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  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.
The Government has today (19 February 2019) published a revised version of the NPPF, which replaces that published last July.
For those of you who don’t want to spend a long time trying to spot the changes between the two versions, you might find this comparator tool helpful (just click on the two diagonal arrows to take it to a full screen):
East Bergholt Parish Council has failed in a High Court challenge to decisions by Babergh District Council to grant planning permissions for 229 new homes in the Suffolk village.
Sir Ross Cranston, sitting as a High Court judge, said the three applications involved were not in accordance with the local development plan but were granted because Babergh could not demonstrate a five year housing land supply. They were therefore allowed under the provision of the National Planning Policy Framework that permits applications for developments deemed sustainable in this situation.
The case turned on the Parish Council’s claims that Babergh had not lawfully exercised its discretion when assessing deliverability in the context of a five year land supply. The Parish Council contended that the officer’s report did not direct councillors as to whether the scheme’s opponents had a point to make, and that an error in the calculation of the land supply was not corrected.
In East Bergholt Parish Council v Babergh District Council  EWHC 3400 (Admin) Sir Ross decided: “I cannot accept that the officer’s reports for the three sites were misleading, certainly not significantly misleading, in not directing councillors as to what is said was the error in the council’s 2017 [five year supply]. On their face there was nothing in my view untoward in the officer’s reports.”
He also ruled that Lindblom LJ’s judgment in St Modwen Developments Ltd v Secretary of State for Communities and Local Government did not mean Babergh was wrong to take into account developer pressure and that the developers might mount legal challenges against the council.
“It is not unlawful for a local planning authority to want to have confidence that it will be able to robustly defend the judgments it forms on the deliverability of housing sites,” Sir Ross said. “For that reason the concern about challenges from developers was lawfully taken into account as a factor in decision-making.”
He also dismissed a claim that Babergh had acted unfairly in giving four days’ notice rather than five of papers for the meeting concerned.
As if we really needed to be told, the term ‘isolated’ has its ordinary meaning in the National Planning Policy Framework (NPPF) and needs no over-interpretation, the Court of Appeal has ruled.
Developer Granville had successfully appealed against Braintree District Council’s refusal of planning permission for two detached single-storey homes on the sites of two agricultural buildings outside the settlement boundary defined in the emerging development plan.
The site lies between two listed farmhouses and the two pre-fabricated agricultural buildings that stood there were demolished in 2015.
Braintree argued that the inspector had misunderstood and misapplied paragraph 55 of the NPPF when he said that Blackmore End was “a recognisable village and is characterised by linear development extending along several roads”.
The inspector said: “There are a number of dwellings nearby and the development would not result in the new isolated homes in the countryside to which framework paragraph 55 refers.” He also concluded no material harm would be caused to the setting of two nearby grade II* and grade II listed farmhouses.
In giving the lead judgment in the Court of Appeal, Lindblom LJ said “Planning policies, whether in the development plan or in the NPPF, ought never to be over-interpreted. As this case shows, over-interpretation of a policy can distort its true meaning – which is misinterpretation”. He said paragraph 55 was “expressed in general and unprescriptive terms”, did not dictate a particular outcome for an application, contained no presumption and simply advised local authorities on how to promote sustainable development in rural areas.
The paragraph’s advice was to avoid “new isolated homes in the countryside”, which Lindblom J said: “Simply differentiates between the development of housing within a settlement – or village – and new dwellings that would be ‘isolated’ in the sense of being separate or remote from a settlement”. He explained: “Whether a proposed new dwelling is, or is not, ‘isolated’ in this sense will be a matter of fact and planning judgment for the decision-maker in the particular circumstances of the case in hand. In my opinion the language of paragraph 55 is entirely unambiguous, and there is therefore no need to resort to other statements of policy, either in the NPPF itself or elsewhere, that might shed light on its meaning.”
A copy of the judgment can be found here.
The Government has today launched a consultation on the draft revised text of the National Planning Policy Framework (NPPF). The consultation will run until 10 May 2018.
The revisions incorporate policy proposals previously consulted upon in both the Housing White Paper and Planning for the Right Homes in the Right Places.
The draft seeks comments on potentially wide-ranging changes affecting housing delivery, and the assessment of sustainable development.
The draft revised NPPF and supporting documents can be viewed here.