Planning matters blog

Planning for climate change: Is London STILL leading the way?

Nuala Wheatley 17 Aug 2021

Last year Lichfields published a series of blogs examining various climate change issues. The first in this series explored London’s response to date on the climate change crisis and reviewed the recent findings of the CCC’s 2020 report to parliament.

Almost one year on, climate change continues to be at the forefront of both public and government consciousness. This blog provides an update on London’s progress in achieving its Net Zero Target, in the context of a newly adopted London Plan and recovery from the Covid-19 pandemic.

Before the pandemic, the need to tackle the climate crisis was a policy priority both in London and across the UK[1]. However, the economic and social context for climate action has changed in importance in the past year and it is recognised that pursuit of low-carbon can support economic recovery. From this, policy proposals and funding packages are now being framed as a means to create jobs, promote a “green recovery” from Covid-19 and help the UK meet its revised 5-yearly carbon budgets and achieve its net-zero emissions target.

Over the past few months a number of key events have taken place including the Leaders Summit on Climate (22^nd and 23^rd April) and the 2021 G7 Summit (11^th – 13^th June) paving the way for vital UN climate talks at the COP26 summit, hosted by the UK in November 2021. Hosting these talks is a major responsibility and gives the UK more influence on the climate commitments of other countries. The power of our example is crucial and the Prime Minister has announced radical new climate change commitments that will set the UK on course to cut carbon emissions by 78% by 2035 and will require more electric cars, low-carbon heating and renewable electricity. The need to make progress was given emphasis by the recent publication of the IPCC Report[2].

The government is under pressure to back up this ambitious new target with investment and robust policies and to put the foundations in place for reaching Net Zero. It is doing so in the face of some domestic political challenge over the costs this might incur on poorer households and for managing public spending[3], and criticisms over the geo-political management of the issue in the run up to COP26[4].

Latest policy response

In the last year, several key policy documents have emerged at the National level, including the Planning for the Future White Paper (August 2020) and the Ten Point Plan for a Green Industrial Revolution (November 2020). The latter sets out the Prime Minister’s ambitious plan for a ‘green industrial revolution’ and covers clean energy, transport, nature and innovative technologies, with the headline-grabbing announcement of a ban on new petrol and diesel cars from 2030. Whilst many welcomed the plan’s ambition and the Government’s recognition that tangible action is required to meet society’s Net Zero aspirations, the RTPI stressed that “only by investing in local authority planning teams would a localised framework be established to ensure investment is properly integrated into the built and natural environment”.

This was recognised to some extent in the White Paper, which cited planning as having a central role in addressing climate change. However, its proposals did not require local plans to pursue carbon emission reductions in line with the Net Zero target under the Climate Change Act, nor did it address how national and local climate targets will inform the new local plans and planning decisions under the new system. In an effort to attempt to strengthen climate change considerations in local plans, the revised NPPF (2021) includes a change to the wording of the “presumption in favour of sustainable development” for plan making, and now requires plans to “mitigate climate change and adapt to its effects” (para. 11a). Whilst this might beef up the NPPF’s climate change policies, key conclusions from our previous blog were that the Net Zero Target is only achievable if it is embedded and integrated across all levels of policy and investment.

There is still some way to go in ensuring that national policy is supporting and enabling local authorities to align their local development plans with national objectives. Recent policy proposals have demonstrated a centralisation of planning policy consideration on topics that affect the climate, which disempowers the ability to consider those issues at the local level.

What’s going on in London?

The pandemic has impacted London significantly, with the widespread (if temporary) emptying of offices prompting new commuting behaviours and changes to lifestyle. Headlines last year showed a dramatic fall in carbon emissions during lockdown – demonstrating that it is possible to reduce emissions in a short period of time. However, these reductions are largely linked with the slowing of the economy.

