{"id":30123,"date":"2021-05-29T16:01:38","date_gmt":"2021-05-29T15:01:38","guid":{"rendered":"https:\/\/newsblogsnew.ihbc.org.uk\/?p=30123"},"modified":"2021-05-28T17:34:31","modified_gmt":"2021-05-28T16:34:31","slug":"ihbcs-imho-signpost-old-buildings-whats-new-in-heritage-planning-from-planoraks-and-the-queens-speech","status":"publish","type":"post","link":"https:\/\/newsblogs.ihbc.org.uk\/?p=30123","title":{"rendered":"IHBC\u2019s \u2018IMHO\u2019 \u00a0Signpost: Old buildings – What\u2019s new in heritage planning, from #planoraks and the Queen\u2019s Speech\u2019"},"content":{"rendered":"

\"\"<\/a>Zack Simons article on #planoraks runs through the \u2018juicy titbits learned about the forthcoming Planning Bill from last week\u2019s Queen\u2019s Speech\u2019.<\/h3>\n

<\/p>\n

\u2026 let\u2019s talk about buildings. Not just any buildings. Old buildings\u2026<\/span><\/em><\/h2>\n

\u2026 we need to get to the bottom of a few big ideas\u2026<\/span><\/em><\/h2>\n

#planoraks writes:<\/p>\n

First thing\u2019s first. Let\u2019s begin with a run-down of all of those juicy titbits we learned about the forthcoming Planning Bill from last week\u2019s Queen\u2019s Speech<\/a>. Are you ready? Can you wait? Here we go\u2026<\/p>\n

[Page left deliberately blank<\/em>].<\/p>\n

Of course, the fact that none of us have actually read the Planning Bill yet won\u2019t stand in the way of our political masters (who also, to be clear, haven\u2019t read it) telling us what a disaster it\u2019s going to be<\/a>. But more on all that noise in another post.<\/p>\n

In the meantime, let\u2019s talk about buildings. Not just any buildings. Old<\/em> buildings.<\/p>\n

Are you on Twitter? For the sake of your wellbeing and family life, I hope not. On the other hand, if you aren\u2019t, 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\u2019s a digital age. A virtual age. So when our Secretary of State has a big review to announce, don\u2019t check Hansard. Or the Ministry\u2019s website. Check his tweets<\/a>.<\/p>\n

Because it\u2019s there we see that our Secretary of State is – apparently – commissioning a \u201creview of how the Planning Inspectorate and planning policy considers and defends heritage<\/em>\u201d. Why? Because he\u2019s unhappy about this decision<\/a> last week: the decision by (you guessed it) his own Ministry<\/em> 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.<\/p>\n

Now in the Whitechapel case, the Inspector found – and the Secretary of State agreed – that the scheme would cause a net heritage benefit<\/strong>. They got to that view on the basis of something called an \u201cinternal\u201d heritage balance, i.e. where you balance heritage harms (and just<\/em> those harms – so e.g. physical changes to the listed building) against heritage benefits (and just<\/em> 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<\/a> because\u2026 in the end\u2026 there wasn\u2019t any harm.<\/p>\n

All of this hot on the heels of the Bramshill<\/em><\/a> case in the Court of Appeal a couple of months back, where the court had a long, hard look at precisely this issue of \u201cinternal\u201d heritage balancing. Argh. We\u2019re always told planning policy is supposed to be simple. And it\u2019s the trouble-making lawyers who keep getting in the way. But this area\u2026 well, it seems to\u2019ve gotten a bit out of hand.<\/p>\n

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<\/a> for a residential scheme at the Sydenham Hill Estate in South London promoted by the City of London because officers apparently didn\u2019t advise members correctly about built heritage. Why? Because the case officer hadn\u2019t fully<\/em> reported the consultation response of the Council\u2019s 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\u2019t mentioned the “clear and convincing justification<\/em>” required to justify any harm to the significance of a designated heritage asset. But come on. Did the officer really<\/em> need to say that? Was it unlawful not<\/em> to? Recalling that very wide berth Courts normally give planning officers in the way they formulate their reports to committee: on which see here<\/a>.<\/p>\n

