City & Country Bramshill Ltd v Secretary of State for Housing, Communities And Local Government & Ors

The Court of Appeal dismissed the appellant's challenge to parts of Waksman J.'s order upholding an inspector's decisions on multiple planning appeals at Bramshill Park. Key legal principles confirmed were the interpretation and application of the National Planning Policy Framework (notably paragraph 79 on "isolated homes in the countryside" and the sustainability policies), the approach to the statutory duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 concerning heritage assets and their settings, and the lawful weight to be given to local plan policies for the historic environment (policies CON11, CON12, CON17 and CON18).

The court held that the inspector lawfully applied the interpretation of "isolated" adopted in Braintree District Council, correctly assessed locational sustainability (including the "fall-back" position), and carried out a lawful assessment under paragraphs 190 and 193–196 of the NPPF when weighing heritage harm against public benefits. The inspector was not required as a matter of law to undertake a pre‑liminary internal or "net" heritage-only balance before considering wider public benefits. Her decision on costs was also lawful.

Background and parties: The appeals concerned proposals for redevelopment and changes of use at Bramshill Park, a site with a Grade I listed Jacobean mansion and a Grade I registered park and garden. The appellant was City & Country Bramshill Ltd; the first respondent was the Secretary of State (decisions of an inspector were challenged); other respondents included Hart District Council, Historic England and the National Trust.

Procedural posture: The inspector held a public inquiry and issued two decision letters (31 January 2019 and 14 March 2019). She allowed some appeals and dismissed others, quashing certain enforcement notices. Waksman J. in the High Court ([2019] EWHC 3437 (Admin)) partly allowed and partly dismissed applications under sections 288 and 289 of the Town and Country Planning Act 1990 and section 63 of the Listed Buildings Act, quashing some of the inspector's decisions and upholding others. Permission to appeal to the Court of Appeal was given by Lewison L.J. on 28 February 2020.

Nature of the appeal and relief sought: The appellant appealed against the High Court order in respect of certain dismissed planning appeals and the refusal of costs, seeking to quash the inspector's decisions on the ground of errors of law in the interpretation and application of national policy and statutory duties.

Issues framed: The Court of Appeal identified four principal issues: (1) whether the inspector misinterpreted or misapplied the NPPF policy against "isolated homes in the countryside" (paragraph 79); (2) whether the inspector lawfully performed the section 66(1) duty and applied NPPF heritage policies, including whether an "internal" heritage-only balance was required; (3) whether she misapplied local plan heritage policies (CON11, CON12, CON17 and CON18) and the weight to be given them; and (4) whether her approach to sustainability (including the claimed "fall-back" use and greenhouse gas/travel implications) was unlawful. The correctness of the inspector’s costs decision was also challenged.

Court's reasoning and conclusions: The court concluded that the inspector adopted the interpretation of "isolated" endorsed in Braintree District Council and lawfully applied it to the facts, concluding that the site and each proposed dwelling were isolated from any settlement. Her assessment of sustainability, including consideration of the fall-back C2 use and the evidence on trip rates and greenhouse gas emissions, was a lawful exercise of planning judgment and not irrational. On heritage, the court held there is no legal requirement to perform a separate preliminary "net" heritage-only balance before engaging paragraph 196 of the NPPF; the inspector followed paragraphs 190 and 193–196 by identifying significance, assessing whether development caused substantial or less than substantial harm, and then weighing that harm against public benefits (including heritage benefits). She lawfully attributed weight to local plan policies (giving them significant weight) while applying the NPPF balancing exercise. Her costs decision was properly conducted and did not depend impermissibly on the merits of appeals that were subsequently quashed in part. The appeal was dismissed.

The appeal is dismissed. The Court of Appeal concluded that the inspector correctly interpreted and applied the NPPF policy in paragraph 79 on "isolated homes in the countryside" (following Braintree), lawfully assessed locational sustainability (including the fall-back position and transport/greenhouse gas evidence), correctly applied the section 66(1) duty and NPPF heritage policies without requiring a preliminary "internal" heritage-only balance, and properly weighed development plan policies and public benefits. The inspector's costs decision was also lawful.

Inspector decisions: decision letter dated 31 January 2019 (appeals allowed in part and dismissed in part) and a decision on costs dated 14 March 2019. High Court (Planning Court) judgment: Waksman J., reported at [2019] EWHC 3437 (Admin), who partly allowed and partly dismissed challenges to the inspector. Permission to appeal to the Court of Appeal granted by Lewison L.J. on 28 February 2020. Court of Appeal judgment: [2021] EWCA Civ 320 (appeal dismissed).