Applying heritage policies: levels of harm

A High Court judge has recently issued an important ruling concerning the application of heritage policies. Killian Garvey and Philip Robson examine the outcome.

The Court recently handed down judgment in R.(oao James Hall and Company Limited) v City of Bradford Metropolitan District Council and Co-Operative Group Limited [2019] EWHC 2899 (Admin).

Her Honour Judge Belcher found for the Claimant on all three grounds of challenge. In doing so, the Learned Judge clarified a number of important points concerning heritage policies.

The Site was within the setting of the Haworth Conservation Area, albeit not within the Conservation Area itself. Thus, it was agreed that the duty within s.72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 did not apply, but national and local policy concerning the setting of heritage assets did apply. In this context the Court made the following points.

Firstly, the Court held that there are only three gradations of harm in heritage terms:

34. In my judgment the three categories of harm recognised in the NPPF are clear. There is substantial harm, less than substantial harm and no harm. There are no other grades or categories of harm, and it is inevitable that each of the categories of substantial harm, and less than substantial harm will cover a broad range of harm …

The Court went on to say that even limited or negligible harm was enough to fall within the bracket of ‘less than substantial harm’:

34.… It will be a matter of planning judgement as to the point at which a particular degree of harm moves from substantial to less than substantial, but it is equally the case that there will be a number of types of harm that will fall into less than substantial, including harm which might otherwise be described as very much less than substantial. There is no intermediate bracket at the bottom end of the less than substantial category of harm for something which is limited, or even negligible, but nevertheless has a harmful impact. The fact that the harm may be limited or negligible will plainly go to the weight to be given to it as recognised in Paragraph 193 NPPF. However, in my judgment, minimal harm must fall to be considered within the category of less than substantial harm. 

This is an important clarification of the law. It is not uncommon for heritage experts to acknowledge a heritage impact but then to seek to discount it as being irrelevant on the basis that it is a ‘negligible harm’. This judgment clarifies that even this level of harm is sufficient to engage the heritage paragraphs within the NPPF.

Secondly, the Court held that it was inappropriate for the Defendant Council’s officers to pre-determine the impacts on heritage assets and not include these judgements in the committee report.

Killian Garvey and Philip Robson are barristers at Kings Chambers. Instructed by Shoosmiths solicitors, Killian acted for the Claimant in challenging the council’s grant of planning permission. Philip acted for the defendant council.