Considering heritage issues in planning applications: recent guidance from the courts

Lorna Bowry, Sharpe Pritchard

Several recent court cases have clarified the approach which a local planning authority (LPA) should take when it considers the effect of heritage issues in determining applications for planning permission. They cover the effect of the statutory presumptions in sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the “Act”), and the policy guidance in paragraph 134 of the National Planning Policy Framework (NPPF).

Section 66(1) of the Act states that when considering whether to grant planning permission for development which affects a listed building or its setting, the LPA shall have special regard to the desirability of preserving the building or its setting, or any features of special architectural or historic interest which it possesses. Section 72 of the Act contains similar requirements with respect to buildings or land in a conservation area. In this context, “preserving”, means doing no harm.

The policy guidance in Paragraph 133 of the NPPF is clear in relation to a development proposal which will lead to substantial harm to or total loss of significance of a designated heritage asset. In such cases, planning permission should be refused unless it can be demonstrated that the substantial loss or harm is necessary to achieve substantial public benefits that outweigh that harm or loss, or all the conditions set out in paragraph 133 apply. Paragraph 134 states that where a proposal will lead to less than substantial harm to the significance of a designated heritage asset, such harm should be weighed against the public benefits of the proposal, including its optimum viable use. It is not obvious at first glance that Paragraph 134 should be read in conjunction with the first part of Paragraph 132 which states that when considering the impact of a proposal on the significance of a designated heritage asset, “great weight” should be given to the asset’s conservation. This wording reflects the statutory duty in sections 66(1) and 72(1) of the Act.

In the Barnwell Manor case an Inspector held that a proposal for 4 wind turbines would have a less than substantial effect on the setting of over 40 designated heritage assets, some of which were Grade I listed. He then proceeded to carry out a straightforward balancing exercise in accordance with paragraph 134 of the NPPF. He concluded that the benefits of the proposal outweighed the less than substantial harm to the setting of the heritage assets, and granted planning permission. This case ended up in the Court of Appeal in February 2014, which upheld the High Court’s decision to quash the grant of planning permission. The Court of Appeal held that in enacting section 66(1), Parliament intended that the desirability of preserving the settings of listed buildings should not simply be given careful consideration but “considerable importance and weight” when carrying out the balancing exercise. This gives rise to a strong statutory presumption against granting planning permission for development which would cause harm to the settings of listed buildings. Even where the harm would be “less than substantial” the balancing exercise cannot ignore the overarching statutory duty imposed by section 66(1). The Court of Appeal found that the Inspector did not give considerable importance and weight to the section 66(1) duty when carrying out his balancing exercise.

Despite the decision in Barnwell Manor, the LPAs in the Forge Field and South Lakeland cases (decided in June and November 2014 respectively) fell into the same trap of carrying out a balancing exercise in accordance with Paragraph 134 of the NPPF (after concluding the relevant proposal will lead to less than substantial harm to designated heritage assets) without demonstrably giving “considerable importance and weight” to the desirability of preserving those heritage assets. In both cases, the High Court quashed the grant of planning permission. However, it is clear from the Babergh case (decided in October 2014) that provided the decision-maker demonstrably has regard to the statutory duty in section 66(1) and/or section 72(1) of the Act when carrying out the balancing exercise pursuant to Paragraph 134 of the NPPF, the Courts are unlikely to interfere with their decision unless it is so unreasonable that no reasonable person could have made it.