Appeal by Gladman. PINS Reference: APP/V2255/W/15/ , & Swale Borough Council reference: 15/500671/OUT & 15/510595/OUT

Transcription

1 CPRE Kent 7 Heritage Appeal by Gladman PINS Reference: APP/V2255/W/15/ , & Swale Borough Council reference: 15/500671/OUT & 15/510595/OUT Land Off London Road, Newington, Kent. Proof of Evidence of Emma Rouse MCIfA MA BA Hons Wyvern Heritage and Landscape

2 2 FONTHILL COTTAGES HINDON LANE TISBURY, WILTSHIRE SP3 6QD POND FARM, LONDON ROAD, NEWINGTON Heritage Statement and Appraisal MCIfA MA BA Hons OCTOBER 2016

3 Table of Contents 1. Introduction and Summary The Site and its context The proposed development and planning history Planning Policy Context Impact of the proposed development on the setting of Heritage Assets - Methodology Impact of the proposed development on the setting of Heritage Assets Analysis...19 Grade II Listed Pond Farmhouse ( ) and undesignated farm buildings associated with the farmstead...19 Other heritage assets within the vicinity of the proposed development Policy and Statutory Implications of the Heritage Assessment...25 Appendices...27 A Additional Historic Maps...27 B. Extract from Newton Tithe Apportionment C. Additional Photographs...29 Heritage Statement: Pond Farm, London Road, Newington, Kent October Page

4 1. Introduction and Summary 1.1. This heritage assessment was undertaken by Emma Rouse, Consultancy Principal. My academic qualifications are: Bachelor of Arts (Hons) Archaeology at Cambridge University 2003 Master of Arts (Hons) Archaeological Surveying at Durham University I am the principal at Wyvern Heritage and Landscape Consultancy which is a Registered Organisation with the Chartered Institute of Archaeologists and specialises in the preparation of heritage statements, the preparation of heritage management and action plans, historical and archaeological research, historic landscape analysis and historic characterisation I have considerable experience of interpreting historic landscape character and the assessment of the impacts of development on heritage assets and heritage interest, and an expert understanding of the later landscape history of southern England I am a Member of the Chartered Institute for Archaeologists, the highest corporate grade of membership Wyvern Heritage and Landscape Consultancy was approached by CPRE Kent to review the documentation regarding potential impacts on heritage assets by a proposed development to the south of London Road, Newington, Sittingbourne (15/510595/OUT) I was particularly asked to consider the potential impact of this proposal on the setting of the designated heritage asset of Pond Farmhouse and the associated undesignated heritage asset of its related farm buildings. I therefore undertook a site visit on the 27 th September Following the observations made on this site visit combined with my review of the Heritage Statement produced on behalf of Gladman Developments Ltd by CgMs (November 2015). I was then asked by CPRE Kent to provide this heritage statement A Heritage Statement is necessary as Section 66 of the Planning (Listed Building and Conservation Areas) Act 1990 states that special regard shall be paid to the desirability of preserving the setting of Listed buildings. One of the core planning principles of the National Planning Policy Framework (NPPF) is the conservation of heritage assets in a manner appropriate to their Heritage Statement: Pond Farm, London Road, Newington, Kent October

5 significance. More details of national policy in relation to the historic environment are set out in Section 12 of the Framework and paragraph 128 indicates that applicants should provide a description of the significance of any heritage assets affected by their proposals (which is one of the purposes of this Statement). The same paragraph states that The level of detail should be proportionate to the assets importance and no more than is sufficient to understand the potential impact of the proposal on their significance Paragraph 132 of the Framework states that When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset s conservation. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification. The Framework also relates importance in terms of special interest to the weight that should be given to the assets conservation When considering the impact of a proposed development the National Planning Policy Framework refers to material harm (paragraph 65), less than substantial harm (paragraph 134) and substantial harm (paragraph 133) to heritage assets and their settings together with the planning consequences of any such findings. It is therefore the role of the heritage assessor to give reasoned arguments as to why the effects found should fall into one of these categories and thereby which paragraph of the NPPF applies. In the analysis of the impacts of the proposed development below, a clear structure is set out on how this assessment of impact is undertaken Useful National Guidance which has been referred to includes, Historic England guidance Historic Environment Good Practice Advice in Planning Note 3. The Setting of Heritage Assets and Note 2. Managing Significance in Decision-Taking in the Historic Environment (2015) as well as Seeing History in the View (2011) 1. Reference is also made to the published CLG Planning Practice Guidance to the National Planning Policy Framework (2014). 1 On 1st April 2015 the Historic Buildings and Monuments Commission for England changed its common name from English Heritage to Historic England. We are now re-branding all our documents. Although this document refers to English Heritage, it is still the Commission's current advice and guidance and will in due course be rebranded as Historic England. [last accessed December 2015] Heritage Statement: Pond Farm, London Road, Newington, Kent October

6 1.11. My heritage assessment, Section 6, looked at the impact of the development on the setting of the Grade II Listed Pond Farmhouse and associated undesignated farm buildings to its south It concluded that there would be a major effect on several key elements of the settings of these Listed buildings which relates to their significance leading to adverse material harm: The permanent removal of an area of rural agricultural land in orchard cultivation forming a key element of the setting this heritage asset; The loss of last physical historic separation between the farmstead and the modern settlement edge of Newington; Impact on key views from within the site and from Mill Hill south towards the site; and The cumulative effects on the group of heritage assets As explained above, the separate test in Section 66 of the Planning (Listed Buildings and Conservation Area Act 1990) applies, requiring the decision-maker to pay special regard to the desirability of preserving the buildings or their settings or any features of special architectural or historic interest which they possess. For the reasons set out above, the proposed development would fail to preserve the settings of the Listed Building In terms of the NPPF, I consider the harm identified to both the designated and undesignated heritage assets to be material, but to be less than substantial, within the meaning of paragraph 134. There would be no direct harm to either the Listed Grade II Farmhouse or the associated undesignated heritage assets forming the related farm buildings but there would be a major effect on significant components of its setting leading to material adverse harm. Heritage Statement: Pond Farm, London Road, Newington, Kent October

