12 Mar 2018
The draft revision of the NPPF largely conserves current NPPF heritage policy. There is some tinkering at the edges, with text moved around and new headings added. The one or two more significant revisions are discussed here.
The proposed para. 189 (currently within para. 132) includes additional text confirming that when considering the impact of development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation ‘irrespective of the degree of potential harm to its significance’. This is to bring the NPPF in line with statute and case law on listed buildings and conservation areas. Sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 require ‘special regard’ and ‘special attention’ to be paid to the desirability of preserving listed buildings and preserving or enhancing the character or appearance of conservation areas. This law does not refer to harm or to varying levels of harm, which the NPPF does.
Therefore draft para. 189 requires that any harm, even if it is ‘less than substantial’ (currently para. 134, revised and now proposed at para. 192), should be given ‘great weight ’ in the decision-making process. This approach has been reinforced by numerous court judgments, the two earliest examples of which being Barnwell Manor Wind Energy Ltd v East Northamptonshire DC and R. (on the application of Forge Field Society) v Sevenoaks DC from 2014. The insertion of this new text will not introduce any changes for heritage practitioners who have been working on this basis for a number of years now.
Proposed para. 192 deals with less than substantial harm to heritage assets and, as currently, requires harm to designated heritage assets to be weighed against the public benefits of the proposal. There is no longer the requirement of ‘securing its optimum viable use’. This is presumably to remove the uncertainty around what is ‘optimum viable use’, which to an owner may be the most lucrative development but to a decision-maker may be the least harmful to the asset.
The draft NPPF also clarifies, at footnote 7, that with regard to the presumption in favour of sustainable development (paragraph 11), it is only policies relating to designated heritage assets that provide ‘a strong reason for restricting […] development’ (plan-making) or ‘a clear reason for refusing the development proposed’ (decision-taking), i.e. not non-designated heritage assets (except for non-designated heritage assets of archaeological interest, which are demonstrably of equivalent significance to scheduled monuments). The current NPPF leaves some room for interpretation around a similar aspect of the presumption (at footnote 9, relating to paragraph 14), by suggesting that policies including those for designated heritage assets are just examples. The draft NPPF usefully provides a clear, closed list which only references designated heritage assets.
One obvious error within the draft NPPF is the incorrect cross-referencing in para. 197 to the draft paragraphs that deal with ‘substantial’ and ‘less than substantial’ harm (which should be paras 191 and 192 respectively). This aptly highlights the confusion that arises when policies are updated and previously learnt paragraph numbers need to be re-learned!
The Annex 2 Glossary deletes the definition of ‘historic environment’ (possibly the current definition is too broad?) and for ‘significance (for heritage policy)’, it includes reference to the ‘Statement of Outstanding Universal Value’ for World Heritage Sites.
This draft NPPF revision could have - but has not - taken the opportunity to address a number of issues that we encounter when applying current NPPF polices, such as:
defining ‘substantial’ harm (albeit national planning practice guidance attempts to do so);
acknowledging that there is a significant range within ‘less than substantial’ harm from very minor harm to just below the threshold of ‘substantial’; and
addressing the implications of schemes which involve both harmful and beneficial effects – can a weighting exercise be carried out to establish the overall harm, or otherwise, to a designated heritage asset?
The draft NPPF remains silent on these points, which unless amended in the final publication due before the summer, means it will continue to be up to practitioners to grapple with these ongoing issues. We would recommend that thought is given to incorporating these points.
It is to be hoped that the final drafting will both conserve and enhance the NPPF policy guidance for heritage assets.
See our other blogs in this series:
National Planning Policy Framework review: what to expect?
Draft revised National Planning Policy Framework: a change in narrative
NPPF consultation proposals – what could they mean for town centres?
NPPF consultations – what could they mean for designers?
Draft NPPF: implications for aviation?
Draft NPPF: business as usual?
Draft NPPF: more emphasis on healthy and safe communities
Lichfields will publish further analysis of the consultation on the draft revised NPPF and its implications. Click here to subscribe for updates.