A Planning Court judge has given guidance on the interaction between the presumption in favour of sustainable development and the restriction on development affecting heritage assets. Brian Hurwitz analyses the ruling
In the recent decision of Forest of Dean District Council v Secretary of State for Communities and Local Government and Gladman Developments Limited  EWHC 421 (admin), Mr Justice Coulson considered the interaction in the National Planning Policy Framework (NPPF) between the presumption in favour of sustainable development and the restriction on development affecting heritage assets. These are contained respectively in paragraphs 14 and 134 of the NPPF.
The former presumes that a decision-taker should grant planning permission where the development plan is silent, absent or relevant policies are out of date. This is rebutted if any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the NPPF policies taken as a whole (Limb 1); or specific policies in the NPPF indicate that development should be restricted (Limb 2). The court’s decision covered Limb 2. Paragraph 134 of the NPPF applies where a development proposal leads to less than substantial harm to the significance of a designated heritage asset. It requires this harm to be weighed against the public benefits of the proposal, including securing its optimum viable use.
Mr Justice Coulson considered that paragraph 134 is a policy that indicates that development should be restricted. He concluded that it does not refer to the presumption in favour of development and that the presumption does not apply. He held that paragraph 134 is a policy restricting development, per Limb 2. He followed the approach taken in a number of recent cases on heritage assets, including that of R (Forge Field Society) v Sevenoaks DC  EWHC 1895 (admin) including the requirement that the decision-maker must give the harm (to a listed building) considerable importance and weight. He held that the inspector, in deciding to grant planning permission, had failed to undertake the ordinary balancing exercise required by paragraph 134. The inspector undertook the ‘weighted balancing exercise’ under Limb 1.
In Mr Justice Coulson’s view, there was a very real risk that the Forge Field guidance was not fully followed. As a result of the failure to properly consider the interaction between paragraphs 134 and 14 and the inspector’s use of the wrong test, the judge used his discretion to quash the appeal decision.
This case gives a valuable explanation of the approach to these important and conflicting principles. From the perspective of developers, it is a reminder of the importance given to preserving heritage assets and that they will also need to give proper consideration to this when seeking planning permission. In the case of local planning authorities, it reinforces their duties in assessing the impact of proposals that affect heritages assets, both in terms of the NPPF and the statutory duties under sections 66 and 72 of the Planning (Listed buildings and Conservation Areas) Act 1990.
Photo by jay-jerry