7 2. The Site and its context 2.1. The proposed site consists of two fields of 8.2 hectares to the south side of London Road to the west of Newington. There is one public right of way crossing the north-west corner of the site The western field is a commercial orchard while the eastern field is also in agricultural production for fruit To the north of the site there is a large hedge which shields it from the A2 (London Road) as well as several dwellings. The south of the site abuts hedging beyond which are further orchards. The eastern side abuts dwellings which front onto Playstool Road. To the west of the site are two fields with an industrial estate beyond, there is substantial tree cover which generally shields it from Newington Industrial Estate There are no designated or undesignated heritage assets within the site boundary The Grade II Listed Pond Farmhouse lies to the immediate north of the site and the northern site boundary surrounds the undesignated farm outbuildings which lie to the south of the Farmhouse. 3. The proposed development and planning history 3.1. The scheme is an outline application (15/510595/OUT) with all matters reserved (except for the details of a vehicular access point from London Road, including the widening and realignment of the A2) for residential development of up to 126 dwellings (including 30% Affordable), plus 60 units of Extra Care (Use Class C2), an allocated 1/4 acre of serviced land for a potential doctors surgery, planting and landscaping, informal open space, children s play area, surface water attenuation, and associated ancillary works This scheme is the subject of an appeal against non-determination. Heritage Statement: Pond Farm, London Road, Newington, Kent October

8 3.3. It is a resubmission to a larger scheme (15/500671/OUT) for residential development of up to 330 dwellings plus 60 units of extra care (including a minimum of 30% affordable), an allocated 1/4 acre of serviced land for potential doctors surgery, demolition of farm outbuilding, planting and landscaping, informal open space, children s play area, surface water attenuation, a vehicular access point from London Road and associated ancillary works. This is also subject of an appeal against non-determination My client CPRE Kent have instructed me to concentrate on the impacts on the revised scheme (15/510595/OUT) Swale Borough Council s Planning Committee resolved, at the 26th May 2016 meeting, that had it been determining planning application 15/510595/OUT, it would have refused planning permission for the following reasons; The proposal does not constitute sustainable development as defined by the National Planning Policy Framework (NPPF) because of the following adverse social, environmental and economic impacts: 1. The excessive scale of the proposal which is out of proportion to the modest size of the village of Newington. 2. Landscape and visual harm. 3. The proposal would result in a significant and unacceptable loss of the best and most versatile agricultural land. 4. The short term construction and longer term extra-care employment opportunities could be provided elsewhere through other more suitable developments. 5. Development within the countryside that is unwanted by the community. 6. The site is not necessary as the council will be able to secure a 5 year supply of housing land on more suitable sites within a reasonable period of time I note that impact on heritage assets was not included within the putative reasons for refusal cited by Swale Borough Council in their letter of the 14 th June 2016, and that paragraph 9.15 of the Report to Planning committee on the 28 th April 2016, based on the information provided by the CgMs Heritage Statement, does not find adverse harm to the Designated and non-designated heritage assets. However this more detailed Heritage Assessment clearly indicates that the officer did not consider the full extent of the setting of the designated Pond Farmhouse and its associated undesignated farm buildings. Heritage Statement: Pond Farm, London Road, Newington, Kent October

9 4. Planning Policy Context 4.1. I set out below my understanding of the principal cultural heritage assessment requirements of the Planning (Listed Building and Conservation Areas) Act 1990, National Planning Policy Framework, other National Policy, Local Plan Policy and relevant guidance. Statutory Provisions: Section 66 and Section 72 of the Planning (Listed Building and Conservation Areas Areas) Act The term special regard is a key concept in Section 66 of the Planning (Listed Building and Conservation Areas) Act 1990 In considering whether to grant planning permission for development which affects a Listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses. National Planning Policy 4.3. Relevant national planning policy includes the National Planning Policy Framework (NPPF) including the core planning principles and section 12 of the framework relating to the Historic Environment At the heart of the NPPF is a presumption in favour of sustainable development; this is the golden thread (paragraph 14) which should run through decision-making However as Paragraph 9 states pursuing sustainable development involves seeking positive improvements in the quality of the built, natural and historic environment One of the core planning principles in the National Planning Policy Framework is the conservation of heritage assets in a manner appropriate to their significance, so that they can be enjoyed for their contribution to the quality of life of this and future generations (NPPF paragraph 17). Heritage Statement: Pond Farm, London Road, Newington, Kent October

10 4.7. An Historic Asset is A building, monument, site, place, area or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. Heritage asset includes designated heritage assets and assets identified by the local planning authority (including local listing). (Framework Annex 2: Glossary) 4.8. The significance of an asset (for heritage policy) is The value of a heritage asset to this and future generations because of its heritage interest. That interest may be archaeological, architectural, artistic or historic. Significance derives not only from a heritage asset s physical presence, but also from its setting. (Framework Annex 2: Glossary). In my evidence below I use the term heritage interest and its constituent components of archaeological, architectural, artistic, and historic interest The division of interest into archaeological, architectural, artistic or historic builds on the foundations of English Heritage s Conservation Principles (2008) 2. 'Conservation Principles' sets out a method for thinking systematically and consistently about the heritage values that can be ascribed to a place. The definition of Significance in the NPPF shows how value is derived from historic interest. 'Conservation Principles' shows how that value can be grouped into four categories: Evidential value: the potential of a place to yield evidence about past human activity. Historical value: the ways in which past people, events and aspects of life can be connected through a place to the present - it tends to be illustrative or associative. Aesthetic value: the ways in which people draw sensory and intellectual stimulation from a place. Communal value: the meanings of a place for the people who relate to it, or for whom it figures in their collective experience or memory I note that the definition of Evidential Value corresponds well to the definition of Archaeological Interest in Annex 2 of the NPPF. It is important to note therefore that any heritage asset can have archaeological interest and not just buried below ground archaeological features. 2 The Historic England website holds the current version of this document which states although this document refers to English Heritage, it is still the Commission s current advice and guidance and will in due course be re-branded as Historic England. [last accessed 22 nd October 2015] Heritage Statement: Pond Farm, London Road, Newington, Kent October

