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Cases

Bramshill: the NPPF, isolated homes in the countryside, and the assessment of harms and benefits to heritage assets

11.03.2021

Introduction

1. The Court of Appeal's judgment in Bramshill v SSHCLG [2021] EWCA Civ 320 addresses the interpretation and application of policies in the National Planning Policy Framework ("NPPF") against the development of isolated homes in the countryside and on the assessment of harm and benefit to heritage assets. For anyone dealing with development proposals which engage these parts of the NPPF, it is an important judgment.

2. The case concerned a complicated array of development proposals for Bramshill Park in Hampshire. The site includes a grade I listed Jacobean mansion, other listed and unlisted buildings and a grade I registered park and garden. The development proposals included plans to convert the mansion into apartments and to construct new houses on the site in place of some of the existing buildings. The site had previously been used as a police training college. Paragraphs [1] – [4] of the judgment provide a fuller summary of the factual background and appeals.

Isolated homes in the countryside

3. The first main issue addressed by the Court concerned the interpretation and application of the policies in the NPPF concerning isolated homes in the countryside. The Appellant argued that the inspector misinterpreted paragraph 79 of the NPPF. The Court did not accept this submission.

4. The Court held, perhaps unsurprisingly, that the inspector had been correct to adopt the interpretation given to the predecessor to that policy by the Court of Appeal in Braintree District Council v Secretary of State for Communities and Local Government [2018] EWCA Civ 610, [2018] 2 P. & C.R. 9. At [32] of Bramshill, the Court affirmed that the essential conclusion in Braintree expressed at [42] was that in determining whether a particular proposal is for "isolated homes in the countryside", the decision-maker must consider "whether [the development] would be physically isolated, in the sense of being isolated from a settlement". What is a "settlement" and whether the development would be "isolated" from a settlement are both matters of planning judgment for the decision-maker on the facts of the particular case.

5. The Court rejected the submission that there was any conflict between the understanding of the policy as expressed in Braintree and the obiter remarks at paragraph 15 of Dartford Borough Council v Secretary of State for Communities and Local Government [2017] EWCA Civ 141, [2017] P.T.S.R. 737. Dartford was a judgment concerned with the meaning of previously developed land, not isolated homes in the countryside. In Dartford the Court of Appeal held that the expression "[land] in built-up areas" could not mean "land not in built-up areas" and did not find this interpretation to be in conflict with the policies concerning isolated dwellings.

6. At [33]-[34] the Court held that to adopt remoteness from other dwellings, instead of remoteness from a settlement, as the test for "isolated homes in the countryside" would seem inconsistent with the Government's evident intention in producing the policy in paragraph 79 as:

"33...It would mean that the policy would not apply to a development of housing in the countryside – large or small – on land next to an individual dwelling remote from the nearest settlement, because although the new homes might be "isolated" from the settlement, they would not be "isolated" from existing development. It would prevent the policy from applying to the development of additional dwellings, one or two at a time, on sites next to other sporadic rural housing, again on the basis that they would not then be "isolated". It might even prevent the policy from applying to a proposal for two or more dwellings on a single, undeveloped site in the countryside, because none of them would itself be "isolated" from another dwelling, and the development as a whole would therefore not be "isolated". If this were so, only the development of a single dwelling, on its own, separate from any other dwelling already built or proposed nearby, would engage the policy. This would be hard to reconcile with the Government's aim, as policy-maker, to "promote sustainable development in rural areas"."

7. The Court found that the policies concerning isolated homes in the countryside align with paragraph 72 of the NPPF concerning larger scale developments such as new settlements:

"34. The policy in paragraphs 78 and 79 of the NPPF aligns with that in paragraph 72. Their common theme is the need for the planning system to promote sustainably located housing development. Neither policy favours the unplanned and unsustainable development of housing in the countryside, away from existing settlements. As paragraph 72 indicates, it is for plan-making to achieve the "supply of large numbers of new homes" by "planning for larger scale development, such as new settlements or significant extensions to existing villages and towns, provided they are well located and designed, and supported by the necessary infrastructure and facilities". This is within the remit of "strategic policy-making authorities". It is their job to "identify suitable locations for such development where this can help to meet identified needs in a sustainable way"."

8. Therefore, in summary, on isolated homes in the countryside, Bramshill confirms that:

a. the correct interpretation of the concept of "isolated homes in the countryside" is that set out in paragraph 42 of Braintree;
b. this requires the decision maker to consider whether the development would be physically isolated, in the sense of being isolated from "a settlement" rather than being isolated from "other dwellings"; and
c. the questions of: (i) what is a "settlement"; and (ii) whether the development would be "isolated" from a settlement, are both matters of planning judgment for the decision-maker on the facts of the particular case.

9. At [35] – [48] the Court considered the inspector's reasoning which led her to the conclusion that residential development in this location would result in new isolated housing in the countryside. Her reasoning was clear and complete and demonstrated that she had understood the policy framework correctly and applied it impeccably to the facts of the case.

The assessment of harm and benefit to heritage assets

10. The second main issue addressed by the Court was the appropriate approach to the assessment of harms and benefits to heritage assets. This is a matter which is often the subject of disagreement in planning appeals. The Court's consideration of these issues is important, detailed, and worth careful study. The following is only a summary.

