45. In my judgment, the passages set out above demonstrate the Inspector performing his
own straightforward, careful estimation and characterisation of the harm to the
Buxton Memorial and, as a consequence, to the Garden. His analysis is a sophisticated
and, at times, poetic calibration of the harm. He begins by acknowledging the
architectural and historic significance of the Buxton Memorial and the open spatial
context in which it sits (IR 15.65/6). Turning to harm, he expresses the view that the
‘radically differing aesthetic moods of existing and proposed structures would collide
in uneasy and discordant juxtaposition’. The ‘visual dominance of [the memorial]
would unsettle and crowd the BM’ (IR15.67). He concludes that whilst the Buxton
Memorial would remain physically unaffected by the proposal, it would fail to
preserve its setting which he directs himself (correctly) as being of great importance
and considerable weight, albeit that the harm ‘remains well below the threshold of
substantial’ (IR15.69). In the context of the wider garden, he arrives at the view that
“the exuberance of the Teulon’s structure would sit uncomfortably with the more
sober and restrained modernity of the proposal”, albeit that “these adverse effects
would be partly mitigated by the more open and appreciative way the BM would be
experienced when viewed from the Embankment walk”. He concludes that the
measure of harm to the RPG would be moderate (IR15.94).
46. In this context, read fairly and as a whole, his references to the ‘Bedford test’ alighted
on by Mr Drabble at IR15.117 and 15.187 are no more than the Inspector
confirming, or cross checking his analysis, conducted by reference to his view of the
test as the ‘serious degree of harm to the asset’s significance’, by reference to the case
advanced before him. In the case of IR15.88 the reference is no more than the
Inspector repeating back the submissions made to him, to dismiss them as
‘considerably overstated’. It follows that I do not accept Mr Drabble’s submission
that the Inspector’s reasoning was dependent on Bedford and thus in error. The
Inspector formulated his own test, namely ‘the serious degree of harm to the asset’s
significance’. This is unimpeachable and Mr Drabble did not attempt to impeach the
formulation or propose an alternative formulation.
47. Moreover, the exercise conducted by the Inspector is entirely consistent with the
approach to paragraphs 195 and 196 (now 201 and 202) of the NPPF, stipulated by
the Court of Appeal in City & County Bramshill Limited v Secretary of State [2021] 1
WLR 5761. The question whether there will be substantial harm to a heritage asset is
a matter of fact and planning judgment and will depend on the circumstances. The
NPPF does not direct the decision maker to adopt any specific approach to identifying
harm or gauging its extent beyond a finding of substantial or less than substantial
harm. There is no one approach to the question:
“74 The same can be said of the policies in paragraphs 195
and 196 of the NPPF, which refer to the concepts of
“substantial harm” and “less than substantial harm” to a
“designated heritage asset”. What amounts to “substantial
harm” or “less than substantial harm” in a particular case will
always depend on the circumstances. Whether there will be
such “harm”, and, if so, whether it will be “substantial”, are
matters of fact and planning judgment. The NPPF does not
direct the decision-maker to adopt any specific approach to
identifying “harm” or gauging its extent. It distinguishes the
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