11 4.11. Artistic Interest, Architectural Interest and Historic Interest are not defined in the NPPF. However, I would contend that Artistic Interest corresponds well to the definition of aesthetic value above and that both historical interest and architectural interest have a strong relationship with the concept of historical value. This provides a useful framework for considering what is meant by the definitions of the four types of heritage interest as defined in the NPPF (see Figure 2). Figure 2: Definitions of types of heritage interest drawn from National Planning Policy and Historic England Guidance Type of Heritage Interest Archaeological Interest Historic Interest Architectural Interest Artistic Interest Definition There will be archaeological interest in a heritage asset if it holds, or potentially may hold, evidence of past human activity worthy of expert investigation at some point. Heritage assets with archaeological interest are the primary source of evidence about the substance and evolution of places, and of the people and cultures that made them. (as defined in Annex 2 of the NPPF) There will be historic interest in a heritage asset if it holds, or may potentially hold, evidence of the ways in which past people, events and aspects of life can be connected through a place to the present. This could be either illustrative or associative. Illustrative interest is defined as the perception of a place as a link between past and present people while associative interest relates to the association with a notable family, person, event, or movement which gives historical interest a particular resonance. (after Conservation Principles 2008) There will be architectural interest in a heritage asset if it holds, or may potentially hold, evidence of the ways in which past people, events and aspects of life can be connected through architecture to the present. This also could be illustrative or associative. (after Conservation Principles 2008) There will be architectural interest in a heritage asset if it holds, or may potentially hold, evidence of the ways in which people draw sensory and intellectual stimulation from a place (after Conservation Principles 2008) There would be no direct impacts or harm caused to any heritage assets caused by the proposed development. This means that indirect (setting) impacts, and planning policy relating to setting, are of particular relevance to this application The significance of a heritage asset derives not just from the physical fabric of a building but from its setting. The setting of an asset comprises The surroundings in which a heritage asset is experienced. Its extent is not fixed and may change as the asset and its surroundings evolve. Heritage Statement: Pond Farm, London Road, Newington, Kent October

12 Elements of a setting may make a positive or negative contribution to the significance of an asset, may affect the ability to appreciate that significance or may be neutral (Framework Annex 2: Glossary). Paragraph 132 of the framework states that Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting In my analysis of the impact of the proposed development on heritage assets [Section 6] I set out a step by step framework (following Historic England guidance on the setting of heritage assets (2015)) which identifies in each case the overall contribution of setting to a heritage asset s significance (heritage interest or special interest); an assessment of the impact of the proposed development on the heritage asset s significance and the likely magnitude and importance of the likely effects Paragraph 129 of the Framework requires that Local planning authorities should identify and assess the particular significance of any heritage asset that may be affected by a proposal (including by development affecting the setting of a heritage asset) taking account of the available evidence and any necessary expertise. They should take this assessment into account when considering the impact of a proposal on a heritage asset, to avoid or minimise conflict between the heritage asset s conservation and any aspect of the proposal. The onus in placed on local planning authorities to take account of the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation; the positive contribution that conservation of heritage assets can make to sustainable communities including their economic vitality; and the desirability of new development making a positive contribution to local character and distinctiveness. (Framework Paragraph 131) When considering the impact of a proposed development the framework refers less than substantial harm (paragraph 134) and substantial harm (paragraph 133) to heritage assets together with the planning consequences of any such findings. It is therefore the role of the heritage assessor to explain how a judgment has been reached on whether the harm identified is less than substantial or substantial. In my analysis of the impacts of the proposed development below Heritage Statement: Pond Farm, London Road, Newington, Kent October

13 [Section 6] I have set out a clear framework for how I have undertaken this assessment of the degree of harm present, and also identified degrees of harm which are less than substantial [Section 6] I also note that paragraph 65 of the NPPF refers to material harm (paragraph 65) in relation to heritage assets. I consider that this material harm can either be substantial or less than substantial in the context of paragraphs 133 and Paragraph 132 of the framework states that When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset s conservation. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification. The Planning Practice Guidance (March Paragraph: 018 Reference ID: 18a ) states that whether a proposal causes substantial harm will be a judgement for the decision taker, having regard to the circumstance of the case and the policy in the National Planning Policy Framework, but that in general terms substantial harm is a high test The NPPF requires that Local planning authorities should look for opportunities for new development within Conservation Areas and World Heritage Sites and within the setting of heritage assets to enhance or better reveal their significance. Proposals that preserve those elements of the setting that make a positive contribution to or better reveal the significance of the asset should be treated favourably. My heritage assessment discusses where the development makes a positive contribution to the Heritage Assets or better reveals their significance. Pertinent High Court Decisions I am aware of the 2014 Court of Appeal decision on the setting of heritage assets the Barnwell decision (footnote 3.) Most notably the Court of Appeal found that Parliament s intention in enacting Section 66(1) was that decision-makers should give considerable importance and weight to the desirability of preserving the setting of Listed buildings when carrying out the balancing exercise. Even 3 Barnwell Manor Wind Energy Limited and East Northamptonshire District Council, English Heritage, National Trust and Secretary of State for Communities and Local Government [2014] Case No: C1/2013/0843 Heritage Statement: Pond Farm, London Road, Newington, Kent October