In response to the pandemic, The GLA has produced a London Recovery Programme[5] which intends to ‘tackle the climate and ecological emergencies and improve air quality by doubling the size of London’s green economy by 2030 - accelerating job creation for all.’ Sadiq Khan has also spoken about the possibility of a Green New Deal for the city that will ‘increase access to green spaces, support active travel and zero emission fleets to eradicate air pollution, help adapt to climate change and deliver better health.’

These strategies are supported by the London Plan which was published on 2 March 2021.[6] Key headlines from the plan, relating to climate change, include the redefinition of zero carbon, requiring new buildings to meet at least 35% reduction of carbon on site with at least 10% (housing) and 15% (non-housing) from energy efficiency (paras. 9.2.5-9.2.7). This demonstrates how reducing energy requirements could be achieved through good design. The plan also introduces the regulation of embodied carbon levels in proposed buildings, requiring all major developments to be Net Zero Carbon by 2030. Its welcome policies mean all new developments must “calculate whole lifecycle carbon emissions through a nationally recognised assessment and demonstrate actions taken to reduce them” (Policy SI 2, Part F).

In the context of the now adopted London Plan, the response of Boroughs (in terms of climate emergency declarations and the target dates for reaching net zero emissions) has varied (as shown below).

London headline figures

29/33 (88%) London Boroughs have declared a climate emergency.
24/29 (82% of those that have declared) have set targets to become carbon neutral earlier than the UK/London Plan target.
Only 2 boroughs have allowed themselves until 2050 to reach carbon neutral.
The boroughs that haven’t declared a climate emergency are all outer London boroughs.

Whilst most London Boroughs have now made significant commitments to net-zero carbon, it is not yet clear how the reduction targets are to be implemented.

We are beginning to see London Boroughs advancing beyond these first steps of recognising the climate crisis by developing strategies to reduce emissions and create on the ground change. LB Greenwich has consulted on its Greenwich Carbon Neutral Plan (2020) which includes the principle of reducing emissions from new buildings, by committing to “strengthen the Local Plan by 2021 to deliver zero carbon development – through adopting a tiered carbon off-set price via SPD; increasing planning officer capacity to negotiate higher sustainable standards in new development; and evaluating options for a Local Plan review”. Similarly, LB Merton’s Climate Strategy and Action Plan (2020) links to the existing Strategic Objectives and Core Strategy planning policies of the Local Plan which features climate and carbon policy requirements, but also identifies the need to draft Local Plan policies in line with the London Plan: including net-zero carbon development for new buildings and reducing embodied carbon.

Whilst London Boroughs do appear to be progressing their Climate Strategies/policies, there is still a long way to go and it will need a continuing commitment and development of expertise at city and borough level. The presence of the Mayor of London as a regional planning authority as part of a compact-city approach to strategic planning means that London, unlike anywhere else in the UK, has its own regional plan and the opportunity to develop robust planning policies, setting strong standards to inform and guide the policy approaches of the 33 London Boroughs.

But is it the case that London is leading the way, or are local authorities elsewhere in the UK making significant progress without the backing of an additional tier of governance? Our forthcoming research on the UK-wide response of local authorities to climate change will explore place-based responses to the Climate Emergency across the UK.

[1] As evidenced by the introduction of the Committee on Climate Change (‘CCC’) (2008), the UK’s commitment to the UN Paris Agreement and the legislation of a Net Zero emissions target of 2050[2] The report and its background appendices is available here: https://www.ipcc.ch/report/sixth-assessment-report-working-group-i/[3] The Office for Budget Responsibility estimated the total cost to the UK of reaching net zero by 2050 could reach £1.4trillion. The National Infrastructure Commission says the poorest tenth of households will pay an extra £80 a year in bills by 2050, the richest tenth an extra £400. HM Treasury is reviewing the costs of the overall programme.[4] https://www.politico.eu/article/boris-johnson-climate-problem-conservative-government-cop26/[5] https://www.london.gov.uk/sites/default/files/recovery_programme_overview.pdf[6] https://www.london.gov.uk/sites/default/files/the_london_plan_2021.pdfImage credit: @Aquobex via Twitter

Housing Land Requirement – A very average approach

Gordon Thomson 12 Aug 2021

The Scottish Government recently amended Scottish Planning Policy (SPP) and introduced a new Planning Advice Note (PAN 1/2020 – December 2020). This was widely recognised as a move to avoid the tilted balance becoming a mainstay of the Scottish planning system and to direct the industry toward a standardised methodology for calculating the extent of a 5 year housing land supply (HLS) against housing land requirements (HLR). It was also acknowledged to be an interim intervention in advance of National Planning Framework 4 being approved, at which point it would be expected that these measures will be incorporated.

