approach required in cases of “substantial harm … (or total
loss of significance …)” (paragraph 195) from that required in
cases of “less than substantial harm” (paragraph 196). But the
decision-maker is not told how to assess what the “harm” to
the heritage asset will be, or what should be taken into account
in that exercise or excluded. The policy is in general terms.
There is no one approach, suitable for every proposal affecting
a “designated heritage asset” or its setting.”
48. On behalf of the Secretary of State, Mr Katkowski suggested that I should approach
Bramshill with caution and he submitted that paragraph 74 cited above is obiter.
Whilst that might, strictly speaking, be true given the facts of the case, Lindblom LJ’s
observations directly concern the interpretation of the test of substantial harm and are,
in any event, consistent with a line of authority from the Court of Appeal emphasising
the self-effacing role of the Court in respecting the expertise of Planning Inspectors
and guarding against undue intervention in policy judgments within their areas of
specialist competence which do not lend themselves to judicial analysis. (See in this
context Hopkins Homes Ltd v Secretary of State for Communities and Local
Government [2017] UKSC 37 and (R (Samuel Smith Old Brewery) v North
Yorkshire County Council [2020] PTSR 221)).
49. Before leaving this ground, it is necessary to say a few words about the judgment of
Jay J in Bedford Borough Council v Secretary of State [2013] EWHC 2847 (Admin).
This is because Mr Drabble submitted the judgment has been misinterpreted, whilst
on behalf of the Secretary of State, Mr Katkowski submitted that the ratio of the case
is to be found, in part, at the end of paragraph 24 (the impact on significance was
required to be serious such that very much if not all of the significance was drained
away).
50. In Bedford, the question as to whether the Inspector had misconstrued or misapplied
the policy concept of substantial harm was in issue before the Court ([11]). Jay J saw
the epithets “substantial” and “serious” as essentially synonymous in the policy
context: see [21] and [26]. In [25], he observed that the decision maker was looking
for – “… an impact which would have such a serious impact on the significance of
the asset that its significance was either vitiated altogether or very much reduced”.
51. Read in context, the final sentence of [24] is Jay J’s encapsulation of the Inspector’s
application of the test of substantial harm in the decision letter which was before him
to review.
24 “…What the inspector was saying was that for harm to be
substantial, the impact on significance was required to be
serious such that very much, if not all, of the significance was
drained away.
25 Plainly in the context of physical harm, this would apply in the
case of demolition or destruction, being a case of total loss. It
would also apply to a case of serious damage to the structure of
18