14 when the harm to heritage assets is less than substantial, the balancing exercise required by national policy is subject to the statutory duty imposed by Section 66(1) and Section 72. This decision shows that: The decision-maker needs to identify whether any harm is likely to be caused to the Heritage Asset and if so the likely nature of that harm If harm is found to the setting of the Listed buildings, (or to a Conservation Area), then considerable weight needs to be given to the desirability of preserving the setting of those buildings (s.66). In such circumstances, there is a strong rebuttable presumption against the grant of planning permission Less than substantial harm cannot be equated with less than substantial objection to the grant of planning permission The ability of the public to appreciate a heritage asset is one, but by no means the only, factor to be considered when assessing the contribution that setting makes to the significance of a heritage asset The Practice Guidance nowhere suggests that the question of whether harm to setting is substantial can be answered simply by applying the reasonable observer test adopted by the Barnwell Inspector in his decision. Such a test for deciding whether harm to the setting of a designated heritage asset was substantial would preclude virtually all cases, except where a proposal would be in the immediate vicinity of the heritage asset, from amounting to substantial harm The Forge Field High Court decision 4 is also relevant. As set out at paragraph 48, s66 and 72 of the Listed Buildings Act 1990, do not allow a local planning authority to treat the desirability of preserving the settings of Listed Buildings and the character and appearance of Conservation Areas as mere material considerations to which it can simply attach as much weight as it sees fit. When an authority finds that a proposed development would harm the setting of a Listed Building, or the character and appearance of a Conservation Area, it must give that harm considerable importance and weight. Paragraphs further state: This does not mean that an authority's assessment of likely harm to the setting of a Listed building or to a conservation area is other than a matter for its own planning judgment. It does not mean that 4 R (on the application of) Forge Field Society & Others v Sevenoaks DC & Interested Parties [2014] EWHC 1895 (Admin) Heritage Statement: Pond Farm, London Road, Newington, Kent October

15 the weight the authority should give to harm which it considers would be limited or less than substantial must be the same as the weight it might give to harm which would be substantial. But it is to recognize, as the Court of Appeal emphasized in Barnwell, that a finding of harm to the setting of a Listed building or to a conservation area gives rise to a strong presumption against planning permission being granted. The presumption is a statutory one. It is not irrebuttable. It can be outweighed by material considerations powerful enough to do so. But an authority can only properly strike the balance between harm to a heritage asset on the one hand and planning benefits on the other if it is conscious of the statutory presumption in favour of preservation and if it demonstrably applies that presumption to the proposal it is considering.... Even if the harm would be less than substantial, the balancing exercise must not ignore the overarching statutory duty imposed by section 66(1), which properly understood requires considerable weight to be given to the desirability of preserving the setting of all Listed buildings, including Grade II Listed buildings (paragraph 28). The error made by the inspector in Barnwell was that he had not given considerable importance and weight to the desirability of preserving the setting of a Listed building when carrying out the balancing exercise in his decision. He had treated the less than substantial harm to the setting of the Listed building as a less than substantial objection to the grant of planning permission (paragraph 29) I am also aware and have taken account of the High Court Appeal decision of North Norfolk District Council v SSCLG 5 - the North Norfolk decision reiterates that decision-makers considering harm to heritage assets cannot simply treat the desirability of preserving the setting of a Listed building as a mere material consideration to which they can simply attach the weight they see fit in their judgment. The statutory duty [s.66] goes beyond that and treats the preservation of the setting of a Listed building as presumptively desirable. The Court accepted that the effect of the statutory requirement is to impose a duty on decision-makers to give considerable importance and weight or high priority to the desirability of preserving Listed buildings and their settings The decision is also important because it considers the relationship between the section 66(1) duty and paragraphs of the NPPF, which deal with heritage assets. The Court held that the advice in those sections of the NPPF is consistent with section 66(1). However, it is not enough for decisionmakers simply to carry out a straight balancing exercise between harm and public good under paragraph 134 of the NPPF. The Court held that the section 66(1) duty affects the weight to be given to the factors 5 North Norfolk District Council v SSCLG and Mack [2014] EWHC 279 Heritage Statement: Pond Farm, London Road, Newington, Kent October

16 involved, and the decision-maker must ask whether there is justification for overriding the presumption in favour of preservation The December 2015 Mordue Court of Appeal decision 6 has provided further clarification on how a decision maker needs to demonstrate that the statutory test has been applied: Paragraph 134 of the NPPF appears as part of a fasciculus of paragraphs, which lay down an approach which corresponds with the duty in Section 66 (1). Generally a decision maker who works through these paragraphs in accordance with their terms will have complied with the Section 66 (1) duty. When an expert planning inspector refers to a paragraph within that grouping of provisions (as the Inspector referred to paragraph 134 of the NPPF in the Decision Letter in this case) then absent some positive contrary indication in other parts of the text of his reasons - the appropriate inference is that he has taken properly into account all those provisions, not that he has forgotten about all the other paragraphs apart from the specific one he has mentioned. Working through these paragraphs, a decision-maker who had properly directed himself by reference to them would indeed have arrived at the conclusion that the case fell within paragraph 134, as the Inspector did. (Paragraph 28) In other words, where the decision-maker has referred to the relevant paragraphs of the framework (and indeed the relevant Development Plan policies), the appropriate inference is that the statutory duty has been met, unless there is some positive contrary indication Currently Swale Borough Council is unable to demonstrate a five year supply of housing. We must therefore also consider the implications of High Court Judgement [2016] EWHC 421 (Admin) between Forest of Dean District Council and Secretary of State for Communities and Local Government and Gladman Developments Ltd. In the judgement the Hon Mr Justice Coulson considers the application of Paragraph 14 of the NPPF to planning applications in cases where relevant policies are absent, silent or out-of-date. 6 As such it covers those circumstances where a Local Planning Authority cannot demonstrate a five-year land supply. In his ruling the judge quashed a planning application in Newent that had been granted on appeal, because the Inspector had failed to apply the test in paragraph 14 of the NPPF correctly, having only considered the first test, not the 6 Jane Mordue v Secretary of State for Communities and Local Government and others [2015] EWCA Civ Heritage Statement: Pond Farm, London Road, Newington, Kent October

