"What is one person’s career compared to 40m people?"

As I head off to the Oval tomorrow for the England v South Africa test match my thoughts turn to my very first test match. 

It was some 42 years ago when my father took me as a (very, very) young boy to the Wanderers in Johannesburg where South Africa were taking on a tired, underperforming Australian side in something of transition.  

The South Africans were already up 1-0 in a four match series having decisively beaten Australia at Port Elizabeth and the second test would really settle matters - the South Africans having already beaten the Australians 3-1 in the 1966/67 series.

Ian Chappell, who hadn’t had a particularly good game in the first match, was picked again in the second. He hadn’t made a great impression in the 1966/67 series either but was still touted by the captain Bill Lawry as “the best all-round batsman in the world”. 

Although Chappell had made 34 in the first innings I distinctly remember my father pointing this out to me as Chappell strode out to the wicket, to replace Lawry, in the Australian second innings, that hot morning. I also remember that remark being rammed back down his throat by the crowd, to a man, as Chappell trudged back having been dismissed first ball, bowled by Eddie Barlow.

Oh, how I loved test cricket.

Sadly, from a cricketing point of view at least, the series ended two matches later. South Africa had won by 4-0 but there would be no more test cricket for South Africa, at least for another 22 years. 

The exclusion from world sporting contact due to the Apartheid regime has been well documented. I do not personally remember the Sharpeville massacre but vaguely remember the Rivonia Trial in 1963/64. These were difficult indefensible times partially resolved by the Truth & Reconciliation Commission established after Nelson Mandela’s release.

It is, I think, interesting that, in the week of Mandela’s 94 birthday and of the first test in this summer's series against South Africa, it should fall to one of those 1970 cricketers to articulate, at least for me, the importance of the exclusion. Mike Procter played only 7 tests in a short international career, all against Australia, and would no doubt, absent the ban, have played a great deal more.

In an interview this week with Jonathan Agnew on Test Match Special, Procter made clear that he had no regrets about the ban despite the effect it had on his career. He had said as much to Jim White in the Telegraph recalling the 1970 cricket protest in Cape Town.

"What is one person’s career compared to 40m people?" Indeed.

Planning for the historic environment

A history of heritage protection reform

There is a significant history of Heritage protection reform over the last twelve years.

This includes more recently the draft Heritage Protection Bill (2008), Planning Policy Statement 5 (PPS5) (2010), the Ecclesiastical Exemption (Listed Buildings and Conservation Areas) Order (2010), a Good Practice Guide for Local Heritage Listing (2012), the National Planning Policy Framework (the Framework) (2012) and the Enterprise and Regulatory Reform Bill (2012).

It is therefore worth considering just where we currently stand on the issue of how the planning system treats the historic environment.

Guidance

The Government’s Statement on the Historic Environment for England 2010 set out the Government’s vision as being “That the value of the historic environment is recognised by all who have the power to shape it; that Government gives it proper recognition and that it is managed intelligently and in a way that fully realises its contribution to the economic, social and cultural life of the nation.”

Although PPS5 has now been deleted by virtue of the Framework, the Historic Environment Planning Practice Guide, issued originally in respect of PPS5, continues to have relevance.  Indeed, it is said in the June 2012 revision note to the Practice Guide that “The Practice Guide remains a valid and Government endorsed document pending Government's review of guidance supporting national planning policy as set out in its response to the select committee report. The references to PPS5 Policies in this document are obviously now redundant, but the policies in the NPPF are very similar and the intent is the same, so the Practice Guide remains almost entirely relevant and useful in the application of the NPPF.”

So the primary source of guidance is now the Framework supported by the Practice Guide. Bracketed number references to ‘Paragraphs’ below are to the numbered paragraphs in the Framework.

The Framework, in its foreword, sets out that “Sustainable Development is about a change for the better … Our Historic Environment – buildings, landscapes, towns and villages – can be better cherished if their spirit of place thrives rather than withers.”

The Framework, taken as a whole, constitutes the Government’s view of what sustainable development is and means in practice for the planning system in England. In essence a proposal that fails to adhere to the historic environment policies is not sustainable development.

Objectives

The objectives of the Framework are, we are told, to:

• To put unprecedented power in the hands of communities to shape the places in which they live;
• To better support growth in the next generation the chance that our generation has had to have a decent home, and to allow the jobs to be created on which our prosperity depends; and 
• To ensure that the places we cherish – our countryside, towns and cities – are bequeathed to the next generation in a better condition than they are now. (Foreword)

Changes

So what has changed since the short-lived PPS5 was deleted.

