The Court of Appeal has dismissed a developer’s challenge in a long running dispute over the development of Bramshill Park, Hampshire. Set in a grade I listed Jacobean mansion and grade I registered park and garden, the proposals included the conversion of the mansion into 16 apartments, the construction of 235 houses in place of some existing buildings and a further 25 houses elsewhere on the site as well as the use of 51 existing residential units as separate dwellings.

The developer had previously made 33 appeals to the planning inspectorate against various refusals and enforcement notices issued by the Council, 13 of which were refused by the inspector. The developer successfully challenged the majority of these refusals in the High Court. The key outstanding grounds of appeal that were before the Court of Appeal were whether the inspector had erred in deciding that the development would:

  • result in isolated homes in the countryside contrary to paragraphs 78 and 79 of the NPPF; and

  • harm the character and appearance of the area and would not preserve the special qualities of the mansion, its setting or the registered park and garden.

There were two other grounds before the Court (sustainability and the application of local policy) which are site specific and are not explored here.

Isolated Homes in the Countryside

Paragraphs 78 and 79 of the NPPF set out that housing development in rural areas should be located where it will enhance or maintain the vitality of rural communities and that the development of isolated homes in the countryside should be avoided save where certain exceptions apply.

The developer argued that the existing dwellings on the site and the nature of the proposed development being within the vicinity of existing buildings meant it was irrational for the inspector to conclude that the proposed new homes would be “isolated”.

The Court, drawing on previous caselaw, noted that the test for whether homes would be isolated is their remoteness from a “settlement” rather than whether they were merely remote from “other dwellings”. To do otherwise would be to limit the circumstances where paragraphs 78 and 79 are engaged only to where development is proposed to a single dwelling in the countryside away from any other dwellings or amenities. The Court considered this could not have been the Government’s intention when making the policy.

What constitutes a “settlement” and new homes being “isolated” is a matter of planning judgement for the decision maker. In this instance, the Court was more than satisfied in the inspector’s “impeccable” reasoning that the existing buildings on the site fell short of what might constitute a “settlement” and made clear that the question of isolated homes in the countryside did not lend itself to rigorous judicial analysis and was case and fact specific.

Harm to Heritage Assets

The planning decision maker’s section 66 duty – that is, the statutory duty when considering proposals affecting heritage assets and their setting – is to “have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses."

Paragraphs 195 and 196 of the NPPF require decision makers to balance the public benefits of a development proposal with the heritage harms it causes. CMS’ experience is that some local authorities struggle to adequately address these paragraphs in committee reports, which heightens the challenge risk for any decisions relying on such reports.

Here, the developer had argued that the paragraphs should only be engaged where there is a “net” harm to heritage assets (i.e. the harms to heritage outweigh the benefits to heritage). The overall public benefits of the scheme should then be assessed against these “net” harms pursuant to paragraphs 195 and 196. The developer considered that the inspector was mistaken in not carrying out this preliminary “internal heritage balance” exercise.

The Court did not accept this, saying that neither the section 66 duty nor the relevant paragraphs of the NPPF require this extra step and there would be no justification to mandate an inspector to read one in. Interestingly, the Court said that it would have been lawful for the inspector to carry out such a preliminary exercise had she decided to but that this was at the inspector’s discretion rather than a legal requirement.

Conclusion

This decision continues the trend of the courts (and especially the Court of Appeal in decisions written by Lord Justice Lindblom, a former planning QC) declining to take an unduly legalistic approach when deciding on a challenge to an inspector’s decision. It highlights that the decision maker will have wide discretion in navigating the NPPF policy tests (including when discharging its s66 duty) and more than one methodological route may be valid where policy does not prescribe a single approach.

Case citation: City & Country Bramshill Ltd v Secretary of State for Housing, Communities And Local Government & Ors [2021] EWCA Civ 320 (09 March 2021) (bailii.org).

Article co-authored by David Blanga.