17 second. The case rested on whether the presumption in favour of granting planning permission is disapplied in either of the two separate circumstances identified in the last bullet points of paragraph 14 of the NPPF The relevant part of Paragraph 14 states: For decision-taking this means: approving development proposals that accord with the development plan without delay; and where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless: o any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; o or specific policies in this Framework indicate development should be restricted [FTNT 9] The footnote associated with this second bullet of this test (footnote 9 of the NPPF) states: For example, those policies relating to sites protected under the Birds and Habitats Directives (see paragraph 119) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, Heritage Coast or within a National Park (or the Broads Authority); designated heritage assets; and locations at risk of flooding or coastal erosion The judge clarified four issues of law: Firstly, both these tests need to be applied, not just the first one. Secondly, the list given in Footnote 9 of the NPPF is not an exclusive list of policies for which this test applies. Any policy within the NPPF that suggests that development should be restricted applies. Thirdly, the test applies to policies in the NPPF that would cause development to be restricted, not just policies that would lead to the refusal of a planning application. Heritage Statement: Pond Farm, London Road, Newington, Kent October

18 Furthermore, the policy wording does not explicitly need to use the term restricted for the policy to apply. Finally, the second test is an unweighted test, not a balancing exercise. Therefore, where the development plan is out-of-date or the application is not covered by the policies in it, any NPPF policy that would suggest development should be restricted is sufficient for the presumption in favour of sustainable development to be disapplied and therefore represents a legitimate ground for a planning application to be refused, although it is up to the decision maker whether they do so. Local Plan Policies The relevant Local Plan Heritage Policies in the Swale Borough Local Plan (adopted 2008) is: Policy E14 Development Involving Listed Buildings Proposals, including any change of use, affecting a Listed Building, and/or its setting, will only be permitted if the building's special architectural or historic interest, and its setting, are preserved. Proposals will pay special attention to the: a) design, including scale, materials, situation and detailing; b) appropriateness of the proposed use of the building; and c) desirability of removing unsightly or negative features for restoring or reinstating historic features Swale Borough Council has drafted a new Local Plan: Bearing Fruits 2031 which was submitted for examination in April The following Local Planning Policies and Guidance are relevant to the proposal: Core Policies Policy CP 7 Conserving and enhancing the historic environment The Council will apply national policy in determining applications affecting a heritage asset. Development will preserve or enhance Swale s designated and non-designated heritage assets as the means to sustain the historic environment whilst creating an individual sense of place and special Heritage Statement: Pond Farm, London Road, Newington, Kent October

19 identity for all areas. Proposals shall recognise the interrelationships between heritage and green infrastructure, landscape, regeneration, economic development, transport, infrastructure planning, tourism, town centres and climate change. The Council will support proposals that: preserve and enhance Swale's designated and non-designated heritage assets and their settings in a manner appropriate to their significance and in accordance with Policies DM31-35; respect the integrity of the original design and setting of historic assets, whilst meeting the challenges of a low carbon future. Policy DM 32 Development involving Listed buildings Proposals, including any change of use, affecting a Listed Building, and/or its setting, will only be permitted if the building's special architectural or historic interest, and its setting and any features of special architectural or historic interest which it possesses, are preserved Supplementary Planning Guidance note, Listed Buildings: A Guide for Owners and Occupiers. Section 6 Setting of Listed Buildings of the SPG stipulates that the setting of a Listed building is often an essential feature of its character. This may be its immediate surroundings or may include land some distance from it. Adding that if development takes place near a Listed building, it should have careful regard not only to its existing landscape features, which may contribute to its character and setting, but also any proposed new landscaping. Tree and shrub planting should be typical of that which may have been planted at the time of construction of the building. Swale Borough Council will have special regard to preserving setting when considering planning applications which affect them. 5. Impact of the proposed development on the setting of Heritage Assets - Methodology 5.1. The significance of a heritage asset derives not only from its physical presence and fabric but also its setting. The National Planning Policy Framework defines the setting of a heritage asset as the surroundings in which a heritage asset is experienced. Its extent is not fixed and may change as the asset and its surroundings evolve. Elements of a setting may make a positive or negative contribution to the significance of an asset, may affect the ability to appreciate that significance or may be neutral. Heritage Statement: Pond Farm, London Road, Newington, Kent October

