Sharing Good Practice

Heritage and Planning

How did we get here? Planning Policy Guidance 16: Archaeology and Planning: November 1990 Planning Policy Guidance 15: Planning and the Historic Environment: September 1994 Planning Policy Statement 5: Planning and the Historic Environment: March 2010 National Planning Policy Framework: March 2012

How did we get here? Definitions Harm: “Change for the worse, here primarily referring to the effect of inappropriate interventions on the heritage values of a place” (Conservation Principles, HE 2008) Heritage asset: “A building, monument, site, place, area or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. Heritage asset includes designated heritage assets and assets identified by the local planning authority (including local listing).”(Annex 2, Glossary, NPPF 2012) Setting of a heritage asset: “The surroundings in which a heritage asset is experienced…” Significance: “The value of a heritage asset to this and future generations because of its heritage interest. That interest may be archaeological, architectural, artistic or historic. Significance derives not only from a heritage asset’s physical presence, but also from its setting” (Annex 2, Glossary, NPPF 2012) Value: “An aspect of worth or importance, here attached by people to qualities of places” (Conservation Principles, HE 2008)

The Legal Framework TCP (LB &CA)A 1990 66 General duty as respects listed buildings in exercise of planning functions(1)In

considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.

72 General duty as respects conservation areas in exercise of planning functions(1) In the exercise, with respect to any buildings or other land in a conservation area, of any [functions under or by virtue of] any of the provisions mentioned in subsection (2), special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area.

South Lakeland District Council v Secretary of State for the Environment and another [1992] 1 ALL ER 573 House of Lords decided that the “statutorily desirable object of preserving the character of appearance of an area is achieved either by a positive contribution to preservation or by development which leaves character or appearance unharmed, that is to say preserved.”

The present situation

NPPF Section 12 128. In determining applications, local planning authorities should require an applicant to describe the significance of any heritage assets affected, including any contribution made by their setting. The level of detail should be proportionate to the assets’ importance and no more than is sufficient to understand the potential impact of the proposal on their significance. As a minimum the relevant historic environment record should have been consulted and the heritage assets assessed using appropriate expertise where necessary. Where a site on which development is proposed includes or has the potential to include heritage assets with archaeological interest, local planning authorities should require developers to submit an appropriate desk-based assessment and, where necessary, a field evaluation. 134. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use.

NPPF and Case Law E Northants DC v Secretary of State for Communities and Local Government [2014] EWCA Civ137 (“Barnwell”) Inspector: “In my view, the significant benefits of the proposal in terms of the energy it would produce from a renewable source outweigh the less than substantial harm it would cause to the setting of designated heritage assets and the wider landscape.”

COA: “It does not follow that if the harm to such heritage assets is found to be less than substantial, the balancing exercise referred to in policies HE9.4 and HE 10.1 should ignore the overarching statutory duty imposed by section 66(1)…[28] “For these reasons, I agree with Lang J's conclusion that parliament's intention in enacting section 66(1) was that decision-makers should give "considerable importance and weight" to the desirability of preserving the setting of listed buildings when carrying out the balancing exercise.”[29] Result • Refocus on the primacy of the legislation • Listed Buildings of equal statutory importance • “Special regard” has considerable importance and weight

NPPF and Case Law R (Forge Field Society) v Sevenoaks District Council [2014] EWHC 1895 (Admin), Lindblom J “…When an authority finds that a proposed development would harm the setting of a listed building or the character or appearance of a conservation area, it must give that harm considerable importance and weight.” [48] “….as the Court of Appeal emphasized in Barnwell, that a finding of harm to the setting of a listed building or to a conservation area gives rise to a strong presumption against planning permission being granted. The presumption is a statutory one. It is not irrebuttable. It can be outweighed by material considerations powerful enough to do so. But an authority can only properly strike the balance between harm to a heritage asset on the one hand and planning benefits on the other if it is conscious of the statutory presumption in favour of preservation and if it demonstrably applies that presumption to the proposal it is considering.”[49]

Planning Issue 1 • The Setting of Heritage Assets Setting itself is not a heritage asset or designated. Every heritage asset, whether designated or not, has a setting. Its importance, and therefore the degree of protection it is offered in planning decisions, depends entirely on the contribution it makes to the significance of the heritage asset or its appreciation. In primary legislation, the setting of conservation areas is not a statutory duty. However, NPPF states the setting of a designated heritage asset can contribute to its significance In reaching a view on the level of ‘harm’ that would result from a proposal, in terms of the setting of a heritage asset, the key consideration for the decision maker is the contribution that the asset’s setting makes to its significance.

Planning Issue 2 • The ‘bandwidth’ of less than substantial harm There can be a great variance in the degree of harm between no harm and substantial harm. Whatever the degree of harm there is a presumption against the development, mandated by the statute, which requires that special regard is had to preserving or enhancing heritage assets. The presumption is not an irrebuttable one but the level of the presumption against the development will be governed by the level of harm to the heritage asset. Unless that presumption is demonstrably applied and significant weight attached to harm to the heritage asset then the decision is flawed.

Planning Issue 3 • Future Consultation and Engagement with

Statutory Authorities Historic England in 2015 introduced their ‘Enhanced Advisory Service’ . This includes: • Fast-track Listing: providing Listing decisions in a

quicker and guaranteed timeframe • Listing Enhancement: providing clarity over the

extent of statutory protection in a guaranteed timeframe

• Listing Screening Service: providing assessment of the likelihood of any heritage assets with the degree of interest that would warrant statutory Listing

• Extended Pre-application Advice: providing Historic England engagement in pre-application advice beyond an initial free service

First 15 hours of pre-app advice free then charged over that time.

Addressing the Issues Paragraph 128 • Need for proportionate response - EIA scoping/ heritage statement/ desk based

assessment/ heritage impact assessment • Archaeological Potential- What is required for a planning decision and beyond

Addressing the Issues Paragraph 132-134 • The need to understand setting and the contribution that setting makes to the

significance of a heritage asset • Work with planners and clients at early stage to identify the risk of harm, reduce the

potential for harm or present case for weighing harm against the statutory requirements of s66 and s72