09 April 2021
City & Country Bramshill Ltd v Secretary of State for Housing, Communities and Local Governments  EWCA Civ 320
This article was first published on LexisPSL on 12 March 2021
The case concerns the interpretation of the NPPF and the discouragement of building isolated homes in the countryside together with the approach to sustainability and the duty in section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 in the context of the proposed conversion of listed buildings and substantial development in the countryside. It is important to developers and planning practitioners alike as it provides an endorsement of the Court of Appeal’s decision in Braintree District Council v Secretary of State for Communities and Local Government  EWCA Civ 610, which interpretated similar words in the NPPF (2012), now found in paragraph 79 of the NPPF (2018) and reproduced in the NPPF 2019, on the meaning of “development of isolated homes in the countryside”. It also considered the approach to sustainability where there is a “fall-back” use of a site together with the duty under section 66 of the Listed Buildings Act 1990 and the policy in paragraphs 193 – 196 of the NPPF relating to the protection of historic assets. In doing so it rejected the argument that the Court of Appeal in R. (on the application of Palmer) v Herefordshire Council  EWCA Civ 1061 had set out a principle requiring the decision-taker to carry out a “net” or “internal” heritage balance, weighing heritage harms against heritage benefits before weighing any other public benefits against any overall harm.
The development involved a large number of discrete applications to convert listed buildings for residential use and to build a substantial number of new dwellings on a 106 ha site in the countryside between two villages. Following a long inquiry into appeals against the refusal of those applications the Inspector allowed some of the appeals but dismissed others. In the High Court, the developer challenged the Inspector’s decision to dismiss some of the appeals but was unsuccessful.
In the Court of Appeal, there were four principal issues. First, whether the Inspector erred in law in her interpretation and application of the policy against “isolated homes in the countryside”. Secondly, whether the Inspector erred in her approach to “sustainability”. Thirdly, whether in performing the duty in section 66 of the Listed Buildings Act 1990 and applying the corresponding policies in the NPPF, the Inspector had failed to comply with a “principle” identified in R. (on the application of Palmer) v Herefordshire Council  EWCA Civ 1061. Fourthly, whether the Inspector erred in her approach to applying development plan policies for the protection of the historic environment.
On the first issue the Court fully endorsed the decision in Braintree District Council v Secretary of State for Communities and Local Government  EWCA Civ 610 and that “isolated” in the phrase “isolated homes in the countryside” connotes a dwelling that is physically separate or remote from a settlement and is a concept of national planning policy that does not lend itself to judicial analysis. Thus, the decision-maker must consider whether the development would be physically isolated, in the sense of being isolated from a settlement, what is a “settlement” and whether the development would be “isolated” from a settlement which are matters of planning judgment for the decision-maker on the facts of the particular case.
On the second issue, the Court rejected the argument that the Inspector had failed to take account of an accepted “fall-back” use in considering whether the proposed development was sustainable. It was clear the Inspector had this in mind when assessing the locational sustainability of the proposed development.
On the third issue, the Court endorsed the approach to the section 66 duty set out in Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council  EWCA Civ 137 and Jones v Mordue  EWCA Civ 1243 but rejected an argument that the decision in R. (on the application of Palmer) v Herefordshire Council required the decision-taker to carry out a “net” or “internal” heritage balance (i.e. that only if “overall harm” emerges from the weighing of “heritage harms” against “heritage benefits” must the “other public benefits” of the development be weighed against that “overall harm” under paragraph 196 of the NPPF). The Court said that section 66(1) did not require a decision-maker to undertake a “net” or “internal” balance of heritage-related benefits and harm as a self-contained exercise preceding a wider assessment of the kind envisaged in paragraph 196 of the NPPF. Nor, it said, was there any such a requirement in NPPF policy. The “net balance” exercise was one which the Inspector could have chosen to undertake when performing the section 66(1) duty and complying with the corresponding policies of the NPPF, but it was not required as a matter of law.
On issue 4, the Court held that the specific development plan polices in that case were consistent with the section 66 duty and national policy. And, in applying those policies, the Inspector was entitled to give them such weight as she reasonably judged to be appropriate. The Inspector’s conclusion that they should be given significant weight was one she was entitled to reach as a matter of planning judgment notwithstanding that none of the parties had suggested that they should be given such weight.
The appeal was dismissed.
This Case Report was produced by John Litton QC.