Former Police college judgment gives clarity on heritage planning

What’s going on ‘ere then…?

A judgment from the Court of Appeal, involving the ex-Police college at Bramshill in Hampshire (Bramshill Ltd v SoSHCLG [2021] EWCA Civ 320) gives some important insight into how heritage harm should be approached.

The large estate of around 106 hectares contains a Grade-I listed Jacobean mansion and various other buildings and a Grade-I registered park and garden. The developers had proposed a range of different potential schemes for the site – seven in total – including the conversion of the mansion into apartments, or a single dwelling, or to office space; or, the construction of 235 houses in place of some of the existing (non-listed) buildings. There were also one or two enforcement issues – 25 enforcement notices in total.

From this development soup, [deep breath], 33 appeals were heard by the Planning Inspectorate over the course of a 26-day (!) inquiry.

The decision, published in January 2019, allowed some of the appeals for development (single dwelling or office space), allowed 18 appeals against enforcement notices, and dismissed the remaining seven.

The developer appeals the decisions to the High Court the dismissal of four of the appeals for planning permission and 8 of the enforcement notice appeals. The High Court upholds the challenges relating to one of the applications for planning permission and the eight against the enforcement notices. The appeals against three of the planning permission applications and one on costs were dismissed. The Court of Appeal case was against those parts of the claim the High Court dismissed… [exhale].

When deciding an application for planning permission, there is a legal requirement to “have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest” (s.61(1) Listed Buildings Act).

In policy, we are told that less than substantial harm to a heritage asset must be weighed against public benefits (NPPF §196). Finally from the case law – and it is a rich seam to mine – we get the direction that heritage harm should be given “considerable importance and weight”, and that to preserve the building is to do no harm.

The issue in this case was about net heritage harm – where development causes some heritage harm and also some heritage benefit, is that weighed first to decide if there is any net harm? If there is net harm, the decision maker moves on to the statutory duty and policy tests above.

The answer from the Court of Appeal was that it isn’t a legal or policy requirement to perform this net harm exercise. However, if an inspector choses to go down that path, it may comply with the legal and policy requirements.

The judgment also gives helpful direction on other aspects of heritage planning:

• Matters of weight to be given to the conservation of the asset is for the decision maker
• Whether harm is substantial or less than substantial also falls to the decision maker with no one approach to assessing the harm
• The benefits to be weighed against any heritage harm can include any heritage benefits
• A reminder that the heritage balances in policy and the statutory duty is only part of the decision on a planning application. The application must still be decided in accordance with the development plan and any other material considerations

A lot is left to the judgement of the decision maker, but this helpful judgment will give applicants and planning authorities more clarity.