Sub-paragraph (2) in paragraph 18a-036 of the Planning Practice Guidance requires information to be provided to enable the Government to comply with it’s obligations, under the 1972 World Heritage Convention, to warn the World Heritage Committee of any proposals which may have an adverse effect on a World Heritage Site’s Outstanding Universal Value.
In Save Britain’s Heritage, R (On the Application Of) v Liverpool City Council & Anor  the applicant said the respondent had failed to do this in breach of the above and the World Heritage Committee’s Operational Guidelines. The site lay within the buffer zone of the World Heritage Site and included The Futurist Picture House.
The main issue before the Court of Appeal was whether the city council was, or was not, required, to notify the Department for Culture, Media and Sport of the proposal, or at least to consider doing so, in the light of the guidance in paragraph 18a-036 of the Planning Practice Guidance.
The applicant said the city council was required by that guidance to at least consider referring the planning application to the Department for Culture, Media and Sport (“the DCLG”), and, through that department, the World Heritage Committee, as a proposal that “may affect” the Outstanding Universal Value of the World Heritage Site. The applicant said the words “may affect” must mean “may affect in a negative, neutral or positive way”, not merely “affect adversely”.
The court said the words “may affect the Outstanding Universal Value” meant “may have an adverse impact on the Outstanding Natural Value” – the kind of harm to a World Heritage Site or it’s setting that is contemplated in the second part of paragraph 18a-036.
To interpret the words “may affect” as meaning “may affect in a negative, neutral or positive way” would not reflect:
– the concept of effects requiring “appropriate solutions to ensure that the Outstanding Universal Value is fully preserved”, or
– the policies for the conservation of heritage assets, including World Heritage Sites, in the National Planning Policy Framework (“NPPF”)
and it would be at variance with the equivalent previous guidance in paragraph 7.12 of the document “The Protection & Management of World Heritage Sites in England” published by English Heritage and the two government departments in 2009 in response to paragraph 172 of the World Heritage Committee’s Operational Guidelines – which in turn referred to “an adverse impact on Outstanding Universal Value”.
Whether a particular proposal “may affect” Outstanding Universal Value so as to justify informing the World Heritage Committee was a matter for the Government, with the advice of Historic England. But such a discretion for the Government did not imply an obligation for a local planning authority to consult Historic England and the DCLG on any proposal that the authority considered might affect Outstanding Universal Value whether harmfully or not.
Where the guidance referred to the action that local planning authorities can take, it was not in mandatory or even directory terms, but encouraging or, “advisory”.
If a local planning authority did not do what was “very helpful”, it could not be said to have breached any requirement in the guidance or any relevant policy in the NPPF.
There was a sufficient paper trail to show that the City Council had considered the position.
By consulting Historic England first in March 2015 and then in June, the city council enabled them to consider, at a sufficiently early stage, whether the proposed development would have an effect on the Outstanding Universal Value of the World Heritage Site, and, if necessary, to bring the proposal to the attention of the DCLG so that a view could be taken on referral to the World Heritage Committee.
Historic England either had no concerns or were insufficiently concerned about the application so as to advise the DCLG to call it in. In deciding not to call-in the application the Secretary of State must have considered any effect on the World Heritage Site or it’s setting.
There was nothing to suggest that the DCLG would have onward referred the application in any event. Not every proposal for development, that could have an effect upon Outstanding Universal Value, could be referred to the World Heritage Committee.
The fact that the city council did not:
– directly consult the DCLG, or indeed notify it of the proposal, until 25 August 2015, was not a material failure to follow the guidance in paragraph 18a-036;
– refer to the guidance in paragraph 18a-036 in it’s correspondence with Historic England and the two government departments did not mean that it acted inconsistently with that guidance. The question was:
“not whether it explicitly or even consciously followed the guidance, but whether it failed to act in accordance with the guidance in such a way as to vitiate it’s decision on the application for planning permission. In my view it plainly did not. I should add that there is no evidence to suggest that it was unaware of the advice in paragraph 18a-036. But in any event, whether knowingly or not, it acted consistently with that advice.”
……. I reject the concept that the effect of new development on the setting of a World Heritage Site must necessarily be an adverse impact, or indeed an impact of any kind, on it’s Outstanding Universal Value. That concept is not to be found in government policy in the NPPF, or in the Planning Practice Guidance. ……. development in the setting of a heritage asset, in this instance development in the buffer zone of a World Heritage Site, will bring about some physical and visual change within the setting. Such change may potentially affect the “significance” of the heritage asset, in this instance the Outstanding Universal Value of the World Heritage Site. I emphasize “potentially”. There might or might not be an impact on Outstanding Universal Value, and the impact might or might not be adverse. Whether the impact, if harmful, is such as to militate against the grant of planning permission is ultimately a question for the decision-maker to determine in the light of relevant policy, including policy in the NPPF. This will be a matter of fact and judgment in every case.”
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.