Well, PPS5 contained 16 policies with a detailed set of objectives whereas the Framework has 16 paragraphs which are broadly framed. But have the principals changed or have they remained the same? 

Given that the Framework (i) recognises the significance of the Heritage Asset and the character of place together with (ii) the importance of recording assets and monitoring them to prevent deterioration not only to recorded Heritage Assets but also those that could be discovered in the future and (iii) looks to  

Developments within Conservation Areas and World Heritage sites that better reveal their significance and make a positive contribution to better reveal the assets significance then the answer is probably – No, the principals have not changed.  

The Framework does however see a change from PPS5 in so far as there is no longer an express presumption in favour of conservation of designated heritage assets. Instead we now have the presumption in favour of sustainable development being development that meets the objectives of the policies of the Framework as a whole but specifically including the principle of delivering heritage asset conservation which is given ‘great weight’ throughout the Framework.

English Heritage has produced three documents to assist an understanding of the application of the Framework to heritage planning. The first is a Commentary on the NPPF and the others are a Comparison of PPS5 Policies with Historic Environment related Policies in the NPPF (Part 1 and Part 2)

English Heritage summarise the position as follows: 

• Understanding policy and applying it can be challenging.  Very succinct policy sometimes leaves the reader with some uncertainties about how they can best achieve the desired outcome. 
• PPG’s 15 and 16 contained policy, guidance and information.
• PPS5 contained largely policy but some guidance.
• NPPF is just policy.
• The transition appears to raise questions for local planning authorities, but in principle local planning authorities are free to develop the guidance as they see it in order to empower the Localism agenda.

Glossary

The Framework contains a Glossary of key definitions. There are no significant changes in substance from the PPS5 e.g. ‘conservation’; ‘significance’; ‘heritage asset’; ‘designated heritage asset’; ‘setting’; ‘archaeological interest’; and, ‘historic environment record’. English Heritage sees this approach as enabling “the same unified approach that PPS5 took to conservation of significance regardless of the type of asset being considered and regardless of the consent being sought” (planning permission, listed building consent or conservation area consent). (Annex 2)

English Heritage points out that while ‘Architectural’, ‘artistic’ and ‘historic interest’ were all defined in PPS5, they were not done so as to create particular terms of art and that their natural meanings accord with the intention behind the policies. It is pointed out that other documents, such as DCMS’ Principles of Selection for Listed Buildings and English Heritage’s Conservation Principles, look at these issues in much greater detail.

Presumption in favour of sustainable development

For plan-making this means that:

• LPAs should positively seek opportunities to meet the development needs of their area;
• Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless 
• any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
• specific policies in this Framework indicate development should be restricted. (Paragraph 14)

In the heritage context this means specifically that:

• Plans should set out a positive strategy for the conservation and enjoyment of the historic environment recognising their irreplaceable nature. They should take into account: the desirability of putting heritage assets to a viable use consistent with their conservation; the contribution conservation makes to wider sustainability aims; and, the desirability of new development contributing to local character. (Paragraph 126) 
• They should be consistent with the principles and policies set out in the Framework, including those relating to the historic environment. (Paragraph 150)  
• They should include strategic policies to deliver conservation and enhancement of the historic environment, including landscape. (Paragraphs 156 & 157) 
• They should be based on up-to-date evidence about the historic environment. Local planning authorities should either maintain or have access to a historic environment record. (Paragraph 169)

 For decision-taking this means:

• Approving development proposals that accord with the development plan without delay; and
• Granting permission where the development plan is absent, silent or relevant policies are out-of-date unless:
• any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
• specific policies in this Framework indicate development should be restricted. (Paragraph 14)

In the specific context of conservation of heritage and sustainable development this means that: 

