City & Country Bramshill Ltd v Secretary of State for Housing, Communities

Under paragraph 79 of the National Planning Policy Framework, whether homes are “isolated” is a matter of fact and planning judgment. The relevant question is whether the proposed homes are physically separate or remote from an existing settlement. Neither previously developed land nor the number of proposed homes creates an automatic exception.

Where heritage assets are affected, a decision-maker may consider less harmful alternative uses or designs even if no detailed alternative scheme has been submitted. For less than substantial heritage harm, the Framework requires the harm to be weighed against public benefits, including optimum viable use. It does not require an anterior internal balance under paragraph 193.

The Inspector’s treatment of the reuse of existing buildings was unlawful because she failed to give proper reasons, failed to consider material benefits and failed to address the fallback use.

The claimant challenged numerous aspects of an Inspector’s decision on planning permission and enforcement appeals concerning the Bramshill estate, a large historic site containing a Grade I-listed mansion, a registered park and garden, and modern buildings formerly used by a national police college.

The Inspector dismissed most residential development and enforcement appeals, but allowed appeals concerning conversion of the mansion to a single dwelling or office use. The challenge concerned the interpretation of paragraph 79 of the National Planning Policy Framework, heritage assessment, optimum viable use, enabling development, sustainability, ecological mitigation, the tilted balance and the reuse of existing dwellings.

1. Ground 1 dismissed. Under paragraph 79 of the National Planning Policy Framework, “isolated” means physically separate or remote from a settlement. Whether a group of dwellings constitutes a settlement, and whether proposed homes are remote from it, are matters of fact and planning judgment. The approach in Braintree v Secretary of State for Communities and Local Government [2018] 2 P&CR 9 was correctly applied. There was no general previously-developed-land exception and no exception based on the number of proposed houses.
2. Ground 3 dismissed. In assessing optimum viable use and enabling development affecting heritage assets, the Inspector was entitled to consider whether a less harmful scheme might achieve the same benefits, even without a detailed alternative proposal. The applicant bears the burden of justifying that the proposed form is the least damaging means of achieving the objective. The Inspector’s approach was consistent with Gibson v Waverley and Fossway [2012] EWHC 1472 (Admin), Gibson v Waverley and Fossway [2015] EWHC 3784 (Admin) and Forge Field Society v Sevenoaks [2015] JPL 22.
3. The Inspector was also entitled to apply the Framework’s graduated heritage balance. Paragraph 196 requires identified less than substantial harm to be weighed against public benefits, including optimum viable use. Palmer [2016] EWCA Civ 1061 did not require an internal balance under paragraph 193, and Mordue v Secretary of State for Communities and Local Government [2016] 1 WLR 2682 supported working through the relevant Framework provisions.
4. Ground 4 succeeded. The Inspector’s reasoning on the proposed reuse of existing dwellings was opaque. She failed properly to address the limited benefits relied upon and the existing lawful fallback use. The matter therefore involved inadequate reasons and failure to take account of material considerations.
5. Grounds 5, 6 and 7 failed. The Inspector was entitled to conclude that the evidence did not establish lower greenhouse-gas emissions, that the SANG’s relevant features had been considered, and that the tilted balance remained disapplied in the circumstances. The approach to the unadopted consultation was supported by Gladman Developments v Secretary of State for Housing, Communities and Local Government [2019] EWHC 2001.
6. The challenge therefore failed except in relation to Ground 4. Consequential questions of discretion, costs and the precise relief were left for further submissions.

The judgment concerned statutory challenges under sections 288 and 289 of the Town and Country Planning Act 1990 to an Inspector’s decision letter dated 31 January 2019. The challenge failed except on Ground 4.