Whitby v Secretary for Transport & Ors

In assessing development causing substantial harm to designated heritage assets, the decision-maker must apply the statutory duties protecting listed buildings and conservation areas together with paragraphs 132 and 133 of the National Planning Policy Framework. The necessity of the harm requires rigorous consideration of whether another reasonable means of delivering similar public benefits exists, including an appropriate alternative site. That assessment may include an alternative’s effects on regeneration, cost, delay, deliverability and other public interests. The statutory requirement to give considerable importance and weight to preservation remains a strong presumption, but it does not prohibit harmful development where substantial public benefits provide clear and convincing justification. Inspectors’ reports and decision letters must be read fairly and as a whole.

The appellant challenged decisions authorising the Ordsall Chord railway project. The decisions included a Transport and Works Act order, deemed planning permission and listed building consents. The project would cause substantial harm to listed buildings, their settings and the Castlefield Conservation Area.

The appellant argued that the inspector and Secretaries of State had misunderstood the statutory duties, national policy and guidance, and had unlawfully assessed an alternative alignment known as Option 15. Lang J dismissed the statutory challenges and judicial review claim: [2015] EWHC 2804 (Admin). The central issue was whether the decisions were unlawful because the statutory duties or the policy and guidance governing substantial heritage harm had been misunderstood or misapplied.

1. Appeals dismissed. The inspector and Secretaries of State had lawfully addressed the duties in sections 16(2), 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. They recognised the requirement to give considerable importance and weight to preserving listed buildings and their settings, and to preserving or enhancing conservation areas.
2. The inspector and Secretaries of State had correctly understood and applied paragraphs 132 and 133 of the National Planning Policy Framework. Substantial harm to heritage assets of the highest significance should be wholly exceptional and its necessity must be rigorously tested. Paragraph 133 requires consideration of both whether the harm is necessary to achieve substantial public benefits and whether those benefits outweigh the harm.
3. The guidance in paragraph 91 of the PPS5 Practice Guide properly informed the necessity assessment. The question was whether Option 15 offered another reasonable means of delivering similar public benefits on an appropriate alternative site. The inspector was entitled to consider the alternative’s effect on Middlewood Locks, central Salford’s regeneration, cost, engineering, passenger disruption, delay and deliverability.
4. The burden of justifying rejection of Option 15 remained with Network Rail. The inspector did not require the appellant to prove that Option 15 was superior. His conclusion that the alternative was not reasonable rested principally on its likely adverse effect on comprehensive redevelopment of Middlewood Locks and the resulting consequences for regeneration.
5. The conclusion that the substantial public benefits outweighed the heritage harm was a lawful exercise of planning judgment. The statutory presumption in favour of preservation did not amount to a prohibition on harmful development. The reasons were clear and adequate when the report and decision letters were read fairly and as a whole.

• Court of Appeal (Civil Division) — appeals dismissed on 6 May 2016.
• Administrative Court, Planning Court — Lang J dismissed the statutory challenges and judicial review claim: [2015] EWHC 2804 (Admin) .