The 2012 NPPF: A Digest of Decisions

Section 12 – Conserving and enhancing the historic environment

NPPF 126-141

Forest of Dean District Council v SSCLG [2013] EWHC 4052 (Admin), Lindblom J

There is no conflict between the statutory duty in s.66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and government policy regarding listed buildings as set out in the NPPF. [48]

North Norfolk District Council v SSCLG [2014] EWHC 279 (Admin), Robin Purchas KC
Dan Kolinsky appeared for the Secretary of State

I would respectfully agree with Mr Justice Lindblom [in Forest of Dean District Council v SSCLG, [2013] EWHC 4052 (Admin)] that, taken as a whole, the advice in the NPPF is consistent with [the correct approach to s.66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990)], having regard in particular to paragraphs 131 and 132 where it advises that great weight should be given to the conservation of a designated heritage asset and that clear and convincing justification should be required for any harm or loss. It is correct that Section 66(1) applies the presumptive desirability directly to the setting of a listed building, while in the NPPF the advice is directed to the significance of the asset itself. For present purposes that distinction is not of any significance. However it remains essential that in applying the subsequent advice in paragraph 134, which is expressed in terms of a balance rather than expressly referring to issues of weight and significance, the approach of the decision maker is consistent with the statutory obligation under Section 66(1). Thus the question should not be addressed as a simple balancing exercise but whether there is justification for overriding the presumption in favour of preservation.

However, following the simple balancing exercise under NPPF 134 does not mean that a decision-maker will ipso facto comply with the duties under s.66(1): [83]. It is necessary for a decision-maker to direct their mind to s.66(1): [85].

R (Perry) v LB Hackney [2014] EWHC 3499 (Admin), Patterson J
Alex Goodman and Richard Clarke appeared as Junior Counsel for the Claimant
Reuben Taylor KC appeared for the First Interested Party

“(1) the NPPF taken as a whole is consistent with the statutory duty in section 66(1) and 72(1) of the Listed Buildings Act; and (2) that the question to be addressed by a decision maker is not a simple balancing exercise but is one which is mindful of and applies the need to have “special regard” or “special attention” to the heritage assets whether under section 66(1) or 72(1). The requirement under section 70(2) of the TCPA to have regard to material considerations when granting planning permission is expressly subject to the section 66(1) and section 72(1) duty.” [120]

Colman v SSCLG [2013] EWHC 1138 (Admin), Kenneth Parker J
Zack Simons appeared as junior counsel for the Claimant
John Litton KC appeared for the Third Defendant

By contrast to some restrictive relevant development plan policies, “the NPPF takes a far more balanced approach, allowing an analysis of the significance or, where appropriate, of the substantiality of harm to the identified cultural interests, and a weighing of the identified harm against the actual benefits that could be expected to result from the benefits.” [31]

Benefits to a proposal as material considerations does not render more restrictive policies consistent with the NPPF [31].

Holland v Secretary of State for Communities and Local Government [2014] EWHC 566 (Admin), Lang J

Where a Council identifies a building as a non-designated heritage asset, a planning inspector is required to treat it as such. [24]

R (Hughes) v South Lakeland District Council [2014] EWHC 3979 (Admin), HHJ Waksman

“It is clear that the first part of paragraph 132 seeks to express the s72 (1) presumption. The remaining provisions then give guidance on how it may be applied in a case involving a heritage asset. So if there would be substantial harm to a listed building permission would have to be either exceptional or wholly exceptional. See the second part of paragraph 132. If there was to be substantial harm to a non-listed heritage asset, then consent should be refused unless that harm was necessary to achieve substantial public benefits or the particular matters set out in [a] to [d] apply. See paragraph 133. Finally if the harm is less than substantial it must be weighed against the public benefits including its optimum viable use. See paragraph 134.” [52]

