Kay, R (on the application of) v Secretary of State for Housing Communities and Local Government & Anor

When applying paragraph 196 of the National Planning Policy Framework, the decision-maker must first establish the nature and extent of harm to the significance of the heritage asset, leaving beneficial effects out of account. The decision-maker must then weigh that harm against the public benefits of the proposal, including heritage benefits. Benefits arising from one element of a proposal may be material when assessing harm caused by another, particularly where the elements are physically or functionally inter-related. An Inspector may grant permission for severable parts of an application, but must explain the structure of the decision and must not omit material considerations. Prior consultation on a split decision is not generally required where the material before the Inspector gives no reason to anticipate prejudice or difficulty.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990 and the equivalent listed-building procedure, an Inspector’s decision concerning planning permission and listed building consent for works at a Grade II listed hall. The Inspector dismissed the appeals in relation to a new extension and repainting of the hall, but allowed them for replacement of an arched doorway and reconfiguration of railings.

The claimant argued that the Inspector had failed to take account of public benefits arising from the permitted works when applying paragraph 196 of the National Planning Policy Framework, and had acted unfairly by issuing a split decision without consultation. The central issues were the correct application of paragraph 196 and the procedural requirements governing partial permission.

1. Ground 1 allowed. Paragraph 196 of the National Planning Policy Framework requires a two-stage approach. The decision-maker must first identify the nature and extent of harm to the significance of the designated heritage asset. Beneficial effects on that significance are excluded at that stage. The identified harm must then be weighed against the public benefits of the proposal.
2. Heritage improvements may constitute public benefits. The Inspector had found that replacing the arched doorway with a matching window would benefit the architectural and historic interest of the listed building. His conclusion that there were no public benefits to weigh against the less-than-substantial harm was therefore legally erroneous. This was so whether he assessed the proposal as a whole or its elements separately.
3. An Inspector may grant partial planning permission or listed building consent for severable parts. There is no mandatory sequence for considering the whole application and its individual elements. The decision must, however, make the decision-making structure clear, and an Inspector must take account of benefits from one element where they are materially relevant to another, including because the elements are physically or otherwise inter-related. The approach is consistent with R (on the application of Samuel Smith Old Brewery (Tadcaster) and others) v North Yorkshire County Council [2020] UKSC 3.
4. Ground 2 dismissed. Procedural fairness did not require consultation before issuing a split decision. Nothing before the Inspector suggested that partial permission would cause prejudice or practical difficulty. Where an application contains several works, the possibility of a split decision will commonly exist, and an applicant should raise any specific objection or difficulty.
5. The Inspector’s decision was quashed because it could not be said that the outcome would inevitably have been the same had the public benefits been considered.

This was a first-instance statutory challenge in the High Court. The judgment records that the Inspector’s decision dated 25 November 2019 dismissed the appeals concerning the new extension and repainting, but allowed them concerning the doorway and railings. The High Court quashed that decision on ground 1 and rejected ground 2.