Old buildings: what’s new in heritage planning?
First thing’s first. Let’s begin with a run-down of all of those juicy titbits we learned about the forthcoming Planning Bill from last week’s Queen’s Speech. Are you ready? Can you wait? Here we go…
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Of course, the fact that none of us have actually read the Planning Bill yet won’t stand in the way of our political masters (who also, to be clear, haven’t read it) telling us what a disaster it’s going to be. But more on all that noise in another post.
In the meantime, let’s talk about buildings. Not just any buildings. Old buildings.
Are you on Twitter? For the sake of your wellbeing and family life, I hope not. On the other hand, if you aren’t, then how on earth are you supposed to find out about important new Government investigations into how we plan for our built heritage. This is the age we live in, friends. It’s a digital age. A virtual age. So when our Secretary of State has a big review to announce, don’t check Hansard. Or the Ministry’s website. Check his tweets.
Because it’s there we see that our Secretary of State is - apparently - commissioning a “review of how the Planning Inspectorate and planning policy considers and defends heritage”. Why? Because he’s unhappy about this decision last week: the decision by (you guessed it) his own Ministry upholding the recommendations of a senior planning inspector to grant planning permission and listed building consent to refurbish the Grade II* listed Bell Foundry on Whitechapel Road (which closed down back in 2017 due to a lack of demand for tower bells - another sign of changing times) with new workshops, a cafe and event space and to erect a hotel, restaurant and work-space next door.
Now in the Whitechapel case, the Inspector found - and the Secretary of State agreed - that the scheme would cause a net heritage benefit. They got to that view on the basis of something called an “internal” heritage balance, i.e. where you balance heritage harms (and just those harms - so e.g. physical changes to the listed building) against heritage benefits (and just those benefits - so e.g. repairing and maintaining the listed building, and bringing it back into use as a foundry). The balance tilted in favour of the scheme. Which meant there was no need to consider national policy on what you do if you find heritage harm because… in the end… there wasn’t any harm.
All of this hot on the heels of the Bramshill case in the Court of Appeal a couple of months back, where the court had a long, hard look at precisely this issue of “internal” heritage balancing. Argh. We’re always told planning policy is supposed to be simple. And it’s the trouble-making lawyers who keep getting in the way. But this area… well, it seems to’ve gotten a bit out of hand.
And to make matters worse, the run of permissions quashed in the courts for heritage reasons continues. Only this week, the High Court struck down a major consent for a residential scheme at the Sydenham Hill Estate in South London promoted by the City of London because officers apparently didn’t advise members correctly about built heritage. Why? Because the case officer hadn’t fully reported the consultation response of the Council’s heritage officer, who objected to the scheme on the basis of harm to the Conservation Area and the setting of nearby listed buildings. The case officer also hadn’t mentioned the "clear and convincing justification" required to justify any harm to the significance of a designated heritage asset. But come on. Did the officer really need to say that? Was it unlawful not to? Recalling that very wide berth Courts normally give planning officers in the way they formulate their reports to committee: on which see here.
Well, take note, friends. Because that Lewisham case isn’t some kind of outlier. It’s part of a multi-year trend. We saw a similar outcome last year in the Liverpool City Council case. And there, like in Lewisham, a permission for a housing scheme was quashed because of the way heritage matters were reported to a planning committee.
So what’s going on? What do the courts actually say about all of this? And what exactly is the Secretary of State proposing to change?
Ok. Deep breath. Let’s start at the beginning - and if you stick with me, we’ll get all the way to the end in 10 mostly pain-free steps:
We have legal duties to have special regard to the desirability of protecting listed buildings and their settings, and also to pay special attention to the desirability of preserving or enhancing the character or appearance of conservation areas.
In 2014, in a wind farm case (remember those!) called Barnwell Manor, the Court of Appeal said those legal duties mean that planning decision-makers must give "considerable importance and weight" to those heritage issues when they strike their planning balance, and that creates a "strong presumption" against granting planning permission. And so began a tidal wave of litigation (greatest hits included Forge Field, Forest of Dean, South Lakeland, and Palmer but there were scores of cases) challenging whether decision-makers had understood all of this correctly. And lots of those challenges succeeded - permissions quashed left, right and centre, because they didn’t take the right approach to impacts on listed buildings or conservation areas.
Marrrrvellous - you may be thinking - as if we didn’t have enough decision-making duties to worry about already. Well, here’s the good news: the Court of Appeal confirmed in the Mordue case in 2015 that, generally anyway, a planning decision-maker who works through the “fasciculus” (Latin for a bundle) of heritage policies in the NPPF will have met these statutory duties. Hooray. OK. So what’s in our fasciculus?
Here it is. In a nutshell, we’re told that (a) great weight gets given to conserving “heritage assets”, (b) if there’s substantial harm to, or total loss of the significance of, a designated asset, then permission should be refused “unless it can be demonstrated that the substantial harm or total loss is necessary to achieve substantial public benefits that outweigh that harm or loss” or the applicant can meet a series of tests designed to show the the building has no other viable use, and (c) if there’s less than substantial harm to a designated heritage asset, then you weigh that against the scheme’s public benefits.
So far so good. But to understand all of that, we need to get to the bottom of a few big ideas. “Heritage asset”, “designated heritage asset” and “setting” are all defined here. As is “significance” in the heritage context - i.e. the value of a heritage asset because of its heritage interest. And that’s an important one. Because the NPPF doesn’t protect e.g. the view of an old building for its own sake. Or because the view can be seen from part of the building’s visual “setting”. What really matters is the extent to which that view contributes to the asset’s significance - a point made in the very useful Historic England guidance on this topic here. You’ll also want to scan the Planning Practice Guidance on the historic environment: here.