All the West-laid Plans: The unmet housing needs of the Greater Birmingham and Black Country Housing Market Area

Myles Wild-Smith 09 Aug 2021

In January 2021, the Minister of State for Housing, the Rt Hon Chris Pincher MP, set out clear guidance that local planning authorities [LPAs] should continue plan-making despite the challenges presented in 2020/21 by Covid-19 and pending policy changes signalled by the Planning for the Future [PftF] White Paper. In his Written Ministerial Statement, Pincher once again impressed upon LPAs the importance of ensuring Local Plans are up to date, stating that they are critical to “help ensure that the economy can rebound strongly from the COVID-19 pandemic. Completing Local Plans will help to ensure that we can build back better and continue to deliver the homes that are needed across England.”

As many planning professionals will be well aware, the West Midlands has been struggling (unsuccessfully) with the significant strategic challenge of meeting the unmet housing needs of Birmingham for a number of years. Many authorities within the Greater Birmingham and Black Country Housing Market Area [GBBCHMA][1] have been undertaking Local Plan Reviews to grapple with how they can best assist Birmingham in addressing its stated housing shortfall of c.37,900 dwellings by January 2020, as was established in the adopted Birmingham Development Plan [BDP] (2011-2031).

However, like many of Lichfields’ clients across the West Midlands, I have spent the last few years watching, exasperated, the glacial pace of plan-making within the region. This is not just about numbers in a theoretical Position Statement – this is affecting countless real households who cannot access the housing needed because simply not enough homes are being built in this sub-region.

In the last few months, we have seen a resurgence in plan-making in this part of the West Midlands, with several Regulation 18 consultations and Local Plan submissions to the Secretary of State. And finally, the Inspector’s Report for the North Warwickshire’s Local Plan, originally submitted under the National Planning Policy Framework’s [NPPF] transitional arrangements way back in March 2018, has been published.[2] Interestingly, and building on Simon Ricketts’ unusual planning metaphor[3], this would have allowed sufficient time for the birth of at least two elephants, or three camels. Even so this recent uptick in plan-making can do little to cover up the fact that the region has been plagued by housing shortages for years, and is still failing to plan for these needs either strategically or promptly.

The publication of the Draft Black Country Plan in July 2021 (in advance of its formal consultation[4]) has once again brought this issue to the fore. The emerging plan has identified an extremely high housing shortfall in the order of 28,000 dwellings up to 2039 across the Black Country. This is on top of the existing shortfall in Birmingham up to 2031, which the other districts were already struggling to meet. The inability of the main urban centres of the GBBCHMA to meet their minimum housing needs is therefore a recurrent strategic planning issue, which is unlikely to resolve itself without significant bold intervention.

Birmingham City Council [BCC] remains steadfast that there was no need for the Council to review its BDP, as the GBBCHMA authorities had made “significant progress” towards meeting Birmingham’s unmet needs[5]. Indeed, the July 2020 Position Statement concluded that the unmet need was now ‘just’ 2,597 dwellings to 2031. However, having reviewed the outcomes from the recent spate of plan-making activity across the GBBCHMA, I think it is pretty clear that that this is not the case. Indeed, several of the assumptions underpinning BCC’s position on supply have not actually materialised. Having reviewed each Council’s stated housing contributions, my view is that the acute level of unmet housing need up to 2031 will not be addressed, even before we factor in the emerging needs of the Black Country up to 2039.

