In a judgment handed down on 9 June 2017, the Planning Court (Kerr J) has considered the correct interpretation of para 141 NPPF for the first time – and has rejected the "literal meaning" of the Framework.
Para 141 states that local planning authorities should:
"... require developers to record and advance understanding of the significance of any heritage assets to be lost (wholly or in part) in a manner proportionate to their importance and the impact, and to make this evidence (and any archive generated) publicly accessible. However, the ability to record evidence of our past should not be a factor in deciding whether such loss should be permitted."
The claim was for judicial review of City of York Council's decision to grant planning permission for works to Clifford's Tower in York; a Grade I listed building and a scheduled monument which (together with other surrounding buildings) is recognised as "one of the most important heritage assets in the country". It is one of the nation's most visited heritage assets, yet the visitor experience is described as underwhelming. English Heritage applied for planning permission to carry out various works to improving the visitor experience, the most controversial element of which was the proposed visitor centre, which was to be partially buried within the motte. It would be necessary to excavate part of the motte, as well as some material beneath it in order to lay the foundations. Therefore part of the heritage asset would be lost.
The Council granted permission, finding that the public benefits and quality of the design outweighed the "less than substantial" harm, even giving that harm considerable importance and weight. In accordance with the second sentence of para 141, the Council imposed a condition requiring an archaeological mitigation scheme to be approved and discharged, to include measures for public access and engagement, post-excavation assessment and analysis, and publication and archive deposition.
The decision was challenged on the ground that the Council had unlawfully taken into account the benefits of recording evidence of the past. It was particularly noted that the officer's report referred to the public benefit to be achieved through the mitigation measures.
The Court agreed that the Council had taken the benefits of recording evidence into account, rejecting an argument that the Council had properly respected a distinction between justification for harm and mitigation once harm has been found justified, commenting that "the extent to which the detriment is mitigated is a determinant of the quantum of the public benefit".
However, the Court concluded that on a proper interpretation of para 141, the Council had not acted unlawfully in having regard to the public benefits of recording evidence of the past. Following an analysis of the historical development of the policy from its original incarnation in PPS 16 (Archaeology and Planning), through PPS 5 (Planning for the Historic Environment), and into para 141, and having regard to the surrounding context of chapter 12 NPPF, the Court said:
"the last sentence of that paragraph only makes good sense if interpreted so that the words "should not be a factor" are taken to bear the meaning "should not be a decisive factor", in deciding whether the harm to the asset should be permitted."
Even if the Council had acted unlawfully in having regard to the benefits associated with recording evidence, the decision was not finely balanced and the outcome would have been the same in any event. Therefore the planning permission would not have been quashed.
The case is significant not only because it is the first decision on para 141, but also because the Court has interpreted the NPPF by 'reading in' words which give it an effect which differs from the literal meaning. It is of interest to note that the Court's interpretation of para 141 brings the NPPF into line with the approach taken in the scheduled monument consent guidance published by DCMS, which says that:
"Though relevant, the potential to record evidence of the past is not considered by the Secretary of State to be an important factor in determining if SMC should be granted in such circumstances. Consequently it will normally be given little weight."
Decision makers are not therefore required to perform "mental gymnastics" in trying to separate out the benefits of recording and publicising information about a heritage asset from the benefits of enhancing the public's experience of the asset itself (an aim which is supported by other parts of chapter 12 NPPF). The Court's interpretation avoids the difficult – perhaps impossible – task of finding that mitigation measures are necessary to make the development acceptable, without at the same time taking account of the perceived benefits flowing from those same mitigation measures in the planning balance.
It may well prove quite difficult to identify in practice whether or not any particular factor is being treated as 'decisive', since the nature of planning decisions is that there will almost always be multiple factors pulling in different directions needing to be balanced.
Permission to appeal was refused by the High Court, and the Claimant has 14 days to seek permission to appeal from the Court of Appeal.
Emma Dring acted for English Heritage. Please click here to view the Judgment.