'Less than substantial harm' test for heritage site was wrongly applied, rules High Court

High Court judge Mr Justice Coulson confirmed that decision makers must carry out two separate exercises when deciding whether planning permission must be granted where a development plan is absent or silent or relevant policies are out of date. The planning inspector had erred in law by carrying out only one of these exercises, the judge said.

Planning inspector Christopher Anstey had granted outline planning permission on appeal (16-page / 238 KB PDF) for an 85-home development on fields that contributed to the rural setting of a Grade II-listed farm complex in Gloucestershire.

The local planning authority had been unable to demonstrate a five year supply of housing land, so Anstey considered local policies relating to housing to be out of date. In such circumstances, paragraph 14 of the National Planning Policy Framework (NPPF) requires that planning permission should be granted unless: "any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies of the Framework taken as a whole; or specific policies in this Framework indicate development should be restricted".

In allowing the appeal, the planning inspector had only considered the first of the two situations under which planning permission ought not to be granted.

Anstey had found that 'less than substantial harm' would be caused to the setting of the farm complex if planning permission was granted and had given "considerable weight to the desirability of preserving the setting of [designated heritage assets]". However, he had concluded that "the limited number of adverse impacts identified in this case, and their localised nature, even when added together, would not significantly and demonstrably outweigh the benefits, when assessed against the policies of in the Framework taken as a whole."

In his High Court judgment, Mr Justice Coulson said Anstey should also have considered whether "specific policies in [the NPPF] indicate[d] development should be restricted". The judge said paragraph 134 of the NPPF, which requires any "less than substantial harm to the significance of a designated heritage asset" to be "weighed against the public benefits of the proposal", was a 'specific policy' for these purposes.

Having found that 'less than substantial harm' would be caused to the setting of a Grade II-listed building, the judge said Anstey had erred in law by failing to carry out the balancing exercise outlined in paragraph 134.

The judge noted that the test carried out by the inspector is "weighted in favour of the benefits of development", requiring that adverse impacts must 'significantly and demonstrably' outweigh the benefits of a scheme in order for planning permission to be refused. However, in the ordinary balancing test required under paragraph 134, he said "the considerable weight to be given to the harm done to the ... farm complex ... may make a critical difference."

Being unable to satisfy himself that the inspector would have reached the same conclusion if he had not erred in law, Mr Justice Coulson quashed the inspector's decision to grant permission for the proposed development.

Planning expert Jennifer Holgate of Pinsent Masons, the law firm behind Out-Law.com, said: "In the aftermath of the Barnwell Manor and Forge Field decisions, focus has very much been on the 'having special regard' to the desirability of preserving the setting of designated heritage assets, in accordance with legislation."

"This case sets out in stark terms that once paragraph 14 is engaged, it contains two clear elements and it is clear from the word "or" that they are alternatives," said Holgate. "The first requires a decision maker to consider if the adverse impacts of granting consent would significantly and demonstrably outweigh the benefits when assessed against the policies of the Framework taken as a whole. The second is whether there are specific policies in the NPPF that would mean development should be restricted. It will be important for any environmental impact assessment, heritage statement and planning statement to ensure that the test is fully and correctly applied and then this is transposed robustly by the decision maker."

"It is also very interesting to note that the judgment reinforces the importance of Forge Field, making clear that when any development will harm a listed building or its setting, that harm alone gives rise to a strong presumption against the grant of planning permission," said Holgate. "Again, careful interpretation of this case is required as part of the planning application process."