The IHBC’s consultation consultant, James Caird, has drawn attention to recent English case law relating to legal interpretations of key heritage concepts such as ‘significance’, ‘special’, and ‘harm’ that, though tested under England’s former PPS regime, usefully inform current aspects of heritage management, including that under England’s National Planning Policy Framework (NPPF).
This case covered a Planning Inspector’s determination and revolved around the fact that the Inspector had failed to consider adequately the duty to ‘have special regard’ to the setting of the Listed Building. It concluded that ‘special regard’ is just that: more weight than ordinary material considerations.
The judgement, made in the High Court case of East Northants & others v SoSCLG & others, included in its conclusions that:
‘the Inspector did not at any stage in the balancing exercise accord ‘special weight’, or considerable importance to ‘the desirability of preserving the setting’. He treated the ‘harm’ to the setting and the wider benefit of the wind farm proposal as if those two factors were of equal importance. Indeed, he downplayed ‘the desirability of preserving the setting’ by adopting key principle (i) of PPS22, as a ‘clear indication that the threshold of acceptability for a proposal like the one at issue in this appeal is not such that all harm must be avoided’ (paragraph 86). In so doing, he applied the policy without giving effect to the section 66(1) duty, which applies to all listed buildings, whether the ‘harm’ has been assessed as substantial or less than substantial.’
For the reasons set out above, I have concluded that the Inspector erred in law by not giving effect to the duty under section 66(1) P(LBCA)A 1990 when carrying out the balancing exercise.’
See the case at: LINK