R (Williams) v Powys CC [2017] EWCA Civ 427, Lindblom and Irwin LJJ

“I would not wish to lay down some universal principle for ascertaining the extent of the setting of a listed building. And in my view it would be impossible to do so. Clearly, however, if a proposed development is to affect the setting of a listed building there must be a distinct visual relationship of some kind between the two – a visual relationship which is more than remote or ephemeral, and which in some way bears on one’s experience of the listed building in its surrounding landscape or townscape. This will often require the site of the proposed development and the listed building to be reasonably close to each other, but that will not be so in every case. Physical proximity is not always essential. This case illustrates the possible relevance of mutual visibility – or “intervisibility”, as the judge described it – and also of more distant views from places in which the listed building and the proposed development can be seen together – “co-visibility”, as it was described in submissions before us. But this does not mean that the mere possibility of seeing both listed building and development at the same time establishes that the development will affect the setting of the listed building.” [56] (Lindblom LJ)

Catesby Estates Ltd v Peter Steer [2019] 1 P&CR 5, McFarlane, Lindblom, Asplin LJJ
Jacqueline Lean appeared for the Secretary of State
Rupert Warren KC appeared for the Catesby Estates

“26 [It is not the case] that factors other than the visual and physical must be ignored when a decision-maker is considering the extent of a listed building’s setting. Generally, of course, the decision-maker will be concentrating on visual and physical considerations, as in Williams (see also, for example, the first instance judgment in R. (on the application of Miller) v North Yorkshire County Council [2009] EWHC 2172 (Admin), at paragraph 89). But it is clear from the relevant national policy and guidance to which I have referred, in particular the guidance in paragraph 18a-013-20140306 of the PPG, that the Government recognizes the potential relevance of other considerations – economic, social and historical. These other considerations may include, for example, “the historic relationship between places”. Historic England’s advice in GPA3 was broadly to the same effect.

27 It has also been accepted in this court that the effect of development on the setting of a listed building is not necessarily confined to visual or physical impact. As Lewison L.J. said in R. (on the application of Palmer) v Herefordshire Council [2016] EWCA Civ 1061 (in paragraph 5 of his judgment), “[although] the most obvious way in which the setting of a listed building might be harmed is by encroachment or visual intrusion, it is common ground that, in principle, the setting of a listed building may be harmed by noise or smell”. In that case the potential harm to the setting of the listed building was by noise and odour from four poultry broiler units.

28 Three general points emerge. First, the section 66(1) duty, where it relates to the effect of a proposed development on the setting of a listed building, makes it necessary for the decision-maker to understand what that setting is – even if its extent is difficult or impossible to delineate exactly – and whether the site of the proposed development will be within it or in some way related to it. Otherwise, the decision-maker may find it hard to assess whether and how the proposed development “affects” the setting of the listed building, and to perform the statutory obligation to “have special regard to the desirability of preserving … its setting …”.

29 Secondly, though this is never a purely subjective exercise, none of the relevant policy, guidance and advice prescribes for all cases a single approach to identifying the extent of a listed building’s setting. Nor could it. In every case where that has to be done, the decision-maker must apply planning judgment to the particular facts and circumstances, having regard to relevant policy, guidance and advice. The facts and circumstances will differ from one case to the next. It may be that the site of the proposed development, though physically close to a listed building, has no real relationship with it and falls outside its setting, while another site, much further away, nevertheless has an important relationship with the listed building and is within its setting (see the discussion in sections 14.3, 15.2 and 15.8 of Mynors and Hewitson’s “Listed Buildings and Other Heritage Assets”, fifth edition). Under current national planning policy and guidance in England, in the NPPF and the PPG, the decision-maker has to concentrate on the “surroundings in which [the heritage] asset is experienced”, keeping in mind that those “surroundings” may change over time, and also that the way in which a heritage asset can be “experienced” is not limited only to the sense of sight. The “surroundings” of the heritage asset are its physical surroundings, and the relevant “experience”, whatever it is, will be of the heritage asset itself in that physical place.

