Heritage - Court of Appeal Decision

The judgement of City & Country Bramshill Ltd v SSHCLG [2021] has provided clarification regarding the assessment of harm when considering development and heritage assets.

The key dispute before the court in relation to heritage policy was as follows:

“Historic England and the National Trust provided their evidence on the basis that paragraphs 195 and 196 of the [NPPF] would always be engaged where any element of harm was identified. The appellant held that this was not the correct approach […].

The appellant’s case is that an “internal heritage balance” should be carried out where elements of heritage harm and heritage benefit are first weighed to establish whether there is any overall heritage harm to the proposal. Paragraphs 195 and 196 would only be engaged where there is residual heritage harm. This should then be weighed against the public benefits of the scheme.”

This is because of the rejection of the idea that the so called ‘Palmer Principle’ should be applied with respect to a developments impact on heritage assets. The Palmer principle – referring to referring to R. (on the application of Palmer) v Herefordshire Council [2016] EWCA Civ 1061, [2017] 1 WLR 411– – is essentially a mini-test designed to assess whether a proposed scheme would result in net harm on strictly heritage grounds.

What this means is that the imperative of giving "considerable weight" to harm to the setting of a listed building does not mean that the weight to be given to the desirability of preserving it or its setting is "uniform". That will depend on the "extent” of the assessed harm and the heritage value of the asset in question. These are questions for the decision maker to answer.

The Court of Appeals ruled that decision makers should not have to apply such a test and should instead lump heritage considerations into a wider balancing exercise. However, the ‘Palmer Principle’ is not ruled out in its entirety, as there may be some instance where its application is the sensible approach to take. This is a matter that will need to be considered on a case by case basis, so that the correct balancing exercise is undertaken, depending on the specific nature of the development. Whilst there is the potential for this to cause issues in terms of reaching clean cut decisions about the heritage impacts of developments, it could also serve to give greater prominence than deserved to potential heritage harms.

This element will need to be carefully considered through the submission of applications which affect heritage assets, to ensure that appropriate consideration is given over whether the benefits of development would outweigh any potential harm to heritage assets.

Mark Campbell Head of Planning at Evans Jones Ltd commented:

"It is good to see the judgement reaffirming that it is for the decision maker to take a rational course through the various NPPF policy tests, based on judgement and circumstances. That may seem obvious to many, however the determination of planning application impacting upon heritage assets remains something of a lottery, with many decision maker not applying appropriate balance in many cases."

Mark Campbell is Head of Planning at Evans Jones. If you would like any further information on Heritage matters or other planning issues, contact Mark on 0800 0014090 or email mark.campbell@evansjones.co.uk.