s significance”.  Importantly, the judgment in Bedford did not import a test of ‘draining away’ but rather had simply encapsulated the application of the substantial harm test by the Inspector in that specific case, and, when read as a whole, the judgment was consistent with the advice in the PPG. So, no more reliance on Bedford’s high bar test.

The Court also affirmed (referring to Bramshill) that determination of harm is a matter of planning judgment, and the NPPF does not prescribe any singular approach to this.

Heritage reforms – if we ever get there!

Stepping away from the court, back in May, the government (at that time under Boris Johnson) published the Levelling Up and Regeneration Bill. In amongst a somewhat eclectic set of planning reforms, the draft Bill actually contained a few heritage reforms, which include:

• Introducing an express statutory duty to have special regard to the desirability of ‘preserving or enhancing’ a relevant asset or its setting when determining planning applications. As defined, relevant assets align with designated heritage assets as set out in the NPPF.
• Establishing a new immediate temporary stop notice where the authority considers it expedient in respect of perceived breaches of listed building controls. The proposals include for criminal liability for contravention, but also include for potential compensation.
• Removing eligibility for compensation in respect of building preservation notices.
• Placing the requirement for maintaining an historic environment record on a statutory footing (with regulations to follow on how information is to be stored and made available, and the charging of fees for its use).

None of these will be seen as fundamental changes, though the removal of the threat of compensation might see a greater use of building preservation notices that could cause further delays and uncertainty for developers looking at wholescale redevelopment of sites.

Looking ahead to 2023

Whilst it is clear there will continue to be those seeking to challenge planning decisions on heritage grounds, the recent evolution of case law means that local authorities and inspectors are in a position to feel more confident about their decisions – provided they apply policies with ‘realism and good sense’ and reports are well-reasoned and rationalised.

As for what is to come, without a crystal ball to hand, it feels somewhat presumptuous to say whether the current Bill, or the government promoting it, will stay the course. If it does reach the finish line, the changes we're likely to see will hopefully clarify, rather than transform, the consideration of heritage assets in development proposals.

Here’s to the excitement that awaits us in 2023!