30 Thirdly, the effect of a particular development on the setting of a listed building – where, when and how that effect is likely to be perceived, whether or not it will preserve the setting of the listed building, whether, under government policy in the NPPF, it will harm the “significance” of the listed building as a heritage asset, and how it bears on the planning balance – are all matters for the planning decision-maker, subject, of course, to the principle emphasized by this court in East Northamptonshire District Council v Secretary of State for Communities and Local Government [2015] 1 W.L.R. 45 (at paragraphs 26 to 29), Jones v Mordue [2016] 1 W.L.R. 2682 (at paragraphs 21 to 23), and Palmer (at paragraph 5), that “considerable importance and weight” must be given to the desirability of preserving the setting of a heritage asset. Unless there has been some clear error of law in the decision-maker’s approach, the court should not intervene (see Williams, at paragraph 72). For decisions on planning appeals, this kind of case is a good test of the principle stated by Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2017] 1 W.L.R. 1865 (at paragraph 25) – that “the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly”.

R (Shimbles) v City of Bradford Metropolitan District Council [2018] EWHC 195 (Admin), Kerr J

“The first point to consider is the contention of Mr Sinclair that the LPA was obliged to place the harm in this case somewhere on a spectrum. I do not accept this contention and I agree with Mr Barrett that it is not supported by the language of either section 66(1) of the 1990 Act or paragraphs 132-5 of the NPPF.” [87]

NPPF 128

Obar Camden Ltd v LB Camden [2015] EWHC 2475 (Admin), Stewart J

“NPPF 128 … required the applicant to describe the significance of any heritage assets affected including any contribution made by their setting. Nowhere in the OR is there an assessment of the significance of the heritage assets. It is submitted by C that it is not possible to come to a conclusion about harm until an assessment has been made of the significance of the asset affected. Nor were members told that section 12 NPPF (particularly at paragraph 128) required the applicant to describe the significance of heritage assets affected. D accepted that the process had been “truncated” but again emphasised that officers had come to the conclusion that there was no harm and that the Committee were experienced. One wonders in those circumstances why there is the requirement in … NPPF paragraph 128 as stated above.”

NPPF 128-129

Martin [2015] EWHC 3435 (Admin), Lindblom LJ

“Neither the policy in paragraphs 128 and 129 of the NPPF nor any of the relevant guidance issued by the Government and English Heritage stipulates the form in which information about heritage assets is to be provided to the decision-maker, or how much information will be needed, in a particular case (see paragraphs 7 to 11 and 22 above). The policy in paragraphs 128 and 129 of the NPPF is in general terms. Its tenor is pragmatic, not prescriptive. It indicates what authorities “should” do when determining applications for planning permission, and, therefore, what the Secretary of State or an inspector should do when deciding an appeal. Of course, the applicant for planning permission is expected to co-operate. But there is a note of caution in the second sentence of paragraph 128, discouraging the decision-maker from seeking any more detail than is truly needed to gain an understanding of the possible effects of the development on the significance of heritage assets. The minimum requirements are that the “relevant historic environment record should have been consulted” and “the heritage assets assessed using appropriate expertise where necessary”. Paragraph 129 of the NPPF requires the decision-maker to take account of “the available evidence and necessary expertise” when considering the likely impact on a heritage asset. Both the policy in the NPPF and the relevant guidance allow decision-makers a wide discretion in the approach they take, in each individual case, to assessing the particular significance of a heritage asset whose setting may be affected by the development proposed, and any impact the development might have.

Four points may be made here. First, for a decision-maker, having enough information about the heritage assets that may be affected by a proposed development is never an end in itself. It is only a means to the end of making a good decision on the planning merits. Secondly, if the applicant for planning permission fails to provide enough information himself, the local planning authority – or, on appeal, the Secretary of State – may still be able to gain a full enough picture from all the relevant material to be able to make a decision on the merits. Thirdly, the risk for an applicant in providing less than the decision-maker regards as sufficient is a refusal of planning permission. And fourthly, as Mr Banner submitted, the amount of information the decision-maker may regard as sufficient is liable to vary a good deal from one case to the next.” [59]-[60]

NPPF 130

Bohm [2017] EWHC 3217 (Admin), Nathalie Lieven KC
John Litton KC appeared for the Claimant
Rupert Warren KC appeared for the Second Interested Party

“Para 130 arises where a developer argues that s/he should be granted permission to remove a building, or permission for enabling development, because of the poor state of repair of that building. The point of para 130 is to prevent a developer in those circumstances relying on his/her own default. But that situation does not arise here, because the Inspector placed no reliance on the poor state of repair of the existing building.” [46]

NPPF 131

Lyndon-Stanford QC v Mid Suffolk District Council [2016] EWHC 3284 (Admin), John Howell KC
Richard Turney appeared for the Claimant

The recognition in the NPPF of “the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation” reflects s.66(1) of the Listed Buildings Act 1990.

