The more things change the more they stay the same
In their response to the consultation, the Government states that:
“The Government recognises the importance of the historic environment and has no intention to reduce, whether through the Framework or otherwise, the important protections that exist for it.”
This, perhaps, explains why the content of historic environment policy remains largely unchanged in the NPPF, with a focus on re-ordering and re-structuring (notably in relation to the old paragraphs 132 and 141).
World Heritage Sites
Greater reference is now made to the importance of World Heritage Sites and their international recognition and Outstanding Universal Value both in policy and the Glossary. Whilst not a new concept, it is purposely headlined in the opening paragraph of the chapter, no doubt in part to signal the importance of World Heritage Sites as a planning consideration to UNESCO, given concerns regarding perceived risk to World Heritage Sites from development proposals in London and Liverpool. Nevertheless, as heritage assets in their own right, World Heritage Sites still don’t attract the statutory protection afforded to Listed Buildings and Conservation Areas.
Otherwise, opportunity is taken to neatly align the application of national heritage policy (paragraph 193) with the application of the statutory heritage duties in light of heritage case law since the introduction of the Framework in 2012. The new NPPF emphasises that great weight should be given to the conservation of designated heritage assets regardless of the degree or amount of any potential harm. This approach reflects the ‘considerable importance and weight’ that must be given to the statutory duty seeking preservation of listed buildings and their settings, as well as the character or appearance of conservation areas, even where the harm is less than substantial.
Importantly, however, in reflecting this approach in a policy which applies to all designated heritage assets, the same great weight also needs to be given to any degree of harm to World Heritage Sites, Scheduled Monuments, Registered Park and Gardens and Registered Battlefields, which are otherwise not the subject of statutory duties.
Opportunity has also been taken to break down the policy on approach to consideration of proposals affecting designated heritage assets, so that the presently stated requirements for clear and convincing justification for harm and the exceptional and wholly exceptional instances for substantial harm now form a single explicit policy (paragraph 194).
The now tried and tested policy concept of substantial (paragraph 195) and less than substantial harm (paragraph 196) remains, and, as now, continues to trigger different considerations to be weighed in the balance. Notably in instances of less than substantial harm, ‘securing optimum viable use’, remains in the final text as a public benefit, albeit with the caveat of ‘where appropriate’, providing important clarity that this consideration is not always relevant and does not relate to all asset types. Notwithstanding this minor refinement, the Government has missed an opportunity to resolve the potential for ambiguity and confusion in assessing and justifying heritage harm. The debates regarding the correct calibration of heritage harm will continue.
The Role of Historic Environment Records
Importantly, LPAs are now expected to maintain ‘or have access to’ a historic environment record (paragraph 187). One of its purposes is to be used to ‘predict the likelihood that currently unidentified heritage assets […] will be discovered in the future’, perhaps, aimed at reducing prospects of untimely identification of heritage assets delaying the delivery of sustainable development.
6 August 2018