But what neither the NPPF nor the PPG do is actually define what “substantial” means. Ah no. That would’ve been too easy. The High Court had a go in the Bedford v Nuon case in 2013, where Mr Justice Jay said that “for harm to be substantial, the impact on significance was required to be serious such that very much, if not all, of the significance was drained away”. And that “one was looking for an impact which would have such a serious impact on the significance of the asset that its significance was either vitiated altogether or very much reduced”. That approach is regularly endorsed by planning inspectors and the Secretary of State, including in the Whitechapel Bell Foundry case just last week. On the other hand, in the Bramshill case in the Court of Appeal (which, of course, trumps the High Court so we all need to listen with care), Lord Justice Lindblom left this issue open. He said that “what amounts to "substantial harm" or "less than substantial harm" in a particular case will always depend on the circumstances. Whether there will be such "harm", and, if so, whether it will be "substantial", are matters of fact and planning judgment.” That kind of open-ended approach is consistent with the PPG, which tells us not-so-helpfully that it’s all a matter of judgment and that substantial harm is a “high test”.
So what about schemes where on the one hand there’s some harm to a building’s significance (if e.g. you’re knocking bits of it down), but on the other there are heritage benefits (if e.g. your scheme maintains what remains of the building into the future and gives it a viable use). Do you have to give “considerable importance and weight” to the harm? Is there any harm at all? Or if the heritage benefit outweighs the harm, is that a net benefit? This is the “internal heritage balance” debate which has been raging for years. To cut to the chase: the other week in Bramshill, Lord Justice Lindblom said that (a) there’s no requirement to undertake an internal heritage balance, albeit you can legally do it, but still (b) he didn’t think it mattered much whether you do it or not, because (c) in the end, if public benefits - including heritage benefits - outweigh the harm, then you may, depending on how much harm we’re talking about, decide to grant permission anyway. And whether you do or not is a matter of planning judgment, not law. And that judgment isn’t dictated by the heritage chapter of the NPPF.
In the Whitechapel Bell Foundry case, the planning inspector undertook a classic “internal balance”, so found that there was no net heritage harm, so there was no balancing exercise to do under either §195 NPPF or §196 NPPF. Because there was no net harm. Still, recognising the lack of clarity in this nook of the caselaw, he went onto consider the alternative case, i.e. if there was net heritage harm, and found it’d be outweighed by public benefits. Maybe that makes Lord Justice Lindblom’s point - it often won’t matter which way round you look at this. But what’s interesting is that the Secretary of State delved into this debate, and found that “the approach of an internal heritage balance is a perfectly legitimate one”. But he also ended up finding - on the facts of that case - that looked at either way, whether the internal balance was undertaken or not, the benefits justified granting planning permission.
Now, what are the lessons of the Lewisham and Liverpool cases? First thing’s first - whether you’re writing it or relying on it, make darned sure your committee report fully and accurately records the conservation officer’s consultation response. Basic but really important. And while you’re at it, make sure you mention (a) the statutory duties, (b) the key policy duties I list above, including the need to give great weight to the conservation of heritage assets, and (c) remember all that great weight stuff not only when you’re listing the relevant policies, but also when you come onto the balancing exercise. Again, basic stuff. But we’ve seen so many schemes, so much time and effort, all trickle down the drain because of these easily fixable omissions from officers’ reports. Will cases like the Lewisham judgment lead to unhelpfully long reports? I think they will. And unnecessarily defensive drafting? Yep, that too. But better that than a permission which ends up being tossed into the virtual waste-paper basket by a High Court judge.
So what exactly is Robert Jenrick proposing to achieve with his promise of a review? It’s going to be - so we’re told - a review of “how the Planning Inspectorate and planning policy considers and defends heritage”. Well, let’s be fair - all the Planning Inspectorate did in Whitechapel Bell Foundry was to apply national policy in a way which was endorsed by the Secretary of State’s team at MHCLG. So not too much to review, there, I’d have thought. And all our national heritage policy really does is to give us a way of working through the thicket of our legal duties: see Mordue above. So this isn’t really about PINS. Or about policy. It’s about law. And if the Secretary of State wants a real change, in the end he’s going to have to look at the Listed Buildings Act. Indeed, reforming that act was on the shopping list of reforms proposed in the Planning White Paper. But what will that reform actually look like? What outcomes might it actually seek to achieve which are any different to what we’re doing already? Well. Your guess is as good as mine. One thing’s for sure: not a word of this was mentioned in the Queen’s Speech. But then nor was anything else. So. For now anyway. We’d better keep refreshing Twitter.
If you’re curious and have thoughts about any of this, can I cordially invite you to join me, along with some of the crack team-members from both Montagu Evans (Dr Chris Miele, and Rosie Adamson) and Herbert Smith Freehills (Matthew White, and Annika Holden) at 5pm on 25th May to talk about “The Future of Heritage Planning: the effects of the Bramshill case”. Free Zoom registration here. Do come - it’s going be a really interesting discussion, and so much to cover.
In the meantime, stay well #planoraks, I hope you’re enjoying this gradual tilt back in the direction of “normal” life (this is the first post I’m writing from my actual real-life Chambers on Fleet Street for many, many months), and - of course - #keeponplanning!