NPPF 132

Bedford Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 2847 (Admin), Jay J

The final sentence of NPPF 132 does not impose a freestanding test. [29]

“paragraphs 131 to 134 are not purporting to quantify harm or explain what is meant by the adjective “substantial”. [19]

R (Forge Field Society) v Sevenoaks District Council [2014] EWHC 1895 (Admin), Lindblom J

Harm to a heritage asset has significance not only due to the NPPF, but from the Listed Buildings Act. “Once he had found that there would be some harm to the setting of the listed building and some harm to the conservation area, the officer was obliged to give that harm considerable importance and weight in the planning balance.” [55]

R (Lady Hart of Chiltern) v Babergh District Council [2014] EWHC 3261 (Admin), Sales J

“The NPPF creates a strong presumption against the grant of planning permission for development which will harm heritage assets, requiring particularly strong countervailing factors to be identified before it can be treated as overridden” [14]

R (Pugh) v Secretary of State for Communities and Local Government[2015] EWHC 3 (Admin), Gilbart J

“Mr Harwood points out that paragraph 132 uses the phrase “clear and convincing justification.” It might be thought difficult to be convincing without being clear, but it seems to me that the author of NPPF is saying no more than that if harm would be caused, then the case must be made for permitting the development in question, and that the sequential test in paragraphs 132-4 sets out how that is to be done. So there must be adherence to the approach set out, which is designed to afford importance in the balance to designated heritage assets according to the degree of harm. If that is done with clarity then the test is passed, and approval following paragraph 134 is justified.”

R (Austin) v Wiltshire Council [2017] EWHC 38 (Admin), Hickinbottom J

“[Section 66(1) of the Listed Buildings Act 1990] is reflected in paragraph 132 of the NPPF which refers to the asset’s conservation being given “great weight.”” [42]

NPPF 133

Whitby v Secretary of State for Transport [2016] EWCA Civ 444, Simon, Lindblom and Hamblen LJJ
Richard Drabble KC and Andrew Parkinson appeared for the Appellant
Richard Clarke appeared as Junior Counsel for Network Rail

“46 The conclusions in paragraph 633 are directed to Mr Whitby’s contention that the harm the proposed works would cause to heritage assets was not “necessary”, in the sense of paragraph 133 of the NPPF, because Option 15 was a “reasonable alternative” and Network Rail had not proved the contrary. As he said, the judgment he had to make here was “not a straightforward balance of harm to Middlewood Locks against the substantial benefits of an Ordsall Chord, which might be the case if Option 15 were before the Secretaries of State”. This was right. Option 15 was not the order scheme, and the balance the inspector and the Secretaries of State had to strike was not, therefore, simply a balance between the benefit and harm of “an Ordsall Chord” on the alignment in that alternative. The inspector’s remark that Option 15 was “not before the Secretaries of State because the promoters have rejected it” was also true as a matter of fact. It does not show that he was downplaying the merits of Option 15 in considering whether it enabled him to conclude, under the policy in paragraph 133 of the NPPF, that “the substantial harm” the proposed works would cause to heritage assets was “necessary to achieve substantial public benefits that outweigh that harm …”. Far from it, in paragraph 646 he expressly accepted that Mr Whitby’s masterplan “should not be assessed as if it were being put forward now for planning permission …”.