20 5.2. There are no designated heritage assets within the site boundary so setting is the key consideration when considering the impact of the proposed development on heritage assets Historic England has produced a guidance document Historic Environment Good Practice Note 3 The Setting of Heritage Assets (2015). This advocates a five stage approach to assessment. These stages are: Step 1: Identifying the heritage assets affected and their settings Step 2: Assessing whether, how and to what degree settings make a contribution to the significance of the heritage asset(s) Step 3: Assessing the effect of the proposed development on the significance of the asset(s) Step 4: Exploring ways to maximise enhancement and minimise harm Step 5: Making and documenting the decision and monitor outcomes (Note this stage is only relevant after permission has been granted and work on the scheme finished) The guidance also provides useful (non-exhaustive) checklists of both potential attributes of setting and potential attributes of development which may affect that setting In the same guidance section 2.3 highlights the importance of considering the contribution of views to the significance of a heritage asset. The setting of any heritage asset is likely to include a variety of views of, across, or including that asset, and views of the surroundings from or through the asset The Historic England guidance on assessing heritage significance within views (Seeing History within the View 2011) has also been considered. The qualitative assessment of heritage significance within views is divided into two phases: Phase A baseline analysis: defines and analyses heritage significance within a view. Phase B assessment: assesses the potential impact of a specific development proposal on heritage significance within a view, as analysed in Phase A. Assessment Framework for documenting the effect of the proposed development Heritage Statement: Pond Farm, London Road, Newington, Kent October

21 5.7. In determining the effect of the proposed development on the significance of heritage assets, the heritage assessor needs to provide justifications as to the level of impact identified and how this relates to the relevant Statutory and Policy tests To aid the assessment the following descriptive thresholds have been used to describe the effect of the proposed development on the significance of a heritage asset This approach is particularly useful in both cases where paragraph 133 and paragraph 134 of the NPPF applies relating to a harm which is either substantial harm and less than substantial as it can be used to help identify how much weight should be given to each impact identified and the cumulative effect of any material harm to each heritage assets or groups of heritage assets. Figure Two: Descriptive Thresholds for documenting effect Effect Extreme Comprehensive changes to asset or setting Major changes to most of the key significant features of an heritage asset and comprehensive change to the significant components of its setting Moderate - changes to many of the key significant features of an heritage asset and considerable change to the significant components of its setting Minor slight changes to the key significant features of an heritage asset and slight change to the significant components of its setting Negligible very minor changes Standard Method of Assessment My own standard method of assessment is to consider every heritage asset and its setting within 2km of the development site and where an impact is identified then a detailed five part assessment of 7 These are based on tables 5.3, 6.3 and 7.3 of Volume 11 Environmental Assessment Section 3 Environmental Topics Part 2 Cultural Heritage in the Design Manual for Roads and Bridges (August 2007) and which are also included in Historic England s document Assessing the Effect of Road Schemes on Historic Landscape Character which is still current guidance [last accessed December 2015] Heritage Statement: Pond Farm, London Road, Newington, Kent October

22 the impact on the setting of that asset is undertaken following the Historic England Good Practice Advice note 3 (2015). Where an impact is not present a shorter summary is provided for each heritage asset. Where a heritage asset is part of a group of assets these are considered together and the cumulative impact on the individual settings of the assets is also discussed. Other heritage assets between 2km and 5km are also considered when a visual impact is noted during the site visit; when a visual link is identified in a ZTV; when there is a clear historical, functional or other link to the site; when it is raised in pre application discussions with Historic England and the LPA; or when of particular national significance (for example Grade I or II* Listed Buildings). However, following Historic England guidance, 5km is not a fixed distance and other assets further away may be considered where appropriate I have reviewed the CgMs Heritage Statement (November 2015) and I undertook my own field visit on the 27 th September to assess the visual relationship(s) between the heritage assets relating to the proposed development and the surrounding area I concur with the CgMs statement that the relevant heritage assets which have the potential to be impacted by the Scheme are the Grade II Listed Pond Farmhouse and its associated undesignated farm buildings. I also note that the CgMs statement follows the guidance provided by Historic England in the Historic Environment Good Practice Advice in Planning: Note 3 (GPA3): The Setting of Heritage Assets, but I found its analysis in relation to the Grade II Listed Building of Pond Farmhouse and its associated farm buildings short and cursory. 6. Impact of the proposed development on the setting of Heritage Assets Analysis Grade II Listed Pond Farmhouse ( ) and undesignated farm buildings associated with the farmstead 6.1. Step 1: Identifying the heritage assets affected and their setting Pond Farmhouse is a Grade II Listed early 19 th century timber framed and rendered farmhouse with a plain tiled roof. It consists of two storeys with hipped roof (see Appendix to CGMS Heritage Statement 2015 for Listing Description). Heritage Statement: Pond Farm, London Road, Newington, Kent October

23 It is Listed due to the architectural interest of its construction and the regular configuration of its northern façade (facing London Road) and the weather board detail of its construction on the right return It is also Listed due to its historic interest as an example of early 19 th century vernacular architecture related to agricultural life in Kent at this time To the immediate south of the farmhouse is a group of undesignated heritage assets consisting of a range of farm buildings. These consist of a regular courtyard L-plan design and together with the Farmhouse are described in the CgMs Heritage Assessment (2015) as a typical Kent Farmstead The buildings reached their current configuration in the mid-19 th century, and retain much of the original elements including wall and roof construction which adds to their architectural interest. Although currently not in use and in poor condition, the functional historical agricultural relationship with Pond Farmhouse can still be readily appreciated adding to their historic interest The farmhouse and farm buildings are now in separate land ownership, despite this they remain visually and spatially interconnected due to the open ground to the rear of the Farmhouse, representing one former agricultural working area. A second courtyard area also survives to the south of the first range of farm buildings. This historical relationship can be appreciated from London Road looking south due to the open ground to the west of the Farmhouse which allows views through to the farm buildings The farmhouse and farm buildings clearly form a group of heritage assets The immediate setting of Pond Farmhouse is formed of its garden to the east, and its associated undesignated farm buildings to the south. It is situated facing onto the south side of London Road which has been an important arterial route since Roman times, with increasing importance since the Medieval period, forming the main historic thoroughfare between London and Canterbury. Therefore the building s formal front with sashed windows faces on to the road where it would make the most impression on passers-by The farmhouse historically formed a western outlier to the settlement of Newington (OS 6 inch map of 1869 in Appendix A), with only one other building to the northeast on London Road, it was Heritage Statement: Pond Farm, London Road, Newington, Kent October

