High Court Clarifies Levels Of Harm To Designated Heritage Assets Within The NPPF

The High Court has recently clarified the position as regards the ‘levels’ of harm to designated heritage assets within the NPPF in R.(oao James Hall and Company Limited) v City of Bradford Metropolitan District Council and Co-Operative Group Limited [2019] EWHC 2899 (Admin).

The Claimant challenged the decision of Bradford MDC to grant planning permission for the demolition and development of the old Haworth fire station and its replacement with an A1 food retail unit with parking and other associated works.

The application site was within the setting of the Haworth Conservation Area, albeit not within the Conservation Area itself. Thus, it was agreed that the duty within s.72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 did not apply, but national and local policy concerning the setting of heritage assets did. In this context the Court made the following points.

The Court held that there are only three ‘levels’ of harm:

34. In my judgment the three categories of harm recognised in the NPPF are clear. There is substantial harm, less than substantial harm and no harm. There are no other grades or categories of harm, and it is inevitable that each of the categories of substantial harm, and less than substantial harm will cover a broad range of harm …

The Court went on to say that even limited or negligible harm was enough to fall within the bracket of ‘less than substantial harm’:

34.… It will be a matter of planning judgement as to the point at which a particular degree of harm moves from substantial to less than substantial, but it is equally the case that there will be a number of types of harm that will fall into less than substantial, including harm which might otherwise be described as very much less than substantial. There is no intermediate bracket at the bottom end of the less than substantial category of harm for something which is limited, or even negligible, but nevertheless has a harmful impact. The fact that the harm may be limited or negligible will plainly go to the weight to be given to it as recognised in Paragraph 193 NPPF. However, in my judgment, minimal harm must fall to be considered within the category of less than substantial harm. 

Heritage experts will therefore need to be clear as to within which ‘level’ of harm a proposal sits. As the Court has made clear, it is simply not possible to acknowledge a heritage impact but then to seek to discount it as being irrelevant on the basis that it is a ‘negligible harm’. Even this will engage the heritage paragraphs withins the NPPF

A secondary point arising from the case is the Court’s finding that it was inappropriate for the Bradford’s officers to pre-determine the impacts on heritage assets and not include these judgements in the committee report.

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