Forest of Dean District Council v Secretary of State for Communities & Local Government & Anor

Where housing-supply policies are out of date, paragraph 14 of the National Planning Policy Framework contains two separate alternatives. Where designated heritage assets engage the relevant restrictive policy, the paragraph 14 presumption is disapplied and paragraph 134 requires an ordinary balancing exercise between less than substantial harm and public benefits. The weighted test in paragraph 14, limb 1, must not be imported into paragraph 134. Harm to a listed building or its setting must receive considerable importance and weight. A decision applying only the weighted limb 1 test is unlawful unless the court can be sure that the outcome would inevitably have been the same.

A planning inspector allowed an appeal by Gladman Developments Ltd and granted outline permission for up to 85 dwellings. The claimant local planning authority challenged the decision under section 288 of the Town and Country Planning Act 1990.

The inspector found less than substantial harm to a designated heritage asset, but assessed the proposal only under paragraph 14 limb 1, asking whether adverse impacts significantly and demonstrably outweighed the benefits. The Secretary of State accepted that the inspector had failed to consider paragraph 14 limb 2 and paragraph 134. The central issues were whether paragraph 134 was a policy indicating that development should be restricted, whether its ordinary balancing test should be replaced or qualified by the limb 1 test, and whether the error could be treated as immaterial.

1. Ground 3 allowed. The inspector’s decision was quashed. Grounds 1, 2 and 4 were not considered.
2. Paragraph 14 contains two distinct and alternative limbs. Limb 1 requires the adverse impacts to significantly and demonstrably outweigh the benefits when assessed against the Framework as a whole. Limb 2 applies where a specific Framework policy indicates that development should be restricted.
3. Paragraph 134 is such a restrictive policy. It addresses development causing less than substantial harm to the significance of a designated heritage asset and requires that harm to be weighed against the public benefits. The word “restricted” has a relatively wide meaning and does not require an express prohibition or a direction that permission must be refused.
4. The paragraph 134 exercise is an ordinary, unweighted planning balance. The weighted limb 1 test cannot be read across into paragraph 134. The two limbs have different scopes: limb 1 considers the Framework as a whole, whereas limb 2 gives effect to a specific restrictive policy.
5. Under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990, harm to the setting of a listed building must receive considerable importance and weight. That consideration had to be applied within the paragraph 134 balance. By applying only limb 1, the inspector risked diluting or losing the statutory presumption in favour of preservation.
6. The error was material. The court could not be satisfied that the inspector would inevitably have reached the same conclusion under the ordinary paragraph 134 balance, particularly given the difference between that test and the strongly benefit-weighted limb 1 exercise. The appeal decision was therefore quashed.

The judgment itself records no earlier court decision in the same litigation. It concerned a statutory challenge to a planning inspector’s appeal decision dated 25 August 2015.