• Development that fails to adhere to the historic environment policies, because it fails to give due weight to conservation for example, is not sustainable development given that all of the policies in the Framework constitute the Government’s view of what sustainable development in England means in practice. (Paragraph 6)
• One of the key dimensions of sustainability is protecting and enhancing our historic environment. (Paragraph 7)
• Economic, social and environmental improvement should be sought jointly and simultaneously. (Paragraph 8) 
• Pursuing sustainable development involves seeking improvements to the quality of the historic environment, amongst other things. (Paragraph 9)
• There is a presumption in favour of sustainable development, which means that development needs should be met by the way local plans are made and planning decisions taken, unless policies within the Framework, such as those protecting designated heritage assets, indicate development should be restricted. (Paragraph 14) 
• One of the twelve core principles that should underpin both plan-making and decision-taking is that planning should conserve heritage assets in a manner appropriate to their significance, so that they can be enjoyed for their contribution to the quality of life of this and future generations. (Paragraph 17)
• Account should always be taken of: the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation; their potential to contribute to sustainable communities; and the desirability of new development making a positive contribution to the historic environment’s local distinctiveness. (Paragraphs 126 & 131) 
• Historic environment policies in the Framework that relate to decision-taking should be read as applying to the consideration of neighbourhood development orders (including community right to build orders) where relevant. (Paragraph 202)

Good Design

That is not the end of the matter. Good design is also an important consideration in planning for the historic environment. The Framework tells that:

• Government attaches great importance to design. Good design is a key aspect of sustainable development. (Paragraph 56)
• LPAs are urged to plan positively for the achievement of high quality and inclusive design. (Paragraph 57)
• Local and neighbourhood plans should develop robust and comprehensive policies that set out the quality of development that will be expected for the area. (Paragraph 58)
• LPAs are urged to consider using design codes to help deliver high quality outcomes. Design policies should avoid unnecessary prescription or detail and should concentrate on guiding the overall scale, density, massing, height, landscape, layout, materials and access of new development in relation to neighbouring buildings and the local area more generally. (Paragraph 59)
• LPAs should not attempt to impose architectural styles or particular tastes and they should not stifle innovation, originality or initiative through unsubstantiated requirements to conform to certain development forms or styles. It is, however, proper to seek to promote or reinforce local distinctiveness. (Paragraph 60)
• Securing high quality and inclusive design goes beyond aesthetic considerations and planning policies and decisions should address the connections between people and places and the integration of new development into the natural, built and historic environment. (Paragraph 61)
• Local design review arrangements should be put in place to provide assessment and support to ensure high standards of design. Early engagement on design produces the greatest benefits. In assessing applications, local planning authorities should have regard to the recommendations from the design review panel. (Paragraph 62)
• In determining applications, great weight should be given to outstanding or innovative designs which help raise the standard of design more generally in the area. (Paragraph 63)
• Permission should be refused for development of poor design that fails to take the opportunities available for improving the character and quality of an area and the way it functions. (Paragraph 64)
• Permission for proposals buildings or infrastructure which promote high levels of sustainability should not be refused because of concerns about incompatibility with an existing townscape, if those concerns have been mitigated by good design (unless the concern relates to a designated heritage asset and the impact would cause material harm to the asset or its setting which is not outweighed by the proposal’s economic, social and environmental benefits). (Paragraph 65)
• Design proposals will be expected to evolve to take account of the views of the community and proposals that can demonstrate this in developing the design of the new development should be looked on more favourably. (Paragraph 66)

Conserving and enhancing the historic environment

The question of the weight to be given to conservation of heritage assets always arises.

The Framework does not contain an express presumption in favour of the conservation of designated heritage assets as PPS5 did, but the presumption in favour of sustainable development is a presumption in favour of development that meets the objectives and policies of the Framework, which has as one of its twelve core principles, the conservation of heritage assets. (Paragraph 17)

It is suggested that ‘great weight’ should be given to the objective of conserving designated heritage assets. (Paragraph 132) as this is the same phrase as is used in connection with the conservation of National Parks and Areas of Outstanding Natural Beauty. (Paragraph 115)

Harm

Given the conservation objective, all harm, whether from demolition or from harm through development within the setting of a designated heritage asset, requires ‘clear and convincing justification’. Loss of a grade II building should be exceptional and grade I and II* buildings, and loss of other highly valued designated heritage assets should be wholly exceptional. (Paragraph 132)

Non-designated archaeological sites of demonstrable equivalence to scheduled monuments should be treated as designated heritage assets. (Paragraph 139)

But there is recognition that such loss or harm can be acceptable. It is a question of whether it can be justified. This is the same as it was under PPS5. Total loss of a designated heritage asset or substantial harm to it (physical harm or harm through development within the setting), can be justified either on the grounds that the harm is necessary to deliver public benefits that outweigh that harm, or because the asset is demonstrably non-viable and it is better to free-up the site than keep the asset. (Paragraph 133)

Less than substantial harm (again, physical harm or harm through development within the setting) should be weighed against public benefits. (Paragraph 134)

Conservation Areas

Turning to how one deals with conservation areas. These are designated heritage assets, so great weight should be given to their conservation also. (Paragraph 132)

Loss of a building or other element that makes a positive contribution (such as a designed square) requires clear and convincing justification and may amount to substantial or less than substantial harm, depending on the degree of contribution to significance of the conservation area overall. (Paragraphs 132 & 138)

There is a positive obligation to look for opportunities to enhance or better reveal the significance of a conservation area. (Paragraph 137)

Setting

Harm to a heritage asset through development within its setting is assessed against the same policies as for physical harm to the significance of designated heritage assets generally. (Paragraph 132)

So harm should be judged against the public benefits delivered by the proposal. (Paragraphs 133 & 134)

Decision-makers should look for opportunities to enhance or better reveal the significance of the asset through development within the setting. (Paragraph 137)

Recording heritage assets that will be harmed or destroyed

This is materially the same as for PPS5.

Developers are required to record and advance understanding of the significance of any heritage assets to be lost, wholly or in part, as part of any permitted development. The obligation should be proportionate to the importance of the asset and the impact and the evidence should be made publicly available. (Paragraph 141)

Recent appeal decision

We have recently seen the first major appeal decision centrering on impact on a heritage asset. (See APP/V5570/A/11/2162902 dealing with the former Moorfields Primary School at Bunhill Row in London)

That site affects a grade I asset, and given that the Framework heritage policies are so similar to the previous PPS5 the outcome was never in any real doubt because it harmed a grade I asset.

It is interesting that the Inspector weighed and balanced the various issues given that ‘the Framework indicates that it is appropriate to weigh the public benefit against the harm’ (see paragraph 22 of the decision letter) and looked in particular at the issue of viability (see paragraphs 33 and 34).

On Viability the Inspector said that:

“Although the documents accompanying its sale in 2008 suggest potential development scenarios and the appellant is a registered charity, this carries no weight, as the site is purchased at the developer’s risk and these are not exceptional circumstances. Some additional figures have been put forward to justify the purchase price relating to the alternative uses and marketing for other similar sites. However, the data for alternative sites is basic and dates from 2009, and it not clear that it can be relied upon as an indicator of current values. Moreover, there is no background information supplied for the comparative sites referred to for the market value and it is not clear whether their site circumstances are similar.” So put brutally, paying too much for a site is not an exceptional circumstance; it’s a risk the appellant takes.

  

The Inspector concluded that:

“39 The appeal site is previously developed land in a highly sustainable location, close to facilities and public transport. There is no doubt that the scheme would be deliverable and contribute to the local housing stock, provide affordable housing, including family homes, create jobs, provide community floor space, and improve biodiversity and promote sustainable construction, design and travel patterns. Allowing this appeal may also ensure that the timescale for the provision of 60% affordable housing with grant funding could be achieved.”

“40 However, one of the core planning principles in the Framework is to conserve heritage assets in a manner appropriate to their significance so they can be enjoyed for their contribution to the quality of life of this and future generations. The assets in this case are of exceptionally high historic and architectural interest, influencing the character and distinctiveness of the area and as such they are of very high value to the public.

41 The appeal scheme would significantly harm the setting of the heritage assets, and the historic landscape, detracting from experience and appreciation of their heritage value to the public. In doing so, it would detract from the contribution of the heritage assets to society for this and future generations. In addition there would be harm to the living conditions of neighbours. As there would be a legacy of harm, I conclude that the appeal scheme would not constitute sustainable development and it would not comply with the aims of the Framework.”

Anticipated changes

The Enterprise and Regulatory Reform Bill is part of the Coalition’s continuing drive to simplify the Planning System.

Under these proposed changes instead of having a separate system of conservation area demolition consent for certain buildings in such areas, proposals for demolition would in the future be considered by the LPA as part of the application for planning permission. There would be a new offence for failing to obtain such a planning permission.

The measures also include provision for identifying structures fixed to or within the curtilage of a listed building which don’t have to be treated as part of the listed building. The measures also propose a modification to the current system of Certificates of Immunity from Listing (COI) which allows that a COI can be applied at any time for a building and not just, as at present, when a planning application is made or has been granted.

The Bill includes measures for the new system of heritage partnership arrangements between an LPA and the owner of a listed building which would allow for specified works involving the alteration or extension of a building. Such an agreement, though, could not be used to grant listed building consent for demolition.

The Bill is currently going through Parliament and its provisions may change as it does so. There is therefore an ongoing process of Heritage protection reform without necessarily having an end in sight.