47 As the inspector said at the end of paragraph 633, the issue for him and the Secretaries of State was whether Option 15 would provide a “reasonable alternative” to the order scheme, and would be on an “appropriate alternative site”. The paragraph references given at the end of paragraph 633 relate to the inspector’s summary of Mr Whitby’s case on the policy in paragraph 133 of the NPPF and the guidance in paragraph 91 of the PPS5 Practice Guide, and Network Rail’s response to English Heritage’s objection in the same context. The inspector’s reference to a “reasonable” alternative to the order scheme and to “an appropriate alternative site” corresponds to the guidance in paragraph 91 of the PPS5 Practice Guide. He was faithfully applying the guidance, which amplifies the policy in paragraph 133 of the NPPF, that “[for] the loss to be necessary there will be no other reasonable means of delivering similar public benefits, for example through different design or development of an appropriate alternative site ” (my emphasis). As Ms Lieven submitted, he was not simply undertaking a conventional comparison between alternative sites or schemes, without heed to the relevant statutory imperatives for decision-makers in sections 16(2), 66(1) and 72(1) of the Listed Buildings Act , and the relevant national policy and guidance. On the contrary, he was doing exactly what statute requires of a decision-maker in a case of substantial harm to the significance of designated heritage assets, including substantial harm to grade I listed buildings, and exactly what the decision-maker is enjoined to do by government policy in the NPPF and by the PPS5 Practice Guide. Once this is recognized, the main thrust of Mr Drabble’s argument falls away.

48 I see no error in the approach described by the inspector in paragraph 634 of his report. Five things may be said about that paragraph. First, the inspector’s comment that the judgment to be made was “not merely a comparison of the heritage impacts of the two alternatives” was not inconsistent either with NPPF policy or with the PPS5 Practice Guide. The same may also be said of his observation that “it does not follow that substantial harm to heritage assets on an application site should necessarily justify substantial harm to other interests on an alternative site”. Secondly, it was not wrong to say, as he did, that “[the] test is one of reasonableness”. This again was clearly a reference to the guidance in paragraph 91 of the PPS5 Practice Guide, where the concept of necessity is described in terms of there being “no other reasonable means of delivering similar public benefits” (my emphasis). And in the next sentence the inspector referred to “[the] relevant PPS5 guidance” relating “specifically to cases of substantial harm or total loss of significance”. Thirdly, as I have said, he directed himself to the relevant part of the policy in paragraph 132 of the NPPF, which refers to substantial harm to heritage assets of the highest significance being “wholly exceptional”. And he said that the “the necessity for such harm must be rigorously tested”, which is clearly a reference to the policy in paragraph 133. Fourthly, he quoted the relevant passage of Sullivan L.J.’s judgment in Barnwell Manor (in paragraph 28), where Sullivan L.J. referred to the section 66(1) duty applying “with particular force if harm would be caused to the setting of a Grade I listed building, a designated heritage asset of the highest significance”. And fifthly, he noted that “an exceptional degree of justification” is not a test to be found in the NPPF or the PPS5 Practice Guide. All of this was impeccable.” [46-48]

NPPF 134

R (Hughes) v South Lakeland District Council [2014] EWHC 3979 (Admin), HHJ Waksman

“…in a paragraph 134 case, the fact of harm to a heritage asset is still to be given more weight than if it were simply a factor to be taken into account along with all other material considerations, and paragraph 134 needs to be read in that way. By way of contrast, where non-designated heritage assets are being considered, the potential harm should simply be “taken into account” in a “balanced judgment” – see paragraph 135. It follows that paragraph 134 is something of a trap for the unwary if read – and applied – in isolation.” [53]

R (Pugh) v Secretary of State for Communities and Local Government[2015] EWHC 3 (Admin), Gilbart J

“Like Judge Waksman [K[C in Hughes v South Lakeland , in my view paragraph 134 of NPPF can be a trap for the unwary if taken out of context. I agree with his approach that the significance of a heritage asset still carries weight at the balancing stage required by paragraph 134, and to the extent that Kenneth Parker J in Colman v Secretary of State for Communities and Local Government & Ors [2013] EWHC 1138 and Jay J in Bedford Borough Council v SSCLG [2013] EWHC 2854 suggest otherwise, I prefer the approach of Judge Waksman [K]C. Thus, the value and significance of the asset, whatever it may be, will still be placed on one side of the balance. The process of determining the degree of harm, which underlies paragraph 132 of NPPF, must itself involve taking into account the value of the heritage asset in question. That is exactly the approach that informed the Addendum Assessment upon which Mr Harwood relies. The later assessment also addressed the value of the asset, and then the effect of the proposal on that value. Not all effects are of the same degree, nor are all heritage assets of comparable significance, and the decision maker must assess the actual significance of the asset and the actual effects upon it.