24 visually separated from the settlement along London Road and also formally separated by a series of fields and orchards on its southern and south-eastern side Today the modern boundary of the settlement of Newington abuts the eastern boundary of the appeal site. The modern setting of Pond Farmhouse is formed by the buildings on the north side of London Road between the road and the railway, with open farmland rising beyond the railway line on Mill Hill. It is also formed by the buildings adjacent to the east on the south side of London Road The wider setting of the farmhouse is formed by three fields on its southern side which are formed of mature hedged boundaries [the third field to the west is outside of the appeal site boundary]. The central field is used today as a commercial orchard [western field within the proposed site} and the eastern field [eastern field within the proposed site] for fruit cultivation. There is therefore a continuity of land use from the 19 th century albeit using modern commercial fruit production techniques as opposed to reflecting a surviving traditional orchard where the trees or bushes would be more widely spaced. These fields abut Pond Farmhouse and surround the undesignated farm buildings on their west, east and southern side. The southern side of the farm buildings has a hedged boundary with mature trees. Beyond the fields to the west is a modern industrial estate. Figure 2 of the CGMS Heritage Statement provides an aerial view of the site where all of these features can be identified in plan There are views into the area surrounding Pond Farmhouse from the north side of London Road from which the relationship with the farm buildings can be appreciated. Views out from the farmhouse and farm buildings are restricted although there are views into the fields to the south and southwest. There are glimpsed views across to the roof of Pond Farmhouse from within the western boundary of the middle field (forming the western boundary of the appeal site). These views are further restricted by the current orchard cultivation. Views from the south towards the farm buildings with the farmhouse beyond are restricted by the boundary with trees on the south side of the farm buildings but in winter there would be views through this boundary to the outbuildings and to the roof of the farmhouse. There are also clear views from the south eastern corner of the site across the eastern field towards the farmhouse and its related outbuildings (see Appendix C Photograph 1) There are also views south towards the farmhouse and the three fields from the public right of way on Mill Hill to the north. These are described in paragraph 5.14 of Swale Borough Councils Landscape and Visual Review (March 2016) as Heritage Statement: Pond Farm, London Road, Newington, Kent October

25 an elevated overlooking view in which a large proportion of the development will be visible, also bearing in mind that existing strip residential development west of Pond Farm along London Road, on the north side, is mainly one and a half or one storey so does not already markedly block or intrude on view of the site Step 2: Assessing whether, how and to what degree these settings make a contribution to the significance of the heritage assets(s) The most significant aspects of the designated Farmhouse, and related undesignated outbuildings will be those which contribute to its heritage interest. The first significant aspect will be the architectural interest derived from their construction and their historic interest as a group forming an example of early 19 th century vernacular architecture related to agricultural life in Kent at this time. The fact that this farmhouse is nationally designated shows that it is of more than ordinary architectural interest, in contrast to the findings of the CgMs heritage statement. There is also a clear association between the farmhouse and the outbuildings to the south The location of the Farmhouse abutting and facing onto London Road has historic and architectural interest informing the location and design of the farmhouse The wider heritage interest of the farmhouse and outbuildings setting will be derived from where there is a clear historical functional link between the farmsteads and the land surrounding them. The 1840 Tithe Map of Newington (CgMs Figure 6) shows the plots of land which surrounded the farmstead at this date. A tithe map is fundamentally a taxation document which has an associated apportionment which records information on the owner, occupier of each numbered plot of land with a written description (see Appendix B for extract from the Apportionment document) as well as information on monies due. Therefore we know the occupier of Pond Farmhouse in 1840 was James Grace and that he also rented plot 322 to the immediate east of the farmhouse as a garden. The tithe map also tells us the plots of land he rented from various landowners around the farmhouse. This includes: Plot 328 to the immediate south of the farmstead called Pigeon House Orchard on which the outlying L-shaped courtyard range of outbuildings would be constructed in the mid-19 th century. Plot 327 to the south of the historic outbuildings called Back Orchard [this incorporates the eastern half of the appeal site] Heritage Statement: Pond Farm, London Road, Newington, Kent October

26 Plot 319 to the west of the farmhouse called Borden Council and Mill Hills, in arable cultivation in 1840 [this incorporates the western half of the appeal site] Plot 301 to the north side of London Road which runs up onto Mill Hill also in arable cultivation The fields to the south of the farmstead therefore have an important historic interest relating to the historic functional use of Pond Farmhouse and its related farm buildings as an historic agricultural dwelling. This historic connection can be further appreciated by the ongoing agricultural use of these fields as commercial orchards. The importance of these fields in providing this historical link has increased as settlement has encroached along London Road in the 20 th century and houses have been built on the western side of Newington in the 1960s These fields provide the last physical historic separation between the farmstead and the modern setting of Newington. The glimpsed views towards the farmstead and outbuildings further serve to strengthen this connection as does the views from the southeast corner of the site, and views towards the farmstead and fields from Mill Hill to the north all of which have historic interest. The views from Mill Hill are particularly significant as they allow the relationship between the farmstead and its surrounding fields to be appreciated and the functional historic agricultural relationship to be likewise appreciated. These therefore have a strong historic interest The boundary running down the centre of the appeal site, and the boundary on the eastern side of appeal site are important historic boundaries relating to the configuration of fields contemporary with the early 19 th century designated Pond Farmhouse and the undesignated mid-19 th century range of outbuildings and therefore have historic and archaeological interest Step 3: Assessing the effect of the proposed development on the significance of the asset(s) The proposed development will have no direct impact on the Designated Heritage Assets. The key consideration therefore is the extent of the impact on the components of the setting of the heritage assets which relates to its significance The construction of houses in close proximity of Pond Farmhouse and its related outbuildings would change the character of the land to the south of the Listed farmhouse and undesignated farm buildings from agricultural fields to residential houses. The CgMs Heritage Statement refers to how the construction of a residential development to the south of the Farmstead would alter the wider rural Heritage Statement: Pond Farm, London Road, Newington, Kent October