Birmingham’s unmet housing need saga

1. How much?

Given the complexity of the debate, it is perhaps worthwhile to first set out how Birmingham’s unmet housing need has evolved.

BCC’s position has primarily been set out within the ‘2018 Strategic Growth Study’ (‘the 2018 SGS’), The ‘Housing Need and Housing Land Supply Position Statement’ (September 2018) (‘the 2018 Update’) and most recently the ‘Greater Birmingham and Black Country Housing Market Area (GBBCHMA) Housing Need and Housing Land Supply Position Statement’ (July 2020) (’the 2020 Position Statement’). A summary of the concluded shortfall is shown below. The chart compares how the original 37,900 unmet need identified in the original BDP has been gradually whittled down by successive supply reviews, driven by BCC.

Figure 1 Comparison of GBBCHMA Unmet Housing Need Positions

Source: Lichfields’ analysis, based on GBBCHMA Position Statements

Each of these positions has featured very different land supply positions, generally reflecting either changing supply evidence or differing assumptions on densities.[6] Indeed, the latest position reflected BCC’s ‘Strategic Housing Land Availability Assessment (SHLAA) 2019’ data, which concluded that completions over 2011 to 2019 had exceeded the requirement by c.1,374 dwellings and that the Council’s supply of land has increased by c.14,300. It would be interesting to explore whether all of the 14,300 additional dwellings identified are developable.

Setting that to one side, this seems to indicate a downward trend in Birmingham’s unmet need, even though no Local Plan has passed examination which has formally committed to meeting Birmingham’s unmet need. Taking the 2020 Position Statement at face value suggests that this significant unmet need challenge has been met. However, the raft of position statements above all use an unmet housing need figure derived for the whole GBBCHMA (i.e. Birmingham and the Black Country) which has not been tested through the examination process.

So, what is the unmet housing need figure GBBCHMA authorities should be addressing? Arguably, the only adopted – and examined – shortfall is that which has been set out in the BDP. Therefore, the actual figure BCC ought to be considering the contributions against remains the adopted 37,900 shortfall.

2. How much is not enough?

So, are the GBBCHMA authorities meeting this 37,900 need? Appendix 2 of the 2020 Position Statement sets out the allocated and emerging contributions made by the GBBCHMA authorities, which it says totals between 18,130-20,130 dwellings:

Figure 2 Summary of Direct Contributions to GBBCHMA’s housing shortfall

Source: Lichfields based on Appendix 2, 2020 Position Statement

This position is now over a year old, and the debate has moved on; furthermore, there are critical flaws in the assumptions underpinning the direct contributions summarised above. Firstly, BCC has ‘banked’ all of the commitments for the whole of the GBBCHMA, including any commitments for other GBBCHMA authorities. This is now particularly pertinent given the Black Country’s emerging unmet housing need of 28,239 homes up to 2039.[7] Secondly, several of the contributions are now markedly less than stated. Looking at these points by district:

South Staffordshire – ‘Up to 4,000’: It is not clear how much of South Staffordshire District’s emerging c.4,000 dwelling contribution can realistically be said to be exclusively Birmingham’s, given that even the most cursory glance at a map shows that the District wraps around Wolverhampton, Stourbridge and to a lesser extent Walsall. It will obviously have a major role in meeting the Black Country’s emerging unmet needs up to 2039. Furthermore, there are no signed Statements of Common Ground [SoCG] or Memorandums of Understanding [MoU] agreeing to this contribution for Birmingham. At best, only a small part of this 4,000 contribution is likely to be meeting Birmingham’s unmet needs, with the bulk going towards the Black Country’s;[8]
Lichfield – ‘4,500’: In the Lichfield District Local Plan 2040 Regulation 19 consultation, Lichfield City Council has already reduced its contribution from c.4,500 to c.2,665. Moreover, the Council is apportioning 75% of this contribution to help meet the Black Country’s emerging unmet housing need, reducing its contribution to Birmingham from 4,500 to 665 (paragraph 4.22);
North Warwickshire – ‘3,790 + 620’: The North Warwickshire Local Plan has now passed its examination. The Examining Inspector’s Report notes that the Memoranda of Understanding between “NWBC and BCC and TBC acknowledge that the ‘discrete’ figure of 913 homes is subsumed within the overarching figure of 3,790” (IR127). In essence, only 2,877 dwellings are actually going towards meeting Birmingham’s unmet housing needs; and
Stratford on Avon – ‘2,720’: The 2020 Position Statement states that this c.2,720 dwelling contribution arises from the Coventry and Warwickshire MoU, which estimated that c.50% of the Council’s c.5,440 dwellings, above its demographic need, could be apportioned 50/50 between the GBBCHMA and Coventry and Warwickshire HMA. However, this is completely at odds with the Inspector’s conclusions at the Core Strategy Examination and the purpose of Policy CS.16, which is to provide a mechanism to meet these needs. Indeed, the Inspector was clear that the “MoU has identified a figure but this is based on an incorrect assumption that everything over and above the demographic need is ‘surplus’ and available to meet the needs of others.” (IR62). In essence, only the 600 dwellings being brought forward through the emerging Site Allocations Plan would contribute towards Birmingham.

Taking all of this into account, whilst Birmingham’s unmet housing need has probably reduced from the original 37,900 in 2017, there remains a likely – and at present, unaccounted – shortfall of between c.11,479-15,479 dwellings up to 2031.[9] This is because several of the ‘banked’ housing contributions from other HMA districts are earmarked to help meet the Black Country’s needs.

A call to (regional) arms

Despite several years of plan-making, and ‘evidence’ suggesting it had, ultimately, it is clear that Birmingham’s unmet housing needs have not been fully addressed within the GBBCHMA, with between c.11,500 and 15,500 remaining up to 2031. With several authorities unable to help meet these needs, and several others already committed elsewhere, it is clear that GBBCHMA’s current approach to plan-making and strategically addressing these needs through the Duty to Cooperate is not working. At present, it is unclear as to how these needs will be addressed.

This is, of course, only one part of the problem. There is an emerging c.28,000 shortfall up to 2039 elsewhere in the HMA, in the Black Country. Further still, beyond 2031, there is likely to be a very considerable level of additional unmet housing need arising in Birmingham as a result of the City being subject to the Government’s 35% urban uplift[10] on its local housing need figure, whilst the LHN figure will rise still further when the standard method Local Plan ‘cap’ is removed in January 2022.[11]

There is no single panacea to determine the proportion of unmet needs that LPAs should seek to accommodate from others. However, that is not an excuse to ignore the issue and the West Midlands urgently needs to grapple with this before the level of need spirals ever further out of reach (see for example, London and the Greater South East). My view is that a formal mechanism needs to be agreed to ensure that the LPAs in the HMA are compelled to work together to meet the unmet housing needs of both Birmingham and the Black Country promptly. It needs an evidenced-based approach to distributing these needs amongst the authorities, perhaps one that is similar to the functional relationship approach taken by North Warwickshire[12], to ensure that this need is distributed sustainably. But, at the very least, and as Zack Simons has said,[13] we need to talk about the Green Belt. A regional review is long overdue. Whilst the need to regenerate brownfield sites is an important part of the mix, the release of large-scale Green Belt sites in sustainable locations, whilst politically difficult, is a logical (and sensible) approach to comprehensively addressing this critical issue.

Until then, all the west is laying plans, but in the meantime meeting unmet housing needs has gone awry..

