the building. In the context of non-physical or indirect harm,
the yardstick was effectively the same. One 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.
26 …I have considered whether the formulation "something
approaching demolition or destruction" is putting the matter
too high in any event. "Substantial" and "serious" may be
regarded as interchangeable adjectives in this context, but does
the phrase "something approaching demolition or destruction"
add a further layer of seriousness as it were? The answer in my
judgment is that it may do, but it does not necessarily. All
would depend on how the inspector interpreted and applied the
adjectival phrase "something approaching". It is somewhat
flexible in its import. I am not persuaded that the inspector
erred in this respect.”
52. It is plain that Jay J saw the Inspector’s approach as essentially the same as the
approach that he (Jay J) endorsed in [25] as a correct basis for addressing the
question, i.e. a decision maker would properly both interpret and apply the concept of
substantial harm in the NPPF, if s/he assessed whether the impact of the proposed
development was sufficiently serious in its effect that the significance of the
designated heritage asset, including the ability to appreciate that asset in its setting,
was (if not vitiated altogether) at least very much reduced. Jay J considered the
reference to significance being “very much …drained away” as no more than an
alternative, metaphorical means of expressing the concept of substantial harm. In
considering that “substantial’ and ‘serious’ may be regarded as interchangeable
adjectives in this context” [26], his judgment is consistent with the advice in the
Planning Policy Guidance that, when considering whether or not any harm is
“substantial”, an important consideration would be whether the adverse impact
seriously affects a key element of special architectural or historic interest
53. Accordingly, read as a whole and in context, Jay J’s judgment does not import a test
of ‘draining away’ to the test of substantial harm. He was not seeking to impose a
gloss on the term. The judgment in Bedford accords with the approach stated by the
Senior President of Tribunals at [74] in Bramshill. It is clear from cases like Tesco v
Dundee [2012] UKSC 13; R(Samuel Smith) v North Yorkshire County Council
[2020] UKSC 3; Bramshill and others, that a word like ‘substantial’ in the NPPF
means what it says and any attempt to impose a gloss on the meaning of the term has
no justification in the context of the NPPF. The policy framework and guidance
provide a steer that relevant factors include the degree of impact, the significance of
the heritage asset under scrutiny and its setting. It is not appropriate to treat comments
made by a Judge assessing the reasoning of an individual decision maker, when
applying the test of ‘substantial harm’ to the circumstances before him/her, as creating
a gloss or additional meaning to the test.
54. Accordingly, Ground 1 fails.
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