World Heritage Day 2022

19 Apr 2022

18th April 2022 is World Heritage Day (“International Day for Monuments and Sites”).

In this special bulletin we bring together a few topical developments in the world of heritage planning.

1. Holocaust memorial judgment (London Historic Parks and Gardens Trust v Minister of State for Housing [2022] EWHC 829 (Admin)

• New memorial proposed within Grade II Registered Park and Garden containing Grades I, II* and II listed structures, and within the setting of various other heritage assets including the Palace of Westminster – Grade I listed and part of a WHS.
• Permission granted by SoS on basis that the public benefits manifestly outweighed the harm to heritage assets.
• Challenged on the basis that the Inspector (and thus SoS) had taken an incorrect approach to the identification of ‘substantial harm’ and thus applied the wrong approach when performing the heritage balance.
• Claimant specifically criticised references to the judgment of Jay J in Bedford Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 2847 (Admin), where it was suggested that substantial harm would only arise if “very much if not all, the significance [is] drained away” as result of the impact of the proposal.
• Court found that the Inspector’s approach to calibrating harm had been “sophisticated and, at times, poetic” and his reasoning had not depended on Bedford. Rather he had formulated his own test, looking for a “serious degree of harm to the asset’s significance” and had referred to Bedford as a cross-checking exercise.
• Properly read, Bedford did not purport to add a ‘gloss’ to the language of the NPPF on substantial harm and did not require significance to be “drained away“. Those had been the Inspector’s words, although Jay J had seen them as according with what he considered to be the correct approach.
• Claim succeeded and permission quashed due to conflict with a Victorian statute for the preservation of the proposed location as a public garden. Whilst constraints imposed by other statutory regimes are not normally a basis for refusing planning permission, in this case the deliverability of the proposal within the lifetime of holocaust survivors had been relied on by the Inspector and therefore he had erred in failing to have regard to the implications of the Victorian statute.
• Practitioners will be interested to note that the claim succeeded on this point notwithstanding that it had not featured in arguments between the main parties at the planning inquiry (although it had been raised at an earlier stage, so parties were aware of it, and had been referred to by a member of the public in written representations).

2. Less than substantial harm to heritage assets: how should decision makers express the nature and extent of the harm that is found?

• An interesting action brought last year against the decision of the Secretary of State to dismiss the appeal in relation to the redevelopment of 8 Albert Embankment (the London Fire Brigade HQ) for planning permission and listed building consent for a mixed use scheme.
• Permission to bring the action on all grounds was refused and the matter was not taken further by the applicant, but the case raised an interesting legal point following a change to the NPPG in relation to the issue of less than substantial harm.
• In July 2019 the NPPG in relation to the assessment of less than substantial harm was revised: Paragraph 18a-018 gives guidance on assessing the possibility of harm to a heritage asset. The revised version now includes the sentence:
“Within each category of harm (which category applies should be explicitly identified), the extent of the harm may vary and should be clearly articulated.”
• The Inspector described the effect of the development and the nature of the harm to the heritage assets and explained the impact of the development on that significance with reference to the two categories of harm. What neither the Inspector nor the SoS did was to state where, in the spectrum of less than substantial harm, the harm occurred.
• It is not unusual for heritage experts to express the level of harm to the significance of a heritage asset or its setting as being at the upper or lower end of the less than substantial harm category, but the utility of this approach remains questionable, bearing in mind that any finding of harm must be given considerable importance and weight (wherever it may be judged to fall within the spectrum). A strong presumption against the grant of planning permission arises: East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137.
• What is of real importance is that there has been a proper assessment of the substance and nature of the harm. The Court of Appeal has recently stated that there is no single or universal method for assessing harm in this context: City & Country Bramshill Ltd v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 320.
• In R (Shimbles) v Bradford Metropolitan Borough Council [2018] EWHC 195 (Admin), the court rejected a submission that a decision-maker needed to place the degree of harm on a spectrum, holding that the two categories of harm are adequate to enable the weighted balancing exercise to be carried out.
• This is consistent with the earlier Court of Appeal decision in Mordue v Secretary of State for Communities and Local Government [2015] EWCA Civ 1243, which endorsed the proposition that paragraphs 199-202 of the NPPF are in harmony with the duties in ss.66(1) and 72(1) of the LBA [28].
• Of course, the weight placed on the benefits is a matter of judgement for the decision maker acting reasonably. The balancing exercise requires that the heritage asset and its significance is shown to be properly understood and the harm to that significance carefully scrutinised and articulated: essential components of the reasoning process.
• Although both Mordue and Shimbles predated the change in the NPPG, there seems to be no justification for interpreting the NPPG it in a way that adds a gloss to the requirements of the NPPF in this regard.

3. New HE Tall Buildings guidance

On 4 March 2022 HE published the second edition of Advice Note 4 on Tall Buildings. This updates the previous (2015) version in a number of important ways:
• Greater emphasis on a plan-led approach to locating tall buildings , in line with NPPF and new Model Design Code and associated guidance. LPAs should develop policies to define what is meant by a ‘tall’ building and to identify locations where they will be acceptable (or indeed unacceptable) in principle. Such policies need to be based on an understanding of existing character and context and a proportionate evidence base.
• Greater emphasis on good design and the use of design codes and frameworks. Again this reflects developments in national policy. Design I a particularly important consideration for tall buildings given their prominence and visibility.
• Some support for the concept of tall building ‘clusters’ to minimise cumulative impacts on heritage while delivering townscape benefits.
• Support for greater use of technology, including 3D digital models, in the planning of tall buildings.