Which Balance Normal or Tilted?

If it harms a heritage asset a normal balance

 

FTB Chambers

The Secretary of State has submitted to judgment in West Oxfordshire District Council’s challenge to an appeal decision relating to a proposed Gladman development at Cote Road, Aston, Oxfordshire.

The Council’s grounds of challenge were that the Inspector had fallen into the trap of failing to consider the interaction between paras. 134 and 14 of the NPPF and therefore applied the wrong test when balancing the harm and benefits of the development, with a consequent failure to comply with the requirements of section 66(1) of the Listed Buildings Act 1990.

The Inspector concluded that

(1) the Council could not demonstrate a five year supply of housing land and so para. 49 and limb 1 of the last bullet point in para. 14 of the NPPF applied;

(2) “less than substantial harm” would be caused to designated heritage assets by implementation of the appeal proposals; and

(3) that harm had to be weighed against the identified benefits, applying the test in limb 1 of the last bullet point in para. 14 of the NPPF that planning permission should be granted unless the adverse impacts “significantly and demonstrably outweigh the benefits”, ie as in limb 1 of the last bullet point in para. 14 of the NPPF.

But the Inspector’s analysis revealed an error of law in that the balancing exercise he undertook involved applying the weighted/tilted balance in limb 1 of the last bullet point in para. 14 of the NPPF when he should have carried out that balancing exercise in the ordinary unweighted way.  He therefore failed to consider the interaction between paras. 134 and 14 of the NPPF, applied the wrong test when balancing the harm and benefits of the development and failed to comply with the duty in s. 66(1).

In fact, this was the same error of law as arose in Forest of Dean District Council v. Secretary of State [2016] EWHC 421 (Admin) and R (Hill) v. Stroud DC and Rooksmoor Mills Ltd [2016] EWHC 3667 (Admin) (and see also R (Leckhampton) v. Tewkesbury BC [2017] EWHC 198 (Admin)).

The Secretary of State submitted to judgment on the making of the claim.  Gladman awaited the grant of permission but also submitted to judgment in the light of Holgate J’s conclusion that the Council’s main argument was “plainly arguable”.

Meyric Lewis acted for West Oxfordshire Council instructed by Susan Gargett.  William Rose of Sharpe Pritchard acted as solicitor on the High Court claim.

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