If, like us, you have been waiting patiently through lockdown for even more planning news (because last year’s changes to the GPDO, White Paper proposals, and draft NPPF weren’t enough) then Tuesday 9th March was another important day.

This time the focus was on heritage: listed buildings and a registered park and garden, and specifically a former police training college at Bramshill in Hampshire. The news was delivered via a judgement handed down by the Court of Appeal ([2021] EWCA Civ 320) and involved a case we advised on.

The challenge was against the refusal of permission for a major enabling development scheme submitted by City and Country. It involved Bramshill, a superb grade I listed C17 former royal residence, which enjoys a grade I listed designed parkland setting, parts of which date to the house’s construction.

In summary there were three key take-aways from the judgement that are helpful for heritage practitioners. We expand on each below:

  • The Palmer judgement does not lead to an “internal heritage balance” as a matter of course [71]. There are different ways that an Inspector can apply the balance of harm versus benefits [74], and some of these are summarised in [78].
  • The “great weight” given to the conservation of designated heritage assets (para 193 of the National Planning Policy Framework) does not predetermine the appropriate amount of weight to be given to the conservation of a heritage asset. This is a matter of judgement left to the decision-maker, based on the facts of the case, and including Sullivan LJ's observations about "considerable importance and weight" in Barnwell Manor [73]. This approach appears to chime with paras 15.13 and 15.23 of the relatively recent Citroen Garage Appeal Decision, in Brentford, where the Inspector clearly articulated the correct approach. We repeat paragraph 15.13:

"As above, the considerable importance and weight to the desirability of preservation [of the special architectural or historic interest of a listed building or its setting], should tip the scales to produce an unequal balance in its favour. However, the SoS should still take account of the actual severity of any change, or scale of change as the Mayoral SPG puts it, and so the extent of impact, as well as the relevance to its significance, and the importance of the asset. The overall weight to be given to any harm, and the conflict with policy, should be a product of these factors."

  • The judgement clarifies that even where development plan policies do not include the balance of harm versus benefit, they are not necessarily in conflict with the NPPF or section 66 of the Planning (Listed Buildings and Conservation Areas ) Act 1990 [87]. In this case, the policies were given "significant weight" and the Court of Appeal found that they did not preclude the balancing exercise, or override the Framework policies, and were directed to the same basic objective of preservation.

Read more on the judgement below.