But one must not take it too far so that one rewrites NPPF. It provides a sequential approach to this issue. Paragraphs 126-134 are not to be read in isolation from one another. There is a sequential approach in paragraphs 132 -4 which addresses the significance in planning terms of the effects of proposals on designated heritage assets. If, having addressed all the relevant considerations about value, significance and the nature of the harm, and one has then reached the point of concluding that the level of harm is less than substantial, then one must use the test in paragraph 134. It is an integral part of the NPPF sequential approach. Following it does not deprive the considerations of the value and significance of the heritage asset of weight: indeed it requires consideration of them at the appropriate stage. But what one is not required to do is to apply some different test at the final stage than that of the balance set out in paragraph 134. How one strikes the balance, or what weight one gives the benefits on the one side and the harm on the other, is a matter for the decision maker. Unless one gives reasons for departing from the policy, one cannot set it aside and prefer using some different test.” [49-50]

R (Nicholson) v Allerdale BC [2015] EWHC 2510 (Admin), Holgate J
Dan Kolinsky KC appeared for the Claimant
James Maurici KC appeared for the Interested Party

“As to the second point, the application of paragraph 134 of the NPPF, Mr Kolinsky [K[C submitted that the Council had failed to consider how the benefits of the scheme could be achieved without causing harm to the setting of the listed building or with only a lesser degree of harm. I will assume in the claimant’s favour, without deciding, that that is a correct understanding of paragraph 134. The short answer is that the point was properly addressed in the officer’s report.” [50]

Jones v Mordue [2016] 1 P&CR 12, Richards, Floyd and Sales LJJ
Alistair Mills appeared for the Appellant Developer

“Paragraph 134 of the NPPF appears as part of a fasciculus of paragraphs, set out above, which lay down an approach which corresponds with the duty in s.66(1) . Generally, a decision-maker who works through those paragraphs in accordance with their terms will have complied with the s.66(1) duty. When an expert planning inspector refers to a paragraph within that grouping of provisions (as the Inspector referred to para.134 of the NPPF in the Decision Letter in this case) then—absent some positive contrary indication in other parts of the text of his reasons—the appropriate inference is that he has taken properly into account all those provisions, not that he has forgotten about all the other paragraphs apart from the specific one he has mentioned. Working through these paragraphs, a decision-maker who had properly directed himself by reference to them would indeed have arrived at the conclusion that the case fell within para.134, as the Inspector did.” [28]

Forest of Dean District Council [2016] EWHC 421 (Admin), Coulson J
Gwion Lewis appeared for the Secretary of State
David Elvin KC appeared as senior counsel for the Second Defendant

“Paragraph 134 provides for a balancing exercise to be undertaken, between the “less than substantial harm” to the designated heritage asset, on the one hand, and the public benefits of the proposal, on the other. The presumption in favour of development is not referred to and does not apply. Paragraph 134 is thus a particular policy restricting development. Limb 2 of paragraph 14 applies.” [26]

“Further or in the alternative to his submission that paragraph 134 was not a policy indicating that development should be restricted, Mr Elvin argued that the balancing exercise in paragraph 134 was not an ordinary one. Instead, he said, the weighted balancing exercise envisaged in Limb 1 (that is to say, that the adverse effects of permission would “significantly and demonstrably outweigh the benefits”) should be imported – or as he put it, ‘read across’ – into paragraph 134. He submitted that there was no difficulty with interpreting paragraph 134 as importing that weighted test: indeed, he said, that was in accordance with the NPPF and the presumption in favour of development and the granting of planning permission.