27 setting of the Farmhouse and the outbuildings (pg36). The removal of this land would therefore have a major effect causing an adverse impact by removing the historic interest these fields have relating to the historic functional use of Pond Farmhouse and its related farm buildings as an historic agricultural dwelling and farmstead The last physical historic separation between the farmstead and the modern setting of Newington would also be lost and the proposed houses in their scale, dimension and massing would have a major effect impacting adversely on the heritage assets The glimpsed views towards the farmstead and outbuildings would also be impacted upon, as would be the more open views from within the eastern half of the site (see Appendix C Figure One) There would be major impact on the views towards the farmstead and fields from Mill Hill to the north. The relationship between the farmstead and the surviving historic fieldscapes surrounding it Step 4: Explore ways to maximise enhancement and minimise harm The proposed community orchard immediate to the southeast of the Farmhouse would provide a link to past historical use of the site, but would not due to its small size compensate for the loss of the rural and agricultural setting of the farmhouse and its related farm buildings Proposed screening would help prevent any visual harm but would not prevent the loss of agricultural land related to the farmstead or prevent harm to the significant views towards the farmstead and fields from Mill Hill. Other heritage assets within the vicinity of the proposed development 6.5. Wyvern Heritage considered all the Heritage Assets within 2km of the site and found that there is no visual relationships between any of these heritage assets and the site, and that the development site lies outside the setting of each of these assets. Heritage Statement: Pond Farm, London Road, Newington, Kent October

28 7. Policy and Statutory Implications of the Heritage Assessment 7.1. My heritage assessment, Section 6, looked at the impact of the development on the setting of the Grade II Listed Pond Farmhouse and associated undesignated farm buildings to its south It concluded that there would be a major effect on several key elements of the settings of these Listed buildings which relates to their significance leading to adverse material harm: The permanent removal of an area of rural agricultural land in orchard cultivation forming a key element of the setting this heritage asset; The loss of last physical historic separation between the farmstead and the modern settlement edge of Newington; Impact on key views from within the site and from Mill Hill south towards the site; and The cumulative effects on the group of heritage assets As explained above, the separate test in Section 66 of the Planning (Listed Buildings and Conservation Area Act 1990) applies, requiring the decision-maker to pay special regard to the desirability of preserving the buildings or their settings or any features of special architectural or historic interest which they possess. For the reasons set out above, the proposed development would fail to preserve the settings of the Listed Building In terms of the NPPF, I consider the harm identified to both the designated and undesignated heritage assets to be material, but to be less than substantial, within the meaning of paragraph 134. There would be no direct harm to either the Listed Grade II Farmhouse or the associated undesignated heritage assets forming the related farm buildings but there would be a major effect on significant components of its setting leading to material adverse harm Following the Report to the Planning committee (28 th April 2016) which stated the Council s policies regarding the provision of housing are considered out-of-date because the Council cannot demonstrate a 5 year supply of housing land as set out in paragraph 49 of the NPPF. Therefore, the application must be considered in the context of the presumption in favour of sustainable development as required by paragraph 14 of the NPPF. This becomes an appeal where the recent High Court Judgement Heritage Statement: Pond Farm, London Road, Newington, Kent October

29 [2016] EWHC 421 (Admin) between Forest of Dean District Council and Secretary of State for Communities and Local Government and Gladman Developments Ltd is of relevance The result of these judgements is that where the development plan is out-of-date or the application is not covered by the policies in it, any NPPF policy that would suggest development should be restricted is sufficient for the presumption in favour of sustainable development to be disapplied and therefore represents a legitimate ground for a planning application to be refused, although it is up to the decision maker whether they do so The impact on setting of the Listed Building of Pond Farmhouse as identified in this heritage assessment would therefore represent such a legitimate grounds for refusal If the Local Plan Policies are a material consideration, then the proposed development also contravenes saved Policy E14 of the Swale Borough Local Plan (adopted 2008) and Policy DM32 of the emerging new local plan, although the weight given to the emerging policy will be a matter for the decision taker. Heritage Statement: Pond Farm, London Road, Newington, Kent October

30 Appendices A Additional Historic Maps Map One: 1869 Ordnance Survey 6 Map Heritage Statement: Pond Farm, London Road, Newington, Kent October Page

31 B. Extract from Newton Tithe Apportionment 1840 Owner Occupier No. Description Cultivation Quantities Sir Edmund Filmer Bart. James Grace 301 Pond House Field & Mill Hills Arable Sir Edmund Filmer Bart. James Grace 319 Borden Couch & Mill Hills Arable Sir Edmund Filmer Bart. James Grace 326 Playstool Field Arable Sir Edmund Filmer Bart. James Grace 327 Back Orchard Orchard Sir Edmund Filmer Bart. James Grace 328 Pigeon House Orchard Orchard ½ Overseers of Newington James Grace Garden Heritage Statement: Pond Farm, London Road, Newington, Kent October

32 C. Additional Photographs Heritage Statement: Pond Farm, London Road, Newington, Kent October

33 Photo One: View from south east corner of the site looking North West across to Listed Pond Farmhouse (centre ground) and undesignated related historic farm buildings Heritage Statement: Pond Farm, London Road, Newington, Kent October