11. The Appellant pursued two main arguments concerning the assessment of harms and benefits to heritage assets - see [69]-[70]. Firstly, that the inspector had erred in failing to carry out a "net" or "internal" heritage balance. It was said that only if "overall harm" emerges from the weighing of "heritage harms" against "heritage benefits" must the "other public benefits" of the development be weighed against that "overall harm" under the policy in paragraph 196 of the NPPF. By reference to the Court of Appeal's judgment in R. (on the application of Palmer) v Herefordshire Council [2016] EWCA Civ 1061, [2017] 1 W.L.R. 411, this was referred to by the Appellant as "the Palmer principle". Secondly, it was argued that the inspector should have given "great weight" to the "heritage benefits", to reflect the "great weight" that paragraph 193 of the NPPF requires to be given to the "conservation" of a designated heritage asset. The Court rejected both of these arguments.

12. At [71] the Court held that it is not stipulated, or implied, in section 66(1) of the Listed Building Act, or suggested in the relevant case law, that a decision-maker must undertake a "net" or "internal" balance of heritage-related benefits and harm as a self-contained exercise preceding a wider assessment of the kind envisaged in paragraph 196 of the NPPF. The Court did not find any justification for reading such a requirement into NPPF policy.

13. At [84] the Court rejected the submission that the inspector failed to attach lawful weight to the benefits for heritage assets, contrary to the concept of "conservation" in the NPPF. The inspector had directed herself that, as a general principle applicable to all the heritage assets she was dealing with, that she had to give "great weight ... to the [designated heritage] asset's conservation". The Court held that with this general self-direction in mind the inspector went on to undertake a proper weighting of both harm and benefits to each of the heritage assets she had to consider. Having directed herself impeccably on the law and on the relevant policies, the Court found that she was entitled to exercise her own planning judgment in attributing appropriate weight to the particular benefits of the proposals before her, including their benefits for heritage assets.

14. In setting out her approach, see [65] and [82] of the judgment, the inspector noted that the proposals before her were complex with multiple works involved. She noted that some of the benefits to heritage assets were not proposed within an individual application but put forward as a part of other developments subject to separate decisions. She, therefore, adopted a straightforward application of paragraphs 190 and 193-196 of the NPPF. Firstly, she identified the significance of the assets. She then assessed whether each development proposal would, of its own doing, lead to substantial or less than substantial harm to that significance. Subsequent to making this assessment of harm, she then considered whether this harm is outweighed by the public benefits of the individual proposal and provided in other proposals subject to other decisions. In weighing the public benefits against the identified harm, she included heritage benefits and took all the public benefits together and weighed them against harm.

15. The Court held at [82]-[83] that the inspector's methodical approach to the proposals before her could not be faulted and, in the circumstances of the case, it was the most realistic approach. It reflected a correct understanding and lawful application of the NPPF policies and succeeded in discharging the duty in section 66(1).

16. In reaching this conclusion the Court gave clear and detailed guidance on how to approach the assessment of harms and benefits to heritage assets. In particular:

a. There is no prescribed single, correct approach to the balancing of such harm against any likely benefits – or other material considerations weighing in favour of a proposal. [72]
b. However, as accepted in Jones v Mordue [2015] EWCA Civ 1243, [2016] 1 W.L.R. 2682, if the approach in paragraphs 193 to 196 of the NPPF is followed, the section 66(1) duty is likely to be properly performed. [72]
c. The weight to be given to the conservation of heritage assets in a particular case is a matter of planning judgment, bearing in mind the relevant case law, including Sullivan L.J.'s observations about "considerable importance and weight" in Barnwell Manor. [73]
d. The imperative of giving "considerable weight" to harm to the setting of a listed building does not mean that the weight to be given to the desirability of preserving it or its setting is "uniform". That will depend on the "extent of the assessed harm and the heritage value of the asset in question". These are questions for the decision-maker, heeding the basic principles in the case law. [75]
e. 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. The NPPF does not direct the decision-maker to adopt any specific approach to identifying "harm" or gauging its extent. [74]
f. Identifying and assessing any "benefits" to weigh against harm to a heritage asset are also matters for the decision-maker. What amounts to a relevant "public benefit" in a particular case is, again, a matter for the decision-maker. So is the weight to be given to such benefits as material considerations. A potentially relevant "public benefit" can include a heritage-related benefit as well as one that has nothing to do with heritage. These can all be taken together and weighed against the harm. [76]

17. All told, the judgment clearly explains many important principles of approach relevant to anyone seeking to apply the statutory duty in section 66(1) of the Listed Building Act and the policies for heritage assets in the NPPF.

Development Plan Policies

18. Finally, the Court considered at [86] – [90] a challenge to the inspector's treatment of the weight to be attached to the relevant local plan policies concerning heritage assets. These policies did not contain the balancing exercise set out in the NPPF. However, the Court held that the absence of an explicit reference to striking a balance between "harm" and "public benefits" in the local plan policies does not put them into conflict with the NPPF, or with the duty in section 66(1) and that they are directed to the same basic objective of preservation. The policies did not preclude a balancing exercise as part of the decision-making process. The Inspector's conclusion that those policies should be given significant weight was a lawful one.

The full text of the judgment is available HERE. 

Note:

Ben Du Feu appeared for Historic England in the Court of Appeal. Ben was led by Richard Ground QC in the High Court. Richard appeared for Historic England with Emma Dring at the public inquiry.