Category: Conservation area

Old Wine In A New Bottle: Heritage Considerations In The New NPPF

Some of the language on heritage in chapter 20 of the new NPPF is different to the previous version: does that matter in practice?  That’s what I’m covering in this post (although, darn it, the title has given away what I think the answer is) as well as briefly referring to an interesting case handed down last week.

My thanks to my Town Legal colleague Tom Brooks (previously a heritage consultant before requalifying as a solicitor) who is my first port of call on these issues. Most of the analysis which follows is his, with any errors in transcription being mine. We are focusing just on the development management policies within chapter 20 and specifically the tests for assessing the impact of a proposed development on the significance of a designated heritage asset.

The definition of designated heritage assets has not been expanded, comprising world heritage sites, scheduled monuments, listed buildings, protected wreck sites, registered parks and gardens, registered battlefields and conservation areas.

Policy HE6: Proposals affecting designated heritage assets reads as follows:

1. When considering the potential effect of a development proposal on the significance of a designated heritage asset, substantial weight should be given to the asset’s conservation (and the more important the asset, the greater the weight should be). This is irrespective of whether any potential effect amounts to a positive effect, harm, substantial harm, or total loss of its significance.

2. Development proposals which would have a positive effect on a designated heritage asset should be supported.

3. Any harm to a designated heritage asset will be a matter of considerable importance and weight, which should be dealt with in accordance with paragraphs 4 to 6 of this policy.

4. Where a development proposal would harm the significance of a designated heritage asset the effect on the asset and its significance should be weighed against any public benefits resulting from the proposal. Important public benefits can include securing the long-term reuse of a vacant or underused listed building, and enabling energy efficiency and low carbon heating measures to be employed.

5. Where a development proposal would cause substantial harm to, or the total loss of, the significance of a designated heritage asset, consent should be refused unless it can be demonstrated that the harm is necessary to achieve substantial public benefits that outweigh the harm or loss, or if all of the following apply:

a. The nature of the heritage asset would otherwise prevent all reasonable uses of the site;

b. No suitable use for the heritage asset itself can be found in the medium term through appropriate marketing that will enable its conservation;

c. Conservation by grant-funding or some form of not for profit, charitable or public ownership is not possible; and

d. The harm or loss is outweighed by the benefit of bringing the asset back into use.

6. Within this context, development which would cause substantial harm to, or the total loss of, the significance of grade II listed buildings, or grade II registered parks or gardens, should be exceptional; while development which would cause substantial harm to, or the total loss of, assets of the highest significance, notably scheduled monuments, protected wreck sites, registered battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites, should be wholly exceptional.

The key changes in these policy tests compared to the equivalent tests under paragraphs 212–215 of NPPF 2024 are as follows:

  • The reference in HE6.1 to “substantial weight” is a change from “great weight” in paragraph 212 of NPPF 2024. The Government’s response to the consultation on the draft NPPF 2026 makes clear that this terminology change was not intended to be substantive and “maintains the existing level of protection and that, when following the approach set out in the NPPF decision makers will discharge the statutory regard duties in relation to the protection of designated heritage assets.” To underline this, HE6.3 (which was not in the draft NPPF 2026) states additionally that any harm will be “a matter of considerable importance and weight”. Again, this simply aligns with the statutory duty that already existed alongside NPPF 2024, so is not a substantive change.
  • The potential for development to result in positive effects is expressly recognised in HE6.1 and .2 whereas this was not mentioned at all in NPPF 2024. This follows HE5.2 which helpfully sets out the possible outcomes of effects on heritage assets as follows:
  • a. Have a positive effect, which is where the significance of a heritage asset would be enhanced, or better revealed; or
  • b. Have no effect on the significance of a heritage asset; or
  • c. Result in harm to the significance of a heritage asset, either from work affecting the asset itself or from development within its setting. The degree of harm should be identified: substantial harm would occur where the development proposal would seriously affect a key element of the asset’s significance; or
  • d. Cause the total loss of the significance of a heritage asset.
  • The definition of “substantial harm” above aligns with PPG Paragraph: 018 Reference ID: 18a-018-20190723, from which that “seriously affect a key element of the asset’s significance” wording is drawn.
  • The express support for proposals with a positive effect in HE6.2 is a change in emphasis from NPPF 2024.
  • The category of “less than substantial harm” has been removed in NPPF 2026 although there remains a need (as per HE5.2(c) reproduced above) to determine whether harm to the significance of a designated heritage asset is substantial or not. Therefore, in practice, the removal of less than substantial harm as an express category is inconsequential.
  • The test in HE6.4 for weighing harm against public benefits is essentially unchanged from paragraph 215 of NPPF 2024. This exercise remains a matter of planning judgment for the decision maker to be carried out alongside their statutory duties. In terms of specific public benefits to be taken into account in the balancing exercise under HE6.4, the concept of “optimum viable use” as a potential public benefit in NPPF 2024 has been removed. Instead HE6.4 refers to “important” public benefits, including more generally “long-term reuse of a vacant or underused listed building”, which is likely to be easier to satisfy than demonstrating optimum viable use. There is also now express reference to “enabling energy efficiency and low carbon heating measures”; again, this is likely to be helpful in building the public benefits case to outweigh harm where such improvements are provided. As these benefits are described as “important” they should be given increased weight in the balancing exercise. For guidance as to the scope of other potential public benefits, the broad definition in the PPG remains relevant. The test for substantial harm under HE6.5 is substantively unchanged from paragraph 214 of NPPF 2024. Similarly, HE6.6 reflects the second sentence of paragraph 213 of NPPF 2024.
  • As an aside, there is a question as to whether, where substantial harm arises, it should be assessed against HE6.4 as well as HE6.5 and .6. Technically it is also still “harm” under HE6(4) (this is a consequence of the removal of “less than substantial harm”) but it seems unlikely that this was the intention because HE6.5 provides a different test for substantial harm.

So, in summary, we do not see NPPF 2026 changes as substantively changing the tests for assessing the impact of a proposed development on the significance of a designated heritage asset. In particular, the core policy tests for considering harm to designated heritage assets are fundamentally unchanged.

There are nonetheless some changes that are potentially helpful to developers of designated heritage assets, in particular that proposals with a positive effect should be actively supported, and that where proposals cause some (not substantial) harm, reuse and energy efficiency improvements to listed buildings should be considered by decision makers as important public benefits – potentially increasing their weight in the balancing exercise.

Thank you Tom!

I mentioned a case handed down last week. King Media Limited v Secretary of State (Lieven J, 25 September 2026). The case concerned a legal challenge to an inspector’s decision to dismiss an appeal against a discontinuance notice under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007.  (This was in the context of the old NPPF).

Discontinuance notices may be served against lawfully displayed advertisements where “substantial injury to the amenity of the locality” has been caused. The principal controversial issue in this case was the scale of harm that a particular advertisement caused to the South Shoreditch conservation area.

The inspector had found that “the advertisement presents as a dominant and intrusive feature in the street scene, considerably at odds with the appearance of built development in the area. For these reasons, the display of the advertisement causes harm to the character and appearance of the [conservation area] and substantial injury to the amenity of the locality.” One of the grounds of challenge was that the inspector failed to reach conclusions of the specific level of harm caused (e.g. less than substantial ham/substantial harm/where on the spectrum of less than substantial harm).

After considering the parties’ submissions, Lieven J stated:

“There is no obligation on a decision maker to set out precisely where on a scale of harm to heritage assets a particular development lies”.

Given that my firm acted for the claimant, I won’t go beyond this brief pointer to the judgment (and you will see that the case raised other interesting issues too, in relation to the application of the Human Rights Act in particular) but I look forward to reading commentaries in due course.

Simon Ricketts, 27 September 2026

Personal views, et cetera

The “We’ve Extended The Conservation Area” Gambit

Once a building is included within a conservation area, the permitted development right to demolish it, by virtue of Schedule 2, Part 11, Class B of the General Permitted Development Order, no longer applies.

What a coincidence it would be if, after redevelopment of a building was proposed (in the face of local opposition), a local authority were to extend an existing conservation area so as to include the building, so as to prevent its demolition without the need for planning permission….

Which brings us to the interesting case this week of Future High Street Living (Staines) Limited v Spelthorne Borough Council (Lane J, 28 March 2023).

The claimant owns the former Debenhams store in Staines. Its application for planning permission for demolition and redevelopment was submitted on 10 November 2021 and elicited 268 objection letters, including objections on the basis that this would represent the “loss of an iconic building” and that there would be “heritage impacts on nearby conservation areas and listed building”. The application was subsequently refused on 6 June 2022, the reasons for refusal including “harm to the significance of designated heritage assets (including the [adjoining Staines Conservation Area]) and non-designated heritage assets” and “overdevelopment causing harm to the character and appearance of the area”.

Prior to the refusal, presumably to narrow the points in contention in relation to the planning application, on 25 February 2022 the claimant made an application to determine whether prior approval was required for the demolition of the building under the GPDO. On 24 March 2022 the council confirmed that prior approval was required (not in itself a big issue in that the prior approval process cannot engage with the principle of demolition as opposed to how it is carried out). But it then extended the Staines Conservation Area to include the building, before refusing prior approval on the basis that the building was now in a conservation area and therefore the GPDO permitted development right to demolish was no longer available.

Before deciding to extend the conservation area, the council had carried out a consultation process and it was reported internally within the council that there were no material objections to the proposal. Somehow, the council had overlooked detailed representations submitted by a heritage specialist (Pegasus’ excellent Gail Stoten) on behalf of the claimant.

When the claimant issued a pre-action protocol letter threatening to judicially review the decision to extend the conservation area, the council then prepared a supplementary report that purported to consider the overlooked set of representations, before concluding that the points made did not change the council’s decision.

The claimant relied on four grounds in its subsequent claim for judicial review:

Ground 1 – The council acted unlawfully in making the decision to extend the conservation area in that its true purpose was to prevent its demolition and redevelopment – an improper purpose and therefore contrary to law.

Ground 2 – The council failed to take into account the claimant’s representations.

Ground 3 – The officers’ reports were seriously misleading in not referring to the fact that Historic England had declined to list the building “on the basis that the Building did not possess the quality of design, decoration and craftsmanship to merit being of special architectural interest”.

Ground 4 – The purported reconsideration of the decision by way of the supplementary report was unlawful.

The claimant was represented at the hearing by Paul Tucker KC leading Jonathan Easton (now KC but not earlier in the week when judgment was handed down!).

On the first ground the judge stated:

“Since the purpose of designating or extending conservation areas is to preserve or enhance areas of “special architectural or historic interest”, the designation or extension of a conservation area which is motivated principally by a desire to protect a specific building and prevent its demolition will be unlawful.”

The judge considered that on the basis of the case law the question was whether the desire to protect the building from demolition was one impetus for the designation (which would be lawful) or the only impetus (unlawful). This is obviously a high bar for a claimant to clear. On the facts he concluded that it was the former and so ground 1 failed.

However the claim succeeded on the other grounds.

In relation to grounds 2 and 4:

“(i) the defendant failed to take account of the claimant’s representations in response to the consultation at the proper time; (ii) it did not do so in a legally adequate manner in the SR (if that was what the defendant purported to do in the SR); and (iii) having regard to (ii), it cannot be said that it is inevitable or even highly likely the outcome would not have been substantially different if the conduct complained of had not occurred.”

In relation to ground 3:

“…there was a clear need to provide Members with a fair and balanced analysis of the architectural worth of the Building. This included informing them of the outcome of the approach made to Historic England regarding possible statutory listing.” It was also obviously material that “in both 2004 and 2016, the Building had not been regarded as sufficiently important to merit even local listing.” Nor could members have been expected to know about these matters. “It has not been shown that their local knowledge extends to being aware of negative decisions on potential listing on the part of Historic England. Likewise, Members may not have been aware (or may have forgotten about), the previous local list review exercises.”

Given a local planning authority’s breadth of discretion in deciding whether to designate or extend conservation areas, this was quite a win for the claimant, basically down to the council’s administrative own goals (full credit to PT KC and JE KC of course…).

Let’s not forget the wider issues swirling around on the question of demolition of buildings, in the context of embodied carbon (we still await the Secretary of State’s M&S Oxford Street decision). See for example this campaigning piece Could a Grade III listing for buildings halt the UK’s tide of demolition? (22 November 2022) by Will Arnold, head of climate action at The Institution of Structural Engineers or this contrary view Why grade III listings should be avoided at all costs (Edward Clarke in The Times, 12 March 2023 (behind a paywall). But it surely brings the heritage system into disrepute when conservation designations are relied upon as a convenient means of controlling demolition for other purposes, whether those may be a reaction to the spectre of redevelopment or arising from laudable concerns about climate change.

Discuss…

Simon Ricketts, 1 April 2023

Personal views, et cetera

Debenhams, Staines

Credit: Ruth Sharville, Wikimedia Commons (Creative Commons Attribution-ShareAlike 2.0 Generic licence)

Angelic: Public Benefits Of Unlawful Demolition In Conservation Area

There was an interesting piece this week by Sarah Townsend on the Planning Resource website: Why planning enforcement notices have dropped to their lowest-ever level (subscription only, 29 August 2019).

There was also an interesting ruling from the High Court, London Borough of Tower Hamlets v Secretary of State and Angelic Interiors Limited (in administration) (Kerr J, 27 August 2019), which will have made every enforcement officer, and indeed conservation officer, blink. Although perhaps the facts are unusual.

In June 2016, enforcement officers at the London Borough of Tower Hamlets were tipped off that the buildings comprising 2, 4 and 6 East Ferry Road London E14, within the Coldharbour conservation area, had been demolished without planning permission. It is of course a crime, as well as a breach of planning control, to cause or permit demolition of a building in a conservation area without planning permission.

The council wasn’t certain who had done it, although an individual has since admitted responsibility, and it did not prosecute.

As was reported at the time (BBC website, 27 September 2017), the council served various enforcement notices, requiring that within 18 months the owner was to “rebuild the building so as to recreate in facsimile the building as it stood immediately prior to its demolition on 26 June 2016 with reference to the photographs and plans (LBTH file reference PA/84/00512 & PA/81/00497 originals of which are available at the Tower Hamlets Council’s Town Hall)”

In fact there had been a long-running dispute as to who owned the property, which was only resolved in October 2018, in favour of a company called, ironically, Angelic Interiors Limited, which had been in administration since July 2016. Angelic’s administrators appealed against the enforcement notices.

Enforcement appeal decision letter

The inspector, Simon Hand, allowed the appeals in a decision letter dated 17 December 2018.

In order to place Kerr J’s judgment this month into context, it is illuminating to read the decision letter.

Here are some key passages:

“Nos 2-6 were the last surviving remnant of the once large area of Victorian workers housing in Cubitt Town which occupied the whole of the south-eastern side of the Isle of Dogs.”

“There is […] no dispute the removal of the buildings causes less than substantial harm to the Coldharbour conservation area. The conservation area is a designated heritage asset and paragraph 193 of the NPPF makes it clear that great weight should be given to any less than substantial harm to the significance of a heritage asset. Paragraph 194 goes on to say that any loss of significance to a heritage asset should require clear and convincing justification (my emphases). Paragraph 196 explains that where there is less than substantial harm to a heritage asset is should be weighed against the likely public benefits arising from that harm.”

“If they were to be rebuilt then they would undoubtedly be very nice, but the issue is what role do they play in the significance of the conservation area and the answer would seem to me to be very little.”

“Had the demolished buildings been of historic interest in their own right they would have been worth preserving simply for that reason, but they would still have told us little or nothing about Cubitt Town, its development, or its morphology. The development of Cubitt Town does not seem to have been unusual in any way, nor any of its buildings particularly special, it is not until this Inquiry that anyone at the Council has made any mention of it at all. To my mind the dwellings were not the last fragment of a historically significant but now lost development. They were simply three remnant buildings in a sea of modern development. To suggest that this makes it all the more important to preserve them is to adopt a collector’s mentality, particularly as they seemed to have no great historic significance themselves due to the substantial modern changes they had undergone.”

“Both parties accepted the loss of the buildings had caused less than substantial harm to the significance of the conservation area, and I would not like to suggest their loss causes no harm at all, but I consider that the harm is very much at the lowest end of that scale. It was argued that if the site is left vacant or redeveloped there would be no reason to retain it in the conservation area and this would seem to be true, but it does call into question the motivation for extending the conservation area in the first place. Had it been deliberately to protect this remnant of Cubitt Town, then I would have expected somewhere for this to have been explained. I accept the conservation area appraisal is lacking in detail, but if Cubitt Town was of such importance as Mr Froneman argued, then I find it hard to believe the reason for the extension to this allegedly key part of the Isle of Dogs is deliberately not mentioned as the appraisal explains only that the extension was in order to protect Glen Terrace. It seems to me more likely the Council just saw these Victorian looking buildings and took the opportunity to include them, as there was nothing else of any historic interest in the area. Whatever the truth of the matter whether or not the vacant site remains worthy of conservation area status is of little importance in this case.”

The inspector found this to be an area of high housing need and “there would appear to be no constraints that would prevent a housing scheme of significantly greater density than 3 units from being successful on the site.”

“it would seem highly likely that a suitable development proposal could be found and there are no obvious reasons why the landowner would not want to realise the development potential of the site.”

“Paragraph 196 of the NPPF requires that the harm should be weighed against any public benefits. In this case those benefits are the redevelopment of the site with a much larger number of dwellings than would be the case if the demolished houses were rebuilt, including much needed affordable housing, all of which would be in accord with the prevailing policy ethos for the area. I accept these benefits are speculative, but in my view there is a good chance they would be realised. It seems likely to me that even had the buildings still been in place, given their poor condition and lack of any historic significance, they would have been demolished to make way for a comprehensive redevelopment scheme. Consequently, I consider these benefits outweigh the harm identified. The demolition of the three dwellings is thus in accord with the NPPF and the development plan for the area and so I shall grant planning permission accordingly.”

So he found that the potential for redevelopment for housing purposes of the unlawfully cleared site amounted to a sufficient public benefit to outweigh the “great weight” to be attached to the (very much) less than substantial harm that had been caused to the character or appearance of the conservation area.

High Court

The council challenged the decision letter.

Kerr J identified the main issue before him as “whether the “public benefits of the proposal” (in the words of NPPF paragraph 196) should extend to likely benefits of new development of a site, facilitated by demolition of buildings on the site, where there is no current application for planning permission to develop the site; or whether those words are restricted to the public benefits of demolishing the buildings, without considering any likely future development.”

The judge did not find this to be an easy case:

“It is counter-intuitive to propose that unlawful (and criminal) demolition of buildings forming part of a conservation area, harming the significance of that conservation area, can do more good than harm. No sensible planning application to demolish would be made on that basis and a planning consultant suggesting such an application would soon be short of clients.

Still, for the inspector’s decision to be lawful, and for the challenges to fail, it has to be a defensible conclusion that demolition without replacement, leaving the site razed to the ground and vacant, without any replacement development, and doing harm to the significance of the conservation area, is more good than bad. Baldly stated in that way, the proposition is remarkable.

My first thought on hearing argument was that the proposition cannot be correct. If only demolition is on the table, and demolition is harmful, how then can it do more good than harm? Can it be good and bad at the same time, and more good than bad?”

The judge concluded that it was simply a matter for factual evaluation for the inspector.

“I accept the respondents’ interpretation of the heritage provisions in the NPPF with a degree of hesitation. I am conscious that it is a liberal construction and not a strict pro-heritage construction such as the council is advocating. Nevertheless, on balance I think the respondents’ is the correct one, bearing in mind that the NPPF provisions are statements of policy not law and the language of the provisions is not restricted in the way the council contends.”

He considered whether the inspector’s decision could be said to have been irrational:

“I reject the council’s free standing contention that, quite apart from the interpretation of the NPPF provisions, it was irrational to decide that the market would produce suitable and beneficial housing development soon. It is true that the inspector could not say what type of development that would be, nor that it would certainly occur; but those were points he was entitled to weigh when considering the public benefit side of the balance.

I do not see any want of rationality in reasoning that the site would soon attract developers like flies to a honeypot and that this would probably have led to demolition of the three houses soon anyway. The circumstantial evidence supporting that finding was not lacking: the prime location, the pressing need to build housing in the borough, the appetite shown by other housing developments nearby, the indicative Turner scheme and the intention to sell and strong likelihood of sale of the site for development.”

Lastly, he considered whether the inspector’s decision was adequately reasoned:

“As for the reasons challenge, did the inspector properly set out his thinking? Manifestly, he did. The reasoning need not be discursive. It is commendably succinct but clear and full. He explained exactly why he was confident that delivery of the public benefit he anticipated could be left to the market. He made all the points I have just mentioned, in support of his conclusion. The council cannot complain that it does not know why it lost the appeals.

I did consider carefully whether the reasoning touches adequately on the possibility of a development scheme that would leave the three houses intact, whereby the developer would build round them and keep them in place. If the inspector had simply assumed, without considering the issue properly, that the public benefits derived from anticipated development would be lost unless the demolition were permitted, that could have been a flaw in the reasoning.

However, I have concluded that the inspector did adequately, though briefly, consider this point and that it was a matter for his planning judgment. His consideration of likely development proposals such as the one illustrated by the Turner scheme (involving 22 new dwellings) included the council’s 2005 discussions which would have involved demolition of the three houses.”

He dismissed the challenge, albeit with a final bit of judicial hand-wringing:

“I do so without much enthusiasm, reminding myself that the enforcement system is remedial not punitive. I must put aside the affront to the rule of law and criminal activity seen in this case, as well as the loss of the three houses and their contribution to our historic environment, however limited some may consider it. My discomfort does not make the inspector’s decision unlawful and I must and do uphold it.”

Implications

Plainly, unlawful actions should in principle not go unpunished and it is disappointing that there have been no prosecutions.

Plainly also, Angelic’s administrators now have an unearned windfall by virtue of a cleared site for development with no obligation to reconstruct the buildings that others had unlawfully demolished on the site.

That is not to say that the enforcement notices should have stood and that replicas of these apparently unexceptional buildings should have been required, simply to discourage others from similar conduct, but what is there in this unfortunate chain of events to encourage appropriate behaviour on the part of future Angelics?

Simon Ricketts, 31 August 2019

Personal views, et cetera