Our heritage is of substantial value to us all

Does it matter?  Some think it does

Is it important?  Depends who you talk to.

What the devil are we talking about? Well Heritage of course.  Heritage is an emotive subject. Conversations can and do get heated. Very heated indeed. It is quite surprising sometimes how much passion an individual will come forth with regarding Heritage. But it’s something we’ll travel for, locally nationally and internationally. We don’t all travel for sun, sand and sangria.

And locally, heritage matters. Just ask Lydd Station Heritage Group, Dymchurch and District Heritage Group, Hythe Civic Society, Sandgate Heritage Trust, New Folkestone Society, The Shorncliffe Trust and Go Folkestone, to name but a few. Heritage matters to them and their members.

Folkestone & Hythe District Council have never implemented their Heritage Strategy. The Heritage Strategy has been out to consultation, back in 2018. Report Number C/18/57 came before Cabinet on the 12 Dec 2018 but has not been adopted. This leaves the lovers of our local Heritage, from Lydd, to Lyminge, Snargate to Sellindge and Fairfield to Folkestone, pulling their hair out at what they see as heritage vandalism,  in our district over the years.

But before we go any further, one has to know what heritage is, or rather a Heritage Asset is.  The National Planning Policy Framework comes to our rescue, and defines it so:

Heritage asset

A building, monument, site, place, area or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. It includes designated heritage assets and assets identified by the local planning authority (including Local Listing).

And to be  clear it also defines a Designated heritage asset:

A World Heritage Site, Scheduled Monument (Royal Miltary Canal), Listed Building (Folkestone Library), Protected Wreck Site, Registered Park and Garden, Registered Battlefield or Conservation Area (think Enbrook Park) designated under the relevant legislation.

Protecting both heritage assets and designated heritage assets through local heritage listing relies on the planning system. As such it is very important that the planning context is understood, as set out in the NPPF (a consultation is underway on proposed changes to the current NPPF and one can comment on line up until 11:45pm on 2 March 2023).

All local planning authorities have legal duties to have special regard to heritage, and the desirability of protecting listed buildings and their settings. Plus they must also pay special attention to the desirability of preserving or enhancing the character or appearance of conservation areas – (think Enbrook Park, where SAGA intend to build homes)

The Court of Appeal has said those legal duties mean that planning decision-makers must give “considerable importance and weight” to those heritage issues when they strike their planning balance, and that creates a “strong presumption” against granting planning permission.

As if Council planning officers didn’t have enough decision-making duties to consider already. The Court of Appeal in the Mordue case [2015] EWCA Civ 1243,  made clear, a planning decision-maker who works through the “fasciculus” (Latin for a bundle) of heritage policies, as set out in the NPPF will have met their statutory duties.

So what is in a Planning Officers fasciculus? Well you can find that here. But in a nutshell, for those who can’t be bothered to read it:

(a) great weight gets given to conserving “heritage assets”,

(b) if there’s substantial harm to, or total loss of the significance of, a designated asset, then permission should be refused “unless it can be demonstrated that the substantial harm or total loss is necessary to achieve substantial public benefits that outweigh that harm or loss” or the applicant can meet a series of tests designed to show the the building has no other viable use, and

(c) if there’s less than substantial harm to a designated heritage asset, then you weigh that against the scheme’s public benefits.

Then there is “significance” in the heritage context – i.e. the value of a heritage asset because of its heritage interest. And this is important. The NPPF doesn’t protect e.g. the view of an old building for its own sake. Or because the view can be seen from part of the building’s visual “setting”. What really matters is the extent to which that view contributes to the asset’s significance – a point made in the very useful Historic England guidance on this topic here. The Planning Practice Guidance on the historic environment is of significance too and can be found here.

But after reading the NPPF and  the Planning Pratice Guidance you’ll find neither actually define what “substantial” means. The Courts have tried on a number of occasions to define it.

In Bedford v Nuon  [2013] EWHC 2847 (Admin), Mr Justice Jay said that “for harm to be substantial, the impact on significance was required to be serious such that very much, if not all, of the significance was drained away”. And that “one was looking for an 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 approach has regularly been approved by planning inspectors and the Secretary of State.

Then there is Bramshill [2021] EWCA Civ 320, handed down by the Court of Appeal; which trumps the High Court, so read with care. Lord Justice Lindblom left the issue of “substantial” issue open. He said that “what amounts to “substantial harm” or “less than substantial harm” in a particular case will always depend on the circumstances. Whether there will be such “harm”, and, if so, whether it will be “substantial”, are matters of fact and planning judgment.” This open-ended approach is consistent with the PPG, which tells us it’s all a matter of judgment, and that substantial harm is a “high test”.

This is where it gets tricky, so sit up and pay attention, you at the back.

What about schemes where on the one hand there’s some harm to a building’s significance (if e.g. you’re knocking bits of it down – think FOLCA), but on the other there are heritage benefits (if e.g. your scheme maintains what remains of the building into the future and gives it a viable use).

Is it necessary to give “considerable importance and weight” to the harm? Is there any harm at all? Or if the heritage benefit outweighs the harm, is that considered to be net benefit? This is the “internal heritage balance”, a debate which has driven many to drink.

But back to Bramshill, Lord Justice Lindblom said that

(a) there’s no requirement to undertake an internal heritage balance, albeit you can legally do it, but still

(b) he didn’t think it mattered much whether you do it or not, because

(c) in the end, if public benefits – including heritage benefits – outweigh the harm, then you may, depending on how much harm we’re talking about, decide to grant permission anyway.

And whether you do or not is a matter of planning judgment, not law. And that judgment isn’t dictated by the heritage chapter of the NPPF.

There are also lessons to be learned by developers and objectors alike and is made clear in Sydenham Hill Estate in South London promoted by the City of London [2021] EWHC 1286 (Admin) and Liverpool City Council  v Redrow Homes [2020] EWCA Civ 861.

These two cases make it clear:

a) Make sure any planning committee report dealing with heritage matters, fully and accurately records the conservation officer’s consultation response and mention

(b) the statutory duties,

(c) the key policy duties we list above, including the need to give great weight to the conservation of heritage assets, and

(d) remember all that great weight stuff not only when you’re listing the relevant policies, but also when you come onto the balancing exercise.

Basic you might think. But as the cases cited above show, the listed points were not done and objectors highlighted these effectively.  No doubt these judgments will lead to long planning reports. And potentially defensive drafting. But better all this than any planning permission involving heritage being discarded like flotsam and jetsam by a High Court judge.

So after all of that, would adopting the Folkestone & Hythe District Council Heritage Strategy in a revised form, be a wise and prudent idea?

In short, yes it would.

Heritage matters. It really does,  as why else would you visit Canterbury Cathedral, Tower of London, Parliament, Stonehenge, The Giant’s Causeway, Ironbridge Gorge, The Lake District, Kew Gardens and many other locations here in the UK and around the world.

Let’s get it done, let’s get the Heritage Strategy adopted as it is of substantial value to us all.

The Shepway Vox Team

Journalism for the People NOT the Powerful