Substantial vs Less than Substantial Harm

Transcription

1 Substantial vs Less than Substantial Harm A workshop session for RTPI Bristol, 11 October 2017 Dr Andy Brown Planning Director, South East

2 Why might you need to know? What does substantial harm look like? When is harm acceptable?

3 Law Planning (LB&CA) Act 1990, Planning and Compulsory Purchase Act 2004 Planning Policy Development Plan, NPPF and Planning Practice Guidance Advice Good Practice Advice Notes Other documents Conservation Principles

4 Lyveden New Bield aka Barnwell Manor By Section 66(1) of the P(LB&CA)A 1990: 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. Preserving means protecting from harm links to policy

5 NPPF Para.17 Core planning principles These 12 principles are that planning should... conserve heritage assets in a manner appropriate to their significance, so that they can be enjoyed for their contribution to the quality of life of this and future generations;

6 NPPF Para 126 Plan-making In developing [a heritage] strategy, local planning authorities should take into account: the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation

7 NPPF Para 131 Decisions In determining planning applications, local planning authorities should take account of: the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation;

8 How to assess if there is substantial harm? What matters in assessing if a proposal causes substantial harm is the impact on the significance of the heritage asset. As the National Planning Policy Framework makes clear, significance derives not only from a heritage asset s physical presence, but also from its setting.

9 NPPF Para 133 Strong presumption against substantial harm Where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, local planning authorities should refuse consent, unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss... NPPF Para 134 Balancing harm 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.

10 But before we look at what substantial harm looks like... All harm is failure NPPF sets out aspiration for jointly and simultaneously achieving social, economic and environmental improvement Should look for win/win/win development before beginning down path of balancing competing interests If not that, then try to avoid harm If not that, then minimise through mitigation by design etc Only then look to justify residual harm

11 Substantial harm is a high bar For example, in determining whether works to a listed building constitute substantial harm, an important consideration would be whether the adverse impact seriously affects a key element of its special architectural or historic interest. DCLG Planning Practice guidance

12 9 Church Walk Long Melford Grade II Listed Replacement of portico in GRP

13 6&8 Front Street, Staindrop, Darlington Grade II Listed Replacement of 2/2- pane windows with 4/4

14 Smoke Shack Wolverton Road, Stony Stratford Grade II Listed Replacement of plaster on first floor walls

15 30-31 North Street, Brighton Grade II Listed bright plastic fixed awnings

16 The Danes, Little Berkhamsted Grade II Listed Replacement fire surrounds

17 Pathe Farm Cottage, Othery Grade II Replacement sash windows

18 Dragon s Teeth antitank obstacles, Gillingham Scheduled monument Access to housing land

19 GAMA site, Greenham Common Scheduled monument Car storage

20 Scaitcliffe Hall Todmorden Grade II 8 new houses

21 Bolton Mill, Alnwick Demolition of Cartshed/Granary in curtilage of Grade II Listed Farmhouse

22 So what happened? In each case consent was refused, whether or not the harm was considered substantial, because the harm was not clearly and convincingly justified. NPPF Para. 132 As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification.

23 What do we mean by justification? Studies can reveal alternative development options, for example more sensitive designs or different orientations, that will deliver public benefits in a more sustainable and appropriate way. PPG Reference ID: 18a Design and Access Statements provide a flexible framework for an applicant to explain and justify their proposal with reference to its context. PPG Reference ID: 18a

24 Only when harm has been minimised should the unavoidable residual harm be weighed against public benefits. All too often, the minimisation stage is leapt over.

25 And what makes something a public benefit? Public benefits may follow from many developments and could be anything that delivers economic, social or environmental progress as described in the NPPF. Public benefits should flow from the proposed development. They should be of a nature or scale to be of benefit to the public at large and should not just be a private benefit. However, benefits do not always have to be visible or accessible to the public in order to be genuine public benefits. PPG Reference ID: 18a

26 it remains essential that, in applying the advice in paragraph 134, 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. [2014] EWHC 279 (Admin)

27 1. Less than substantial harm does not make it a less than substantial objection 2. It s often not about the level of harm; it s about the level of justification