Whitby v Secretary of State for Transport Secretary of State for Communities and Local Government & Ors

Where development causes substantial harm to designated heritage assets, paragraph 133 of the National Planning Policy Framework requires the decision-maker to determine whether that harm is necessary to achieve substantial public benefits which outweigh it. Necessity is not confined to technical feasibility. A technically feasible alternative may be rejected after a rigorous assessment of its engineering, cost, operational, environmental, heritage and wider public consequences.

The decision-maker must apply the statutory duties to give considerable importance and weight to preserving listed buildings and their settings, and to preserving or enhancing conservation areas. The court reviews the legality of that approach, but does not substitute its own planning judgment or re-weigh the evidence.

The claimant brought three related challenges to the proposed Ordsall Chord railway: statutory review of the order under section 22 of the Transport and Works Act 1992, statutory review of listed building consents under section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990, and judicial review of deemed planning permission under section 90(2A) of the Town and Country Planning Act 1990.

The challenge concerned the treatment of substantial harm to designated heritage assets and the rejection of an alternative route, Option 15, which would have caused less heritage harm but adversely affected the proposed regeneration of Middlewood Locks. The central issues were the meaning of necessity in paragraph 133 of the NPPF, the application of the statutory heritage duties, and the adequacy of the Inspector’s and Secretaries of State’s reasons.

1. All three claims dismissed. Permission for the judicial review claim was granted because it was arguable, but the claim and both statutory reviews failed.
2. The statutory reviews under sections 22 of the Transport and Works Act 1992 and 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990 had a scope similar to a challenge under section 288 of the Town and Country Planning Act 1990. The applicable grounds included misdirection in law, irrationality, failure to consider relevant matters and procedural impropriety. Planning judgment and the weighing of competing considerations remained matters for the decision-maker.
3. Paragraphs 132 and 133 of the NPPF had to be applied throughout the decision-making process. The assets were designated heritage assets, several of the highest significance, and the proposed works involved substantial harm. Great weight was therefore required for conservation, with clear and convincing justification for harm.
4. “Necessary” in paragraph 133 meant needed or required. The decision-maker had to consider alternative routes, but technical feasibility was only the first question. If an alternative was technically feasible, its other disadvantages, including harm to different heritage assets, effects on homes and businesses, cost, disruption and regeneration consequences, could be relevant to whether the proposed scheme was necessary.
5. The Inspector lawfully assessed Option 15. He found that it could deliver the railway benefits and cause less heritage harm, but that its engineering risks, additional cost and disruption, together with serious effects on Middlewood Locks and Central Salford’s regeneration, meant that it was not a reasonable alternative on an appropriate alternative site. His report demonstrated that he had applied the statutory duties and NPPF policy rather than merely reciting them.
6. The Secretary of State for Transport lawfully adopted that reasoning. The Secretary of State for Communities and Local Government agreed with the Inspector’s report, and no separate error arose. The reasons were intelligible and adequate under South Bucks District Council v Porter (No 2).