Well, take note, friends. Because that Lewisham case isn\u2019t some kind of outlier. It\u2019s part of a multi-year trend. We saw a similar outcome last year in the Liverpool City Council<\/em><\/a> 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.<\/p>\n

So what\u2019s going on? What do the courts actually say<\/em> about all of this? And what exactly is the Secretary of State proposing to change?<\/p>\n

Ok. Deep breath. Let\u2019s start at the beginning – and if you stick with me, we\u2019ll get all the way to the end in 10 mostly pain-free steps:<\/p>\n

    \n
  1. \n

    We have legal duties to have special regard to the desirability of protecting listed buildings and their settings<\/a>, and also to pay special attention to the desirability of preserving or enhancing the character or appearance of conservation areas<\/a>.<\/p>\n<\/li>\n

  2. \n

    In 2014, in a wind farm case (remember those!) called Barnwell Manor<\/em><\/a>, the Court of Appeal said those legal duties mean that planning decision-makers must give “considerable importance and weight<\/em>” to those heritage issues when they strike their planning balance, and that creates a “strong presumption<\/em>” against granting planning permission. And so began a tidal wave of litigation (greatest hits included Forge Field<\/em><\/a>, Forest of Dean<\/em><\/a>, South Lakeland<\/em><\/a>, and Palmer<\/em><\/a> 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\u2019t take the right approach to impacts on listed buildings or conservation areas.<\/p>\n<\/li>\n

  3. \n

    Marrrrvellous – you may be thinking – as if we didn\u2019t have enough decision-making duties to worry about already. Well, here\u2019s the good news: the Court of Appeal confirmed in the Mordue<\/em><\/a> case in 2015 that, generally anyway, a planning decision-maker who works through the \u201cfasciculus<\/em>\u201d (Latin for a bundle) of heritage policies in the NPPF will have met these statutory duties. Hooray. OK. So what\u2019s in our fasciculus?<\/p>\n<\/li>\n

  4. \n

    Here it is<\/a>. In a nutshell, we\u2019re told that (a) great weight gets given to conserving \u201cheritage assets\u201d, (b) if there\u2019s substantial harm to, or total loss of the significance of, a designated asset, then permission should be refused \u201cunless it can be demonstrated that the substantial harm or total loss is necessary to achieve substantial public benefits that outweigh that harm or loss<\/em>\u201d or the applicant can meet a series of tests designed to show the the building has no other viable use, and (c) if there\u2019s less than substantial harm to a designated heritage asset, then you weigh that against the scheme\u2019s public benefits.<\/p>\n<\/li>\n

  5. \n

    So far so good. But to understand all of that, we need to get to the bottom of a few big ideas. \u201cHeritage asset<\/em>\u201d, \u201cdesignated heritage asset<\/em>\u201d and \u201csetting<\/em>\u201d are all defined here<\/a>. As is \u201csignificance<\/em>\u201d in the heritage context – i.e. the value of a heritage asset because of its heritage interest. And that\u2019s an important one. Because the NPPF doesn\u2019t 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\u2019s visual \u201csetting<\/em>\u201d. What really matters is the extent to which that view contributes to the asset\u2019s significance<\/em> – a point made in the very useful Historic England guidance on this topic here<\/a>. You\u2019ll also want to scan the Planning Practice Guidance on the historic environment: here<\/a>.<\/p>\n<\/li>\n

  6. \n

    But what neither the NPPF nor the PPG do is actually define what \u201csubstantial<\/em>\u201d means. Ah no. That would\u2019ve been too easy. The High Court had a go in the Bedford v Nuon<\/em>\u00a0case<\/a> in 2013, where Mr Justice Jay said that \u201cfor 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<\/em>\u201d. And that \u201cone 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<\/em>\u201d. 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<\/em><\/a> 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 \u201cwhat 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<\/em>.\u201d That kind of open-ended approach is consistent with the PPG<\/a>, which tells us not-so-helpfully that it\u2019s all a matter of judgment and that substantial harm is a \u201chigh test\u201d.<\/p>\n<\/li>\n

