QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| PAGHAM PARISH COUNCIL
|- and -
|ARUN DISTRICT COUNCIL
(and seven others)
Jeremy Cook (instructed by Arun District Council) for the Defendants
John Litton QC (instructed by James Smith (Planning Law Services) Ltd) for the Interested Parties
Hearing date: 25 June 2019
Crown Copyright ©
Mrs Justice Andrews:
"Therefore, it is considered that the proposed development will preserve the setting of listed buildings surrounding the site and as such would accord with policies HER SP1, HER DM1 and HER DM4 of the Arun local plan."
"It should also be considered that the proposed development makes a significant contribution to the Local Planning Authorities housing land supply and is an allocated site within the Arun Local Plan. Therefore, it is considered that the public benefits of the development would outweigh any harm to the setting or significance of heritage assets in accordance with paragraphs 196 and 197 of the NPPF".
i) The Committee failed to have regard to the duty under s.66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Listed Buildings Act");
ii) The planning officer materially misled the Committee by inadequately summarising the views of Historic England.
Both these grounds are concerned with the planning officer's assessment of the impact that the development would have on the setting of the Church.
The statutory duty
"In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority…shall 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."
"Preserving" in this context means "doing no harm to".
In determining applications, local planning authorities should require an applicant to describe the significance of any heritage assets affected, including any contribution made by their setting. The level of detail should be proportionate to the assets' importance and no more than is sufficient to understand the potential impact of the proposal on their significance…
Local planning authorities should identify and assess the particular significance of any heritage asset that may be affected by a proposal (including by development which may affect the setting of a heritage asset), taking account of the available evidence and any necessary expertise. They should take this into account when considering the impact of a proposal on a heritage asset, to avoid or minimise any conflict between the heritage asset's conservation and any aspect of the proposal.
In determining planning applications local planning authorities should take account of:
a) the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation;
b) the positive contribution that conservation of heritage assets can make to sustainable communities including their economic viability;
c) the desirability of new development making a positive contribution to local character and distinctiveness.
When considering the impact of a proposed development on the significance of a designated heritage asset, great 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 harm amounts to substantial harm, total loss or less than substantial harm to its significance.
Any harm to…the significance of a designated heritage asset … from development within its setting… should require clear and convincing justification….
Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal….
The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining the application. In weighing applications that directly or indirectly affect non-designated heritage assets, a balanced judgment will be required having regard to the scale of any harm or loss and the significance of the heritage asset."
"the only slight impact of note could be in the wider distant setting of the parish church of St Thomas à Becket from the north-east. However, considering the survival of most of the remaining vistas that include the church tower in the distance, and the relatively low level of the significance of these views because of the erosion through modern development, this is considered to amount to very limited 'harm' under the guidance of the National Planning Policy Framework.
As this impact could be considered 'less than substantial' in the context of the NPPF, it should be weighed against the public benefits of the proposal. The benefits of the scheme as a whole are considered to easily outweigh the very limited amount of 'harm' and include the potential to enhance the setting of the settlement by introducing improved housing stock, landscaping, community facilities, and other amenities." [Emphasis added].
The Planning Officer's Report
"The application was accompanied by a heritage impact assessment and the impact of the proposals upon the setting of nearby heritage assets has been considered as part of this application. It has been concluded later in the report that the proposals will not result in any significant impact upon nearby heritage assets. Thus, the proposed development is deemed to accord with policies H SP2 (c), (m) and H SP2a (b) of the Arun Local Plan."
"Further to the south of the application site is St Thomas à Becket, a Grade 1 listed medieval church which was restored in 1837. The listed building sits within a verdant churchyard on Church Lane and enjoys a sense of enclosure from the boundary walls and mature trees. The church is situated on the edge of the built-up area boundary and is accessed via a semi-rural Lane. Further to the south and separated from the church by Church Farm Holiday Village is Becket's Barn, the remains of a former archbishop's palace designated as a scheduled monument and listed building. The church and former archbishop's palace have a clear historic relationship and reflect the medieval importance of the settlement of Pagham.
Immediately adjacent to the church is Old Cottage, an 18th century thatched cottage which together with the church forms a picturesque grouping. Despite the more modern infill bungalows along Church Lane it has been identified that the church and other cottages along the lane keep the old character remarkably well. This small group of listed buildings along Church Lane and Pagham Road forms the 'historic core of Pagham'. The rural character of the lane and open fields to the north assist in helping to understand and appreciate the origins of St Thomas à Becket church and the historic core of Pagham and contributes positively to their setting.
[The final sentence of this paragraph is an unattributed, almost verbatim quotation from the letter from Historic England, see paragraph 22 above].
The impact of the proposed residential development has been considered by Historic England in their consultation response of 8 February 2017, in which it was stated that;
"Historic England agrees with the heritage statement that direct views of the development from the church and churchyard are largely contained by the modern bungalows opposite."
Views of the church are restricted from Pagham Road due to the height of boundary screening along the eastern boundary of the application site, with the church spire becoming visible at the southernmost end of Pagham Road, where it meets Church Lane. The development will have a limited impact within the street scene of Church Lane by virtue of the proposed residential development being situated approximately 255m to the north of Church Lane. Which in conjunction with the hedgerows and built form to the north of Church Lane will limit the development's visibility from the Grade 1 listed building.
It is acknowledged that the proposed development will impact upon views of the Grade 1 listed building from footpath 101 to the north but it is considered that whilst the development will have an impact on the setting of the Grade 1 listed church that this impact is not substantial or significant."
Consideration of Planning Officers' reports
"the question whether a proposed development affects, or would affect the setting of a listed building is very much a matter of planning judgment for the local planning authority".
In R(Williams) v Powys County Council  EWCA Civ 427,  1 WLR 439, in which that dictum was quoted with approval at , Lindblom LJ pointed out at  that the circumstances in which the s.66(1) duty has to be performed where the setting of a listed building is concerned will vary considerably, and with a number of factors, including but not limited to the nature, scale and siting of the proposed development, its proximity and likely visual relationship to the listed building, the architectural and historical characteristics of the listed building itself, local topography, and the presence of other features – both natural and man-made – in the surrounding landscape.
Ground 1- discharge of the s.66(1) duty
Ground 2 – the views of Historic England
Section 31(2A) of the Senior Courts Act 1981