Author: Sadie Pitman
The National Planning Policy Framework (NPPF) tells us that, in order for a local planning authority to come to a decision on a planning application, applicants should describe the significance of any heritage assets that will be affected by the application and local authorities should assess the significance of said affected heritage assets (see paragraphs 189-190).
Paragraph 193 of the NPPF goes on to state that, when considering the impact of a proposed development on the significance of a designated heritage asset, "great weight" should be given to the asset's significance, irrespective of whether any potential harm amounts to "substantial harm, total loss or less than substantial harm".
A recent High Court decision has helped to clarify where "negligible harm" falls in this context.
In R (on the application of James Hall and Company Limited) v City of Bradford Metropolitan District Council [2019] EWHC 2899 (Admin), the Claimant was challenging the Council's decision to grant planning permission which allowed the demolition and re-development of a fire station near a conservation area and a Grade II listed building.
There was no dispute in the case that the Site, being adjacent to a conservation area, involved development which may affect a heritage asset. This therefore meant that paragraphs 189-190 of the NPPF was applicable.
One of the interested parties submitted, in support of the application, a Heritage Policy Assessment concluding that the harm to the conservation area and heritage assets was "minimal". Accordingly, the applicant sought to persuade the Court that the harm caused would be "negligible" and that a de minimis approach should be followed.
The Court profusely disagreed stating that there are three clear categories of harm in the NPPF – substantial harm, less than substantial harm and no harm. There are no intermediate categories.
Plainly there will be cases with harm to heritage assets which might otherwise be described as "very much less than substantial" which nevertheless fall within the category of less than substantial harm. Accordingly, paragraph 193 of the NPPF would be engaged and the local planning authority would be required to attach "great weight" to the asset's significance.
In the facts of the case, such an assessment was lacking and planning permission was duly quashed.
Naturally, it will be a matter of planning judgment as to the extent of the "great weight" to be given to the significance of any affected heritage asset, but the fact of the matter is that if there is some harm, be it minimal or negligible, the local planning authority should take this into consideration when determining the planning application.
If you require legal advice on heritage assets or any other planning matters, contact our expert planning lawyers.