I do not accept that submission. It seems to me that it is wholly inconsistent with the words of paragraph 134 itself, which make plain that the balancing exercise is of a standard type, without any weighting. There is no reason to import the weighted test from Limb 1 of the last bullet point of paragraph 14 into paragraph 134, when the words of paragraph 134 can be read entirely satisfactorily without them. Reading across in this way would be unnecessary and over-complicated. Moreover, without any signpost of any sort, it would be unwarranted. It would be contrary to the natural meaning of the words used.

Accordingly, I do not accept that the balancing exercise envisaged in paragraph 134 is anything other than the ordinary (unweighted) test described by its wording. I do not consider that the test in Limb 1 can or should be read across in the way submitted.” [33]-[35]

“It is plain that the inspector in this case was aware of the considerable weight and importance to be given to the desirability of preserving the setting of the Mantley House Farm complex …. But I consider that the appropriate place for that considerable weight to be applied was as part of the ordinary balancing exercise under paragraph 134 of the NPPF. Because the inspector did not undertake the ordinary balancing exercise required by paragraph 134, it follows that the considerable weight to be given to the preservation of listed buildings, let alone the presumption against granting permission in such situations, has been at best diluted, and at worst, lost altogether.” [39]

R (Leckhampton Green Land Action Group Ltd) v Tewkesbury BC [2017] EWHC 198 (Admin), Holgate J

“During the hearing it appeared to be suggested that there are passages in the judgment of Coulson J [in Forest of Dean] which might be taken to suggest that the balancing exercise required by paragraph 134 of the NPPF is “an ordinary unweighted balance” (see eg. paragraphs 34 to 37). The headnote has certainly taken that view ( [2016] PTSR 1032 C–D ). But that would be to take this part of his judgment out of context. The headnote is inaccurate in this respect. Coulson J was simply responding to, and rejecting, a submission for the developer in that case that the weighted test, or tilted balance, in favour of sustainable development should be read across, or incorporated into, the application of paragraph 134 of the NPPF (see paragraph 33 of the judgment). I agree with Coulson J’s conclusion rejecting that point.

It is plain from the East Northants decision and Mordue that paragraph 134 of the NPPF does not involve an unweighted, normal balancing exercise. It is true that when paragraph 134 of the NPPF is being applied in order to see whether (under the second exception) the presumption in favour of sustainable development is disapplied, the tilted balance in favour of such development (used in the first exception) is not incorporated with paragraph 134. But the decisions of the Court of Appeal, particularly in Mordue , go further. They make it plain that the balancing exercise required by paragraph 134 is to give effect to the presumption against granting permission for development which harms the setting of a listed building. Under paragraph 134 there is a tilt in favour of the preservation of that setting. How much weight to give to the harm to the setting of a listed building and to that tilt is, of course, a matter for the decision-maker. But where a proposal would result in harm to the setting of a listed building, the “Barnwell Manor” tilt in section 66(1) (and in the NPPF — see for example paragraph 134), leans in the opposite direction to the presumption in paragraph 14 of the NPPF in favour of the grant of planning permission. Paragraphs 38 to 41 of Coulson J’s judgment in Forest of Dean accord with this analysis.” [48]-[49]

R (Advearse) v Dorset Council [2020] EWHC 807 (Admin), Swift J
Matthew Henderson appeared for the Claimants
Matthew Reed KC and Matthew Fraser appeared for the Council
Christopher Katkowski KC appeared for the Interested Party

“22. … In the present case the balance required by paragraph 134 of NPPF 2012 needed to be struck by the councillors in the knowledge that decisions remained to be taken on matters such as landscaping and scale, but without assumptions as to what the outcome of those future decisions would be. When those matters, in future, come to be determined, paragraph 134 will fall to be applied once again.”

