IHBC’s ‘Management’ Signpost: UK heritage planning law review – matters of judgment, looking back and ahead

buildingsRobert Gowing of Hogan Lovells LLP has offered some planning thoughts and takes from 2023 to inform 2024.

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… assessment of heritage impacts continues to be a popular ground of challenge and debate…

Robert Gowing of Hogan Lovells writes:

Over the last year, planning, and more particularly planning reform, has become an increasingly hot political topic, even managing to grab headlines in the press and featuring in many of the speeches and promises made by the main political parties. In and amongst this clamour, the noise around heritage protection has been relatively subdued. However, as this part of our end-of-year review shows, not only was heritage the focus of one of most talked-about planning decisions of the year, but for the first time in a while, we’ve seen changes in legislation that protects the historic environment…..

The assessment of heritage impacts continues to be a popular ground of challenge and debate in the context of planning decisions. This is despite the growing body of case law that has helped to guide the way in which decision-makers address the interaction between the statutory tests in the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Listed Buildings Act) and chapter 16 of the National Planning Policy Framework (NPPF).

So what interesting heritage development have we seen in 2023?

M&S Oxford Street – all about the balancing act

On the 20th of July, the Secretary of State Michael Gove published his long-awaited decision on proposed redevelopment by M&S of its flagship shop at the western end of Oxford Street in London. Called-in after Westminster resolved to grant permission (a decision supported by the GLA), and after a lengthy public inquiry, the Secretary of State rejected the recommendations of his Inspector, and refused permission. We provided a detailed review of this decision back in July (see here), which relates to the proposed demolition of an early 20th century unlisted building (Orchard House) facing onto Oxford Street to provide for a new mixed retail and office building.

While much of the public attention centred around embodied carbon and the debate between retrofitting rather than full demolition, heritage impact was a key and arguably determinative issue. The Inspector and the Secretary of State agreed that the proposals would impact a number of heritage assets (including the Grade II* listed Selfridges Building, and through the loss of a non-designated heritage asset), and that in all instances this resulted in ‘less than substantial harm’. However, in assigning weight to such harm to enable this to be assessed against the public benefits of the scheme, their views diverged.

Where the Inspector attributed only ‘moderate weight’ to the heritage harm, Michael Gove disagreed, claiming that ‘ great weight’ being attributed to the heritage harm and in particular that the loss of Orchard House be given ‘substantial weight’. In applying this increased weight into the balance, Gove also tended to attribute less value to the public benefits in the scheme than the Inspector, and concluded that the heritage harm was not sufficiently outweighed. Gove further found that although the development had complied with elements of the design policies in the London Plan, when considering the heritage harm, he concluded the proposals could not be said to be ‘the right approach for this particular location’.

The decision demonstrates the subjective nature of assessing heritage harm, which ultimately becomes a matter of planning judgment. Although challenges involving issues of planning judgment are notoriously difficult, M&S lodged a statutory challenge against the decision, and in late November, the High Court confirmed permission to proceed, with a hearing expected early in the New Year. Save Britain’s Heritage, the campaign group that had led the objections to the proposals from the outset have confirmed that they continue to defend the decision to refuse permission. The outcome of this challenge is definitely something to keep an eye on.

The A303 Stonehenge Tunnel – will it ever happen?

Development consent for the controversial 13 km road and tunnel scheme for the A303 near Stonehenge was first granted back in November 2020. However, a successful judicial review in the High Court resulted in the decision being quashed in July 2021. One of the grounds of challenge was that the then Secretary of State for Transport had not been provided with specific heritage assessment information and so was unable to form a conclusion on those heritage assets.

Two years later, and following an extended redetermination process, on 14 July 2023, Transport Secretary Mark Harper confirmed that the development consent was again granted for the scheme.

Campaigners ‘Save Stonehenge World Heritage Site’ were not deterred, launching a renewed legal challenge in August, and this was further supported by the UNESCO World Heritage Committee which issued a stern letter to the government in September, making clear that it did not consider the proposals should proceed in their current form. Without changes, they considered there would be a real risk that the Stonehenge site could end up on the ‘in danger’ list at risk of losing its World Heritage Site status, which was of course the fate of Liverpool back in 2021 (again due to concern over inappropriate development activities).

Permission to proceed with the legal challenge was confirmed and the hearing scheduled to take place in the week of 12 December (so as this article is being prepared). Even if this challenge is unsuccessful, we can expect the campaigners will consider seeking permission to appeal, which will further delay any certainty about the future of the scheme.

Heritage reforms in the Levelling Up and Regeneration Act 2023

On the eve of the proroguing of Parliament, the government pushed a number of bills across the line, including the Levelling Up and Regeneration Bill, with Royal Assent granted on 26 October. The majority of the heritage-related reforms that featured in the early drafts of the bill survived, including:

  • An express statutory duty to have special regard to the desirability of preserving ‘or enhancing’ has been extended to cover all designated heritage assets (as defined in the NPPF) and so extends to Registered Parks and Gardens, World Heritage Sites Scheduled Monuments, and Designated Shipwrecks, and includes the consideration of their setting.
  • The desirability to ‘preserve or enhance’ is now included in respect of the significance of listed buildings (this was already in place for conservation areas). This should help create a more consistent approach to assessment of impacts across all heritage assets, and is better aligned with the NPPF which stresses the desirability of ‘sustaining and enhancing’ the significance of heritage assets.
  • Creation of powers for local authorities to issue a new immediate temporary stop notice (TSN) in respect of listed buildings where they consider it expedient in respect of perceived breaches of listed building controls, and would remain in place for up to 56 days. The equivalent TSN under the Town and Country Planning is also amended to benefit from the same 56 day period. These powers extend the arsenal of existing planning control powers for local planning authorities.
  • The Act removes eligibility for compensation in respect of building preservation notices.
  • Requirements for maintaining historic environment record will be introduced subject to the government preparing regulation to guide storage and access arrangements (including the charging of fees for its use).

Whilst these are not ground-breaking or fundamental changes, they will ensure greater consistency in the approach to assessing the effects of development of the broad range of heritage assets. However, none of these changes have as yet come into effect, but are instead dependent on formal commencement dates being confirmed through secondary legislation. The reasons for this are not clear, but is consistent with the vast majority of other planning reforms contained in the Act.

Looking ahead to 2024

Continued scrutiny of the way in which decision makers assess heritage impact seems inevitable, as is the uncertainty arising from the extent to which planning judgment in this area is unavoidably subjective.

We should hopefully get a decision from the High Court on the A303 Tunnel scheme relatively early in the New Year, and will also need to look out to see if M&S are successful in forcing their proposals back for redetermination.

The timing for bringing into force the heritage reforms in the 2023 Act is less clear, but they in any event are unlikely to cause significant changes in the way in which heritage assets need to be considered as part of any proposed development.

With an impending general election on the horizon, we can expect 2024 to include many more debates and promises around planning reform, and we will have wait and see the extent to which these impact the historic environment.

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