Court Indicates the Importance of Planning Decision-Makers to Strictly Adhere to Historic England Guidance on How Best to Assess Heritage Harm

by Akeem Iginla

A High Court Judge recently overturned a Planning Inspector’s approval for a controversial high-rise 289-flat build-to-rent scheme, ruling that the official “took into account a legally irrelevant consideration” when assessing the level of harm to an adjacent grade one listed church.

The proposal by the developer, Packaged Living and Robertson Property to build 289 flats in blocks between 11 and 14 storeys high on Newcastle East Quayside was turned down by the City Council last year when the Planning Committee overruled its officers’ recommendation as a result of strong local opposition. After a public inquiry in early 2022, the Planning Inspector approved the scheme.

The Planning Inspector’s decision, however, has been overruled by Mr Justice Holgate after a judicial review brought by the City Council in the High Court, which means the appeal must be redetermined by a different Inspector. The developer has recently applied for permission to challenge the judgement in the Court of Appeal.

The proposed development site is situated in a very sensitive heritage location, between two conservation areas, and adjacent to a grade one listed church and a grade II Listed Sailor’s Chapel. The ruling of the Judge has been interpreted by many commentators that the Judge is clearly pointing out that when assessing the impact of any development proposal on a high value historic context, good practice guidance from government heritage advisor Historic England needs to be followed rigorously.

Paragraph 195 of the National Planning Policy Framework (NPPF) requires development to take into account the significance of any heritage asset and to avoid or minimise conflict between a proposal and conversation of that asset. The Historic England guidance sets out how this requirement should be implemented.

Justice Holgate stated that the four separate steps set out in the guidance need to be followed when assessing impact. These involve identifying the heritage assets that would be affected by the developments; assessing the value of the setting; and assessing the degree of impact. The final step requires exploring ways to maximise the enhancement and avoid or minimise harm. Justice Holgate in his judgement, noted that the final step “needs to be addressed separately from the other steps”.

The judge questioned the Inspector’s comment that any development of plot 12 would affect the setting of St. Ann’s Church but that “there could not be a vastly different design response which could further minimise the harm caused to this Grade I listed building”. This suggestion as he puts it, taints the Inspectors assessment of the impact as less than substantial harm, which was lower than Historic England’s rating.

Regarding the Inspector’s assessment of the project for the inquiry – of “moderate harm”, the judge stated that “even if the level of harm had been “minimised”, in the sense that it could not be reduced further by adopting a different design solution, that tells the reader nothing about what that “minimised” level of harm amounts to”.

The Local Civic Society have welcomed the Judgement as it is hard to see how the architects of the proposed scheme had sought to minimise impact on the surrounding historic areas. Also, the developers have tried to pack too many small flats on the proposed site and the height of the buildings interrupted many views of the historic buildings and along the river.

The High Court Judgement suggested that when undertaken the four tests, a separate assessment was required on each of them before then balancing up the results and coming to a view on the acceptability of the scheme. The Judge pointed out a flaw in the Inspector’s for giving weight to the minimisation of harm. Hence, planning decision makers need to weigh up the results of each test and spell out how much importance is attributed to each of them.

The Heritage Officer for the City Council had also pointed out that the Inspector had taken into account extraneous issues about minimising impact, when considering the potential harm on the historic setting from the scheme. Hence, concluded that when carrying out the four tests, it’s important for planners to spell out their reasoning clearly and avoid bringing in any irrelevant material.

The Director of Campaign group SAVE Britain’s Heritage alluded to the judge statement clearly questioning the weight given by the Inspector to her assessment that the scheme sought to minimise harm. Bearing in mind the sensitive context, the likely level of harm was far more important than whether it had been minimised.

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