Planning Case Study 162

Planning application 17/00798
A pre-application desk-based assessment was produced in January 2017.

The planning application for the hospice was submitted in March 2017.

A letter in April 2017 to the LPA from its archaeological advisors noted that north-west half of the 3.2ha site had previously been extracted for gravel and had no remaining archaeological potential. The letter therefore recommended a pre-commencement condition, if permission were to be granted, applying to the south-east half of the development site which still had archaeological potential. The condition required an archaeological field evaluation, the results of this evaluation being used to inform an archaeological mitigation strategy.

The evaluation was undertaken in January 2018 and reported on in March 2018.

The granting of full permission for the application took place on 28th March 2018 following completion of a S106 agreement and receipt of a letter from the Secretary of State which said that it had been decided not to call the application in.

Subsequent advice to the LPA from its archaeological advisors on 16th May 2018 said that the evaluation had revealed evidence of prehistoric (Bronze Age and Iron Age) activity on a part of the site that probably represented occupation on an island in the River Thames. It assessed this evidence as particularly noteworthy and important, and in view of the fact that the archaeology would be destroyed by the development, it stated that the remains would require further archaeological investigation in advance of the commencement of the development.

Application 18/02013, made by the developer to remove the archaeological condition attached to planning permission 17/00798
An application was made by the developer to the LPA on 9th July 2018 to remove the archaeological condition (no. 23) attached to planning permission 17/00798. An initial decision (made by the case officer under delegated powers) to approve this application on 12th July was subsequently delayed by the LPA’s decision to call in the planning application for decision by the Planning Committee (a standard procedure if there are any significant objections or any Councillor requests it). Objections were received from the CBA and the Parish Council. The application was however approved at the Development Control Panel meeting on 28th August and the permission was issued on 12th September.

The following is an extract from planning case officer’s report to the Development Control Panel which supported the application (see below for LPA Development Control Panel report reference):

1. SUMMARY

1.1 Planning permission for a new 28 bedroom hospice and out-patient unit was granted in March of this year, subject to planning conditions. Condition 23 required an archaeological field evaluation to be undertaken, which was carried out and found a number of archaeological remains. Based on the findings, Berkshire Archaeology advised that the application site was considered to be on an area of land with archaeological importance and recommended further investigations of the site to be undertaken. The minimum cost of these investigations would be £30000.

1.2 The applicant, a local charity, has advised that the new hospice will be funded entirely by voluntary donations and it therefore has to be able to justify every penny it spends. In this case, it does not consider that it can justify this particular further expense to its supporters, as not only is it a considerable sum that could escalate further, but this is money that could be spent on providing essential care to its patients and their families. It should be noted that, with the exception of condition 23, the applicant has submitted comprehensive details in relation to the other pre-commencement conditions (of which there were 11), that have all been approved.

1.3 Having regard to the advice contained in the NPPF, it is considered that while the proposal would have less than substantial harm to the significance of the heritage asset, (the area of archaeological importance), the removal of condition 23 from application 17/00798 is outweighed by the public benefits of the scheme as a whole and the