Permission was granted on appeal for a housing scheme in the
absence of a five year housing land supply (HLS). The Inspector
applied NPPF49 (which engages the NPPF14 presumption in the absence
of a 5 year HLS). The presumption recommends approval where there
is no 5 year HLS, unless "the adverse impact of doing so
would significantly and demonstrably outweigh the benefits, ... or
specific policies in the NPPF indicate that development should be
restricted." That includes where the plan has only
recently been adopted (
Woodcock Holdings Limited v Secretary of State for Communities
and Local Government and Anor  EWHC 1173 (Admin)).
NPPF126 to 134 provide specific policies on designated heritage
assets. NPPF134 requires less than substantial harm "to be
weighed against the public benefits of the
The scheme was acknowledged to cause 'less than
substantial' harm to the character and appearance of a nearby
Grade II listed farmhouse. The Inspector treated that harm as
outweighed by the overall public benefits. The authority's
grounds of challenge under section 288 of the Town and Country
Planning Act 1990 included that he had wrongly applied the
presumption, by failing to treat NPPF134 as a policy indicating
that development 'should be restricted'.
Coulson J held that NPPF134 is a policy "restricting
development" (despite the fact that it does not contain a
restriction), interpreting that phrase broadly. With the
presumption disengaged, an "unweighted" cost-benefit
balancing exercise must be undertaken.
The finding of harm (regardless of whether it is
"substantial" for NPPF purposes) gives rise to a
statutory, albeit rebuttable, presumption against the grant of
consent (South Lakeland District Council v Secretary of State
for the Environment and Another  2 AC 141) being
outweighed by material considerations. Applying the first,
weighted, limb on its own meant that it was likely that the wider
statutory presumption of refusal where there is any harm to
designated heritage assets had been lost.
There is likely to be a broadening of the search for
'restrictive' policies in defending refusals. That said,
where the decision taker has concluded that there is inadequate HLS
and the overarching legal hurdle to approving less than substantial
harm has been cleared, it should ultimately make little difference
to the outcome.
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