Where a local planning authority is deciding a planning application, section 72 (1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, says:
“special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area.”
Section 72 (1) means that when deciding whether harm to a conservation area is outweighed by the advantages of the proposed development the decision-maker should give special weight to the desirability of avoiding that harm.
Paragraphs 133-134 of the National Planning Policy Framework say:
“133. 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, or all of the following apply:…
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.”
Even if the harm would be less than substantial, so that paragraph 134 applied instead of paragraph 133, the harm must still be accorded a lot of importance.
Once it is found that there would be some harm to a conservation area, considerable weight must be given to that harm in the planning balance.
The mere fact that paragraph 134 on its own is apparently followed will not save the planning decision from being quashed – even where there is express reference to those presumptions militating against permission being granted in those circumstances. The decision must also give clear and express recognition – and application – of those presumptions. It becomes, and must explicitly be, more than a “simple balancing exercise”.
Where paragraph 134 applies, the fact of harm to a heritage asset must be given more weight than if it were simply a factor to be taken into account along with all the other material considerations. This needs to be “demonstrably applied”.
However, where non-designated heritage assets are being considered, paragraph 135 will apply and the potential harm should simply be “taken into account” in a “balanced judgment”.
In the High Court case of Hughes, R (On the Application Of) v South Lakeland District Council  the site, an old brewery in Ulverston, was located within a heritage asset i.e. the local Conservation Area. The proposed Development included demolition of the Brewery Tower.
The court said it was not enough that the impact was mentioned in the Council Planning Officer’s Report. A mere acknowledgment of the harm was insufficient.
The decision makers needed to address how it was to be dealt with and show that they were applying the presumptions. In this case there was no evidence of this at all. The planning decision had to be quashed.
It was not appropriate for the court to exercise its discretion against quashing the planning decision because the decision was passed by such a slender majority of Councillors that it was impossible to say that it would have gone the same way, anyway, had the presumptions been properly addressed and applied.
This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.