NPPF 135

Travis Perkins (Properties) Limited v Westminster City Council [2017] EWHC 2738 (Admin), HHJ Jarman KC
Christopher Katkowski KC and Richard Moules appeared for the Interested Party

“All that is required by paragraph 135 in respect of a non-designated heritage asset is that the effect of an application on the significance of the asset should be taken into account.” [44]

Bohm [2017] EWHC 3217 (Admin), Nathalie Lieven KC
John Litton KC appeared for the Claimant
Rupert Warren KC appeared for the Second Interested Party

“Unsurprisingly, given that an NDHA [non-designated heritage asset] does not itself have statutory protection, the test in para 135 is different from that in paras 132-4, which concern designated heritage assets. Paragraph 135 calls for weighing “applications” that affect an NDHA, in other words the consideration under that paragraph must be of the application as a whole, not merely the demolition but also the construction of the new building. It then requires a balanced judgement to be made by the decision maker. The NPPF does not seek to prescribe how that balance should be undertaken, or what weight should be given to any particular matter.” [34]

NPPF 136

Bohm [2017] EWHC 3217 (Admin), Nathalie Lieven KC
John Litton KC appeared for the Claimant
Rupert Warren KC appeared for the Second Interested Party

“It is important to keep in mind that the policy in paragraph 136 of the NPPF is only to take all reasonable steps to ensure that the development will procced. There is no suggestion of any duty to impose a condition, or take any particular steps, and the ultimate judgement is one of reasonableness for the Inspector.” [55]

NPPF 138

R (East Meon Forge and Cricket Ground Protection Association (acting by its Chairman George Bartlett) v East Hampshire District Council [2014] EWHC 3543 (Admin), Lang J
David Forsdick KC appeared for the Council

“It seems to me that Mr Forsdick is correct in submitting that paragraph 138 only applies where there is a loss of a building or other element. Throughout section 12, it is clear that ‘harm’ and ‘loss’ are different concepts. Although the development may harm the character and appearance of The Forge, there is no suggestion that it will be lost. However, I am unclear why the principle expressed in paragraph 138 should be confined to cases of loss, and so I am uncertain about the intended scope of this paragraph.” [50]

R (Irving) v Mid-Sussex District Council [2016] EWHC 1529 (Admin), Gilbart J
Robert Walton appeared for the Defendant

“If there is harm to the character and appearance of one part of the Conservation Area, the fact that the whole will still have a special character does not overcome the fact of that harm. It follows that the character and appearance will be harmed. While I accept that the question of the extent of the harm is relevant to consideration of its effects, it cannot be right that harm to one part of a Conservation Area does not amount to harm for the purposes of considering the duty under s 72 PLBCAA 1990.”

Bohm [2017] EWHC 3217 (Admin), Nathalie Lieven KC
John Litton KC appeared for the Claimant
Rupert Warren KC appeared for the Second Interested Party

“39 This paragraph [NPPF 138] read on its own would seem to suggest that where, as here, a building makes a positive contribution to a CA, then its loss should be treated as falling within paragraphs 133 or 134 of the NPPF. In this case there could be no doubt that the planning judgement of the Inspector was that there would be “less than substantial harm” within the meaning of para 134, because in fact she found no harm to the designated heritage asset. Therefore even if this was an additional analytical step which the NPPF requires, it could make no possible difference to the outcome in this case.

40 In any event, the NPPF and in particular the heritage section, must itself be read as a whole and in a sensible and purposive manner. It cannot have been the intention of those drafting the NPPF that the loss of an NDHA which made a positive contribution to a CA, would itself be treated in the same way as the impact on a designated heritage asset. Such a reading would undermine the distinction in the NPPF paras 132 to 135 between designated and undesignated heritage assets. The proper approach is that where an NDHA makes a positive contribution to a CA then the decision maker has to consider the development proposal, including the loss of the NDHA, and in doing so any harm to the CA should be weighed against the public benefits.”

NPPF 141

R (Hayes) v York City Council [2017] EWHC 1374 (Admin), Kerr J

“In my judgment, the last sentence of that paragraph only makes good sense if interpreted so that the words “should not be a factor” are taken to bear the meaning “should not be a decisive factor”, in deciding whether the harm to the asset should be permitted.” [81]