Out-Law / Your Daily Need-To-Know

Application of planning policy in hands of decision-makers not courts, says court

Out-Law News | 15 Mar 2021 | 3:45 pm | 2 min. read

A court has clarified that assessment of what constitutes "isolated homes in the countryside" and the weighing of harm against benefits in proposals relating to heritage assets are both matters of planning judgment.

The Court of Appeal of England and Wales was ruling in a case relating to the redevelopment of the former Bramshill Police College, Hampshire, which includes a number of designated heritage assets including a grade I listed Jacobean mansion and a grade I registered park and garden.

The site’s owners, development company City & Country Bramshill, made a number of planning applications for conversion of the mansion to alternative uses and for redevelopment of land surrounding the mansion, mainly to provide new residential development. All of the planning applications were refused and subsequently appealed, with the majority of the appeals being dismissed.

City & Country, which was represented by Pinsent Masons, the law firm behind Out-Law, brought statutory challenges under sections 288 and 289 of the Town and Country Planning Act 1990 against the dismissals. The High Court dismissed the majority of the grounds of claim, and the Court of Appeal dismissed the resulting appeal.

The Court of Appeal's judgment on two of the grounds will be of particular interest to planning lawyers and developers: the interpretation and application of the phrase “isolated homes in the countryside”; and the application of the balancing of harms and benefits in relation to proposals for development affecting heritage assets, both of which are set out in national planning policy in the National Planning Policy Framework (NPPF).

The court ruled that the phrase “isolated homes in the countryside” was a concept of national policy and not law and, as with many of the broadly framed policies in the NPPF, its application would depend on the facts of the case and decision-makers would have to exercise their planning judgment in a wide variety of circumstances.

The court also analysed the application of paragraph 196 of the NPPF, relating to when less than substantial harm is caused to a heritage asset. The NPPF says where less than substantial harm will occur, the harm should be weighed against the public benefits of the proposal.

City & Country argued that the planning inspector assessing the Bramshill appeals had erred in failing to carry out a “net" or "internal" heritage balance in order to determine whether any overall harm arose.

However, the court ruled that the decision-maker is not required to undertake a net or internal balance of heritage related benefits and harm in order to undertake the assessment specified in the NPPF. It said: “The decision-maker must adopt a sensible approach to assessing likely harm to a listed building and weighing that harm against benefits.”

Planning expert Jamie Lockerbie of Pinsent Masons said the Court of Appeal decision meant the planning status quo was unchanged.

“The application of policy and the balancing of competing interests or effects is for the decision-maker and the courts remain very reluctant to interfere in such decision-making. Statute or national policy can of course mandate how policy should be applied or the weight that should be attributed to a particular factor or effect but often it will not,” Lockerbie said.

“Even if it does, this does not alter the decision-maker’s duty to make an overall assessment of the application as against the development plan policies and all relevant material considerations. This leaves applicants facing a degree of risk and uncertainty in terms of how their proposals will be determined, and very often the outcome will turn on the decision-maker's subjective view about a particular matter or effect,” Lockerbie said.