Whitby v Secretaries of State for Transport and Communities and Local Government and Network Rail Infrastructure Limited [2016] EWCA Civ 444

On 6 May 2016 the Court of Appeal handed down its Judgment in the appeal from the first reported case on the meaning and interpretation of paragraphs 132 and 133 of the National Planning Policy Framework (“NPPF”).

The case concerned the significant demolition of historic parts of Manchester city centre to make way for the construction of a new railway. Following an inquiry, the Secretaries of State Transport and for Communities and Local Government accepted the Inspector’s recommendation that Transport and Works Act orders and listed building consents should be granted for what had been proposed. An objector at that appeal, Mr Whitby (a former President of the Institution of Civil Engineers), who had appeared and made representations at the inquiry, sought to challenge that decision. He claimed that the decision maker had not properly considered his alternative alignment which would have caused less harm to the listed structures (“Option 15”).

Put simply, the scheme which was consented by the Secretaries of State caused more harm to the heritage assets of the centre of Manchester whilst Option 15 would harm the development of Middlewood Locks, and the serious consequences of this for the regeneration of central Salford. Mr Whitby argued that the Inspector in providing his positive recommendation did not compare the two scheme fairly.

Mrs Justice Lang dismissed the applications in the High Court and his appeal to the Court of Appeal also failed.

Lord Justice Lindblom, giving the lead Judgment, found that the Inspector faithfully applied the guidance, which amplifies the policy in paragraph 133 of the NPPF, that “[for] the loss to be necessary there will be no other reasonable means of delivering similar public benefits, for example through different design or development of an appropriate alternative site”. He found that the Inspector did not simply undertake a conventional comparison between alternative sites or schemes, without heed to the relevant statutory imperatives for decision-makers in sections 16(2), 66(1) and 72(1) of the Listed Buildings Act, and the relevant national policy and guidance. On the contrary: “he was doing exactly what statute requires of a decision-maker in a case of substantial harm to the significance of designated heritage assets, including substantial harm to grade I listed buildings, and exactly what the decision-maker is enjoined to do by government policy in the NPPF and by the PPS5 Practice Guide”.

The Court made clear that the proper approach was to consider the test set out at paragraph 133 of the NPPF and in the paragraph 91 of the (then extant) PPS5 Practice Guide of whether the substantial harm that the proposed works would cause to designated heritage assets was “necessary”. Option 15 did not provide a “reasonable alternative” to the proposed works on account of the likely adverse impacts on the prospects of successful comprehensive development of the Middlewood Locks site, which would have serious consequences for the regeneration of Central Salford, both in the immediate and longer term.

The Judge held: “This was a classic exercise of decision-making judgment, wholly in line with the policies in paragraphs 132 and 133 of the NPPF and the guidance in paragraph 91 of the PPS5 Practice Guide”.

He went on to say: “Paragraph 133 [of the NPPF] is not prescriptive as to the considerations that may be relevant to an assessment of the kind it requires. This will depend on the particular circumstances of the case in hand, which will vary widely. But in this case it was undeniably open to the inspector, and in their turn the Secretaries of State, to bring the harm to the redevelopment of Middlewood Locks and to the regeneration of central Salford into account in assessing the merits of Option 15 as an alternative to the order scheme. Indeed, the assessment would have been futile if this had not been done”.

As the first reported case on the meaning and interpretation of  paragraphs 132 and 133 of the NPPF, it re-emphasises the large role that planning judgment plays in how a decision maker discharges his statutory duties in respect of heritage assets. The Court chose not to prescribe an approach as to how paragraphs 132 and 133 should be applied.

Richard Kimblin QC and Jack Smyth are part of the Planning and Environmental Group at No5 Chambers. Please click here to view Richard Kimblin QC’s profile and here for Jack Smyth.