Wednesday, 11 February 2015

Harm to setting of listed farmhouse already means presumption in favour of refusal

There can be no argument - quarrying Straitgate Farm would substantially harm the setting of its Grade II listed farmhouse, for ever more; surrounding fields would be removed, different levels would be introduced, screening would be ineffective, farming may no longer be viable. In 1967, Aggregate Industries (then English China Clays) wanted to bulldoze the farmhouse; today it is protected in law.

Straitgate has been farmed for more than 400 years, as copies of legal papers we have confirm. The farmhouse is thought to date back to around 1580. Part of the surrounding land is also listed, and the rest is fundamental to the setting of the farmhouse and its continuation as a working Devon farm.

In the 2012 S1-S10 site appraisals, DCC wanted us to think that "there is a medium risk of harm to the listed building which sits within an historic landscape of Barton Fields, which may require the retention of a buffer area to preserve its setting", and that nothing could be a ‘showstopper’ for S7/Straitgate. Only later, when the Sustainability Appraisal looked at the matter, did it consider that "the setting of the Grade II listed Straitgate Farm would experience a significant negative impact".

Now, in 2015, Aggregate Industries proposes that:
An impact assessment will identify the significance and sensitivity of all heritage assets affected by the proposals, and includes an impact assessment to evaluate the magnitude of change and thus direct and indirect impact on heritage assets. In particular the potential impact on the setting of designated heritage assets within 2km will be considered in relation to the Landscape and Visual Impact Assessment. If mitigation can be designed to reduce the effects of potential impacts on the settings of the statutorily protected heritage assets, then a strategy will be written and (assuming its implementation as part of the permitted scheme) the reduced residual effect will be assessed in light of the mitigation.
The issue of 'heritage assets' could be very important - not just a material planning consideration.

We mentioned the Barnwell Manor Appeal Court decision last year, but we have been reminded again by CPRE of its potential implications for Straitgate Farm. This Court of Appeal judgement upheld an earlier decision overturning permission for wind turbines in the setting of various heritage assets. CPRE, who have made representations to DCC regarding Straitgate in the past, wrote:
It is being treated as a landmark decision and is frequently referred to in subsequent planning decisions/appeals.
The importance is that it highlights the significance of the setting of a heritage asset, i.e. a listed building such as Straitgate Farmhouse. The setting includes not only views from the heritage asset, but views of the asset and its surroundings - anywhere that you get a view of the heritage asset.
The emphasis is on S66 Listed Buildings Act (1990) and the "special regard to the desirability of preserving the building or its setting". This statutory duty outweighs any policies (such as the NPPF), and as the Listed Buildings Act is worded more strongly than subsequent policies, it is helpful.
Harm to the listed farmhouse's setting would be substantial; yet, even if it were not, the judgement says:
It does not follow that if the harm to such heritage assets is found to be less than substantial, the balancing exercise referred to in policies HE9.4 and HE10.1 should ignore the overarching statutory duty imposed by section 66(1), which properly understood (see Bath, South Somerset and Heatherington) requires considerable weight to be given by decision-makers to the desirability of preserving the setting of all listed buildings, including Grade II listed buildings.
Judges ruled that once the decision-maker finds some harm to a heritage asset, that harm should be given "considerable weight", creating a "strong presumption" against the grant of planning permission.
In other words, there is a presumption in favour of refusal if harm is present.

The onus will be on AI to demonstrate that sufficiently powerful material considerations exist to justify such harm. For the decision-maker, this is not just "a simple balancing exercise but whether there is justification for overriding the presumption in favour of preservation"; preserving the setting is not a "mere material consideration to which (he) can simply attach the weight (he) sees fit in (his) judgement".

AI will also have to demonstrate that "there is no clear alternative which would generate equally powerful public benefits". If you think of AI’s extensive mineral rights in the region, covering thousands of acres, that might not be so easy; because of course there are sand and gravel deposits in other locations that wouldn’t cause as much harm, that would generate 'equally powerful benefits'.