[1] Comprising the seven Greater Birmingham districts, the four Black Country districts, South Staffordshire, North Warwickshire and Stratford-on-Avon (The latter two also fall within the Coventry-Warwickshire Housing Market Area). It can also be further refined into two sub markets: the Birmingham sub-market and Black Country sub-market.[2] Published 20^th July 2021[3] Simoncity - Gestation Of An Elephant: Plan Making. Available at: https://simonicity.com/tag/local-plan-examination-soundness/[4] The formal consultation will start on the 16^th August and run for eight weeks to 11^th October 2021[5] Birmingham City Council (2020): Annual Monitoring Review 2020, page 3[6] The 2017 land supply data in the 2018 Update suggested that the land supply had increased by 5,629 since the 2018 SGS. However, the land supply figures are not quite directly comparable, as the 2018 Update removes the 5%-15% non-implementation discounts on supply. Furthermore, it does not apply the 13,000 additional dwellings resulting from the increased densities.[7] Para 3.21, The Draft Black Country Plan (July 2021)[8] A letter (dated December 2019) from the Association of Black Country Authorities requests that the whole contribution is made towards the Black County’s unmet needs, rather than Birmingham’s.[9] Dependent on how much of South Staffordshire’s 4,000 dwelling contribution can be attributed towards Birmingham.[10] Both Birmingham and Wolverhampton and subject to the 35% urban centres uplift, following the Government’s changes to the standard method in December 2020 as set out in the Planning Practice Guidance.[11] PPG ID: 2a-004: “Where the relevant strategic policies for housing were adopted more than 5 years ago (at the point of making the calculation), the local housing need figure is capped at 40% above whichever is the higher of: a. the projected household growth for the area over the 10 year period identified in step 1; or

1. the average annual housing requirement figure set out in the most recently adopted strategic policies (if a figure exists).”

[12] North Warwickshire’s Local Plan considered the proximity, connectivity and strength of functional inter-relationships with neighbouring areas (IR121), using the 2011 Census data relating to commuting trips between Birmingham and North Warwickshire to establish the scale of its contribution. This evidence-based approach was endorsed by the Inspector (IR127).[13] We need to talk about England’s Green Belt (Available at: https://www.ft.com/content/f240e825-eca0-4fba-8813-86dfaa0a6933)

What is 'Substantial Harm' to a designated heritage asset?

Dominic Holding 02 Aug 2021

The level of harm to designated heritage assets (or their setting) frequently forms a point of disagreement between applicants and decision-makers, leading to the refusal of many planning applications. 'Substantial harm' is a key policy threshold in England which is often central to the debate.

But what is substantial harm and how do we measure it? This long-contested issue was tested very recently at a public enquiry, in a case involving the proposed installation of a UK Holocaust memorial at Victoria Tower Gardens in Westminster, London. This blog examines how the meaning of substantial harm can be seen to have evolved over time, and what the Victoria Tower Gardens decision could mean for how substantial harm is measured in the future.

The concept of substantial harm to a designated heritage asset was introduced in 2012, with the publication of the National Planning Policy Framework [NPPF]. Paragraph 199 of the NPPF (as amended) identifies three levels of harm to the significance of designated heritage assets, substantial harm, total loss, or less than substantial harm. Paragraph 201 goes on to state that, where proposed development will lead to substantial harm to (or total loss of) the significance of a heritage asset, local authorities should refuse consent, unless it can be demonstrated that substantial harm or total loss is necessary to achieve substantial public benefits that outweigh that harm. The NPPF makes clear that instances where public benefits outweigh substantial harm should be "exceptional" in most cases, or "wholly exceptional" in respect of assets of the highest significance [§200]. The NPPF (and its subsequent revisions) do not seek to define substantial harm, instead advocating a balanced judgement, having regard to "the scale of any harm or loss and the significance of the heritage asset" [§203].

As is often the case with national planning policy, the interpretation of substantial harm is a debate that has been contested in the courts. For a number of years, one particular case has been seen to offer some clarity on how to measure this important policy threshold, in the absence of detailed policy or guidance. In the 2013 case of Bedford BC v SSCLG38, the High Court held that in order for harm to designated assets to be considered substantial, "the impact on significance was required to be serious such that very much, if not all, of the significance was drained away… One was looking for impact which would have such a serious impact on the significance of the asset that its significance was either vitiated altogether or very much reduced.".

