Recent decisions by the Secretary of State for Communities and Local Government have caused a bit of a stir, and raised questions about the application of policies in the National Planning Policy Framework (NPPF) regarding degrees of ‘harm’ to heritage assets.

The NPPF would seem to be quite straightforward: “great weight should be given to the asset’s conservation. The more important the asset, the greater the weight should be”. This also tallies with the overarching policy within the Planning (Listed Buildings and Conservation Areas) Act 1990 – particularly section 66: “the Secretary of State shall 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”. Clear, then that the weight of consideration is in favour of the retention or protection of heritage.

What is less clear is how far one should weigh significance, and indeed harm, against the benefits of a proposed scheme. A number of recent decisions by the Secretary of State weighted the harm to an asset – be it ‘substantial’ or ‘less than substantial’ in NPPF speak – to be an overriding factor in refusal of schemes, notwithstanding their strong environmental or housing benefits. In the majority of cases, the harm has not been directly to the building or asset, but to its setting. The NPPF implies at section 133 that ‘substantial harm’ is the total or partial loss of an asset or its setting, and therefore development affecting the fringes of setting, slightly altering a setting, or visible in a view, may only result in ‘less than substantial harm’, depending on the significance of the asset. There are obvious cases where development in or on the fringes of the setting would constitute substantial harm (who would try and build a wind farm anywhere near Stonehenge?), but generally the NPPF provides a fair guide.

We should remember here that setting makes a contribution to an asset’s significance, but is not an asset itself. However, setting is often much wider than is obvious – the definition is ‘the surroundings in which a heritage asset is experienced’ (The Setting of Heritage Assets, English Heritage, 2011). This means that the setting could include a hill a mile away, from which there is a view of the asset, and the bit of land in between. Not safe then to assume that if a development isn’t within the traditional setting (park and garden) of a Grade I listed building, it won’t have an adverse effect on the setting of the asset, or indeed cause substantial harm to the significance of the asset itself. Worryingly, for certain schemes, most notably wind farms and housing, harm to a heritage asset or its setting seems to have the potential to be a showstopper.

In a bizarre contrast to the above, the A21 Widening scheme (Tonbridge to Pembury), involving the demolition of a number of Grade II listed and curtilage listed buildings, was recently approved by the Secretary of State despite the substantial harm to the heritage assets… It would seem that there is a degree of play in the term ‘harm’, depending on the type of scheme in question. We can expect more cases to go from planning, to appeal, to Secretary of State, to court – and watch out for a consistent reading of policy.

What these current cases are telling us is that changes to the setting of an asset, or impacts to setting, have the power to stop a scheme in its tracks – or at least send it to the High Court for judgement. Development in a rural setting is always likely to be controversial, and increasingly heritage is a determining factor in a refusal. A solid justification of the scheme is necessary to outweigh ‘less than substantial’ harm. It behoves us all to take note of the heritage assets in the vicinity of a development site, and to examine carefully what their setting may be. A deficient assessment of impacts and their effects could sound the death knell for a development, and the case law thus far has by no means led to a cut and dried approach to the measure of harm.