  7. \n

    So what about schemes where on the one hand there\u2019s some harm to a building\u2019s significance (if e.g. you\u2019re 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 \u201cconsiderable importance and weight<\/em>\u201d to the harm? Is there any harm at all? Or if the heritage benefit outweighs the harm, is that a net<\/em> benefit? This is the \u201cinternal heritage balance\u201d debate which has been raging for years. To cut to the chase: the other week in Bramshill<\/em><\/a>, Lord Justice Lindblom said that (a) there\u2019s no requirement<\/em> to undertake an internal heritage balance, albeit you can<\/em> legally do it, but still (b) he didn\u2019t 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\u2019re 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\u2019t dictated by the heritage chapter of the NPPF.<\/p>\n<\/li>\n

  8. \n

    In the Whitechapel Bell Foundry case, the planning inspector undertook a classic \u201cinternal balance<\/em>\u201d, so found that there was no net heritage harm, so there was no balancing exercise to do under either \u00a7195 NPPF or \u00a7196 NPPF. Because there was no net harm<\/em>. 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\u2019d be outweighed by public benefits. Maybe that makes Lord Justice Lindblom\u2019s point – it often won\u2019t matter which way round you look at this. But what\u2019s interesting is that the Secretary of State delved into this debate, and found that \u201cthe approach of an internal heritage balance is a perfectly legitimate one<\/em>\u201d. 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.<\/p>\n<\/li>\n

  9. \n

    Now, what are the lessons of the Lewisham<\/em><\/a> and Liverpool<\/em><\/a> cases? First thing\u2019s first – whether you\u2019re writing it or relying on it, make darned sure your committee report fully and accurately records the conservation officer\u2019s consultation response. Basic but really important. And while you\u2019re 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\u2019re listing the relevant policies, but also when you come onto the balancing<\/em> exercise. Again, basic stuff. But we\u2019ve seen so many schemes, so much time and effort, all trickle down the drain because of these easily fixable omissions from officers\u2019 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.<\/p>\n<\/li>\n

  10. \n

    So what exactly is Robert Jenrick proposing to achieve with his promise of a review<\/a>? It\u2019s going to be – so we\u2019re told – a review of \u201chow the Planning Inspectorate and planning policy considers and defends heritage<\/em>\u201d. Well, let\u2019s be fair – all the Planning Inspectorate did in Whitechapel Bell Foundry was to apply<\/em> national policy in a way which was endorsed by the Secretary of State\u2019s team at MHCLG. So not too much to review, there, I\u2019d have thought. And all our national heritage policy<\/em> really does is to give us a way of working through the thicket of our legal duties: see Mordue<\/em><\/a> above. So this isn\u2019t really<\/em> about PINS. Or about policy. It\u2019s about law. And if the Secretary of State wants a real change, in the end he\u2019s going to have to look at the Listed Buildings Act<\/a>. Indeed, reforming that act was on the shopping list of reforms proposed in the Planning White Paper. But what will that reform actually look<\/em> like? What outcomes might it actually seek to achieve which are any different to what we\u2019re doing already? Well. Your guess is as good as mine. One thing\u2019s for sure: not a word of this was mentioned in the Queen\u2019s Speech. But then nor was anything else. So. For now anyway. We\u2019d better keep refreshing Twitter.<\/p>\n<\/li>\n<\/ol>\n

    If you\u2019re 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 \u201cThe Future of Heritage Planning: the effects of the Bramshill case<\/em>\u201d. Free Zoom registration here<\/a>. Do come – it\u2019s going be a really interesting discussion, and so<\/em> much to cover.<\/p>\n

    In the meantime, stay well #planoraks, I hope you\u2019re enjoying this gradual tilt back in the direction of \u201cnormal\u201d life (this is the first post I\u2019m writing from my actual real-life Chambers on Fleet Street for many, many months), and – of course – #keeponplanning!<\/p>\n

    Read more….<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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