This case sets a particularly high threshold for substantial harm, suggesting that there is very little difference between the substantial harm to, and the total loss of, an asset's significance. The Bedford case was seen by many as providing much-needed clarity on the meaning of substantial harm and the application of the heritage policies within the NPPF.

On the 23^rd of July 2019, the National Planning Practice Guidance [NPPG] was updated to provide additional clarity on assessing substantial harm. The NPPG at Paragraph 18a-018 states that:

“Whether a proposal causes substantial harm will be a judgment for the decision-maker, having regard to the circumstances of the case and the policy in the National Planning Policy Framework. In general terms, substantial harm is a high test, so it may not arise in many cases. 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. It is the degree of harm to the asset’s significance rather than the scale of the development that is to be assessed. The harm may arise from works to the asset or from development within its setting.”

The NPPG, like the NPPF, advocates professional judgement. Whilst the NPPG guidance is open to interpretation, it does not appear to explicitly set the bar for substantial harm as high as the Bedford judgement. In this context, it could be perceived that there is some tension between the NPPG's definition of substantial harm and the established Bedford case law. This begs the question – would the Bedford case have been decided differently if the NPPG guidance have been in place at that point in time? Perhaps. Was the NPPG intended as a corrective, following the Bedford judgement? It is possible.

As mentioned above, this matter was examined very recently, in respect of a proposed UK Holocaust memorial at Victoria Tower Gardens in Westminster. The case (reference APP/XF990/V/19/3240661) had been called in for determination by the Secretary of State. Planning permission was granted for the memorial on 29^th July 2021. In considering how substantial harm should be measured, the inspector stated that:

"The applicant relies on the definition of substantial harm (and the calibration of lesser harms that flow from it) set out in the Bedford case, broadly defined as a high test. Westminster City Council on the other hand prefer to rely on the example of substantial harm set out in paragraph 018 of the PPG, a definition, as I understand it from their oral evidence, which sets the test at a lesser height…

…My interpretation of this point, also bearing in mind paragraph 018 of the PPG has been formulated in light of the Bedford judgement, is that there is in fact little to call between both interpretations. Bedford turns on the requirement for the harm to be assessed as ‘serious’ (with significance needing to be very much, if not all, ‘drained away’) in order that it be deemed substantial. Alternatively, paragraph 018 indicates that an important consideration would be whether the adverse impact ‘seriously’ affects a key element of special interest. In both interpretations, it is the serious degree of harm to the asset significance which is the key test. Moreover, in accordance with the logic of the Bedford argument, 018 explicitly acknowledges that substantial harm is a ‘high test’.”

I would personally question the view that an asset’s significance being ‘seriously affected’ and ‘very much, if not all, drained away’ can be considered to be one and the same. However, it is perhaps not surprising that the Inspector has tried to regularise what has long been perceived as a conflict between case law and guidance; one that has caused endless debate between practitioners.

This decision may provide some clues as to the direction of travel in the interpretation of what constitutes substantial harm, and it will be interesting to see how relevant the Bedford case continues to be in the future. Perhaps the focus will move away from perceived inconsistencies in how substantial harm is measured, and towards the proposals and the associated impacts. The door also appears to be left open as to whether or not it is appropriate to sub-categorise different types of ‘less than substantial’ harm. Ultimately however, assessing whether a proposal causes substantial harm remains a subjective judgement, dependent on the evidence and the specifics of the case.

That said, it is important that such a judgement is based on a robust assessment. Various recent cases have illustrated how vulnerable planning permissions can be to judicial review when the evidence presented is found to be flawed or misleading (including both the Heritage Impact Assessment submitted by the applicant, as well as the heritage judgement set out in an LPA's Committee Report).

In most cases, we would recommend undertaking an early assessment to understand the significance and sensitivity of the heritage assets which could be affected by a development, in order to understand any potential issues and constraints as soon as possible, and to give an understanding of the site's development potential.

If you are seeking advice in respect of development proposals affecting heritage assets and would like to discuss these matters in more detail, please do get in touch.

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