In Whitby v Secretary for Transport & Ors  EWCA Civ 444 the Court of Appeal has given its reasons for dismissing challenges to the Transport and Works Act 1992 (TWA) Order and related planning permission and listed building consents for the Ordsall Chord rail scheme. The judgment confirms that the decision-makers are entitled to undertake a wide ranging balancing consideration when considering harm to designated heritage assets.
All in Order
The Secretary of State for Transport made the Network Rail (Ordsall Chord) Order under the TWA and directed that planning permission for the work to be deemed to be granted under section 90(2A) TCPA 1990. The Secretary of State for Communities & Local Government granted ten application for listed building consent (for demolition, partial demolition and alteration of affected listed buildings). The Inspector and the two Secretaries of State were presented with an alternative alignment to that proposed in the Order. The scheme was recognised as delivering significant public benefits (at a cost of substantial harm to listed buildings, their settings and the character and appearance of nearby conservation areas). An alternative option would have avoided this harm, but damaged the regeneration potential of a key development area.
Heritage duties in play
In deciding whether to grant listed building consent and planning permission the Secretaries of State were required to have “special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses” under sections 16(2) and 66(1) of the Planning (Listed Buildings & Conservation Areas) Act 1990. Effects on conservation areas fell to be considered in the same way (under section 72(1)). Preservation means doing no harm, with “considerable importance and weight” to be given to avoiding such harm (Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council  EWCA Civ 137). The NPPF recommends that permission should be refused for any schemes that would lead to “substantial harm” to a designated heritage asset, unless there are substantial public benefits of doing so that outweigh the harm (or an absence of alternative uses and viability constraints combined with a beneficial end use of the site as part of the consent).
Working through the NPPF policies on heritage assets will generally allow an inference that the statutory duties have been properly taken into account (Jones v Mordue  1P&CR12). The practice guidance in force at the time of the Inquiry suggested that there should be no other reasonable means of delivering the same public benefits (including through the useful alternative sites) where substantial harm is justified.
The Court held that the Inspector had clearly given considerable importance and weight to the desirability of preservation. Both the Inspector and the Secretary of State were also held to have taken the relevant NPPF policies into account. Considering the case for the proposals and the harm they involved against the reasonable means of delivering similar public benefits (including through appropriate alternative sites with wider adverse effects) was entirely appropriate. The ultimate test is whether having rigorously tested the harm it is considered necessary for the purposes of the wholly exceptional policy requirement. The reasons why the alternative option was not appropriate had to be considered but this did not mean that the burden of proof had been switched to the objector.
The case confirms that whether alternatives that would cause lesser harm to heritage assets would themselves have significant difficulties or cause their own harm (whether to heritage assets or other planning interests) is a perfectly acceptable consideration in addressing the question of appropriate alternatives and the necessity for the harm to the assets. The weight given to the other harm relative to the heritage asset harm is a matter for the decision maker as long as he or she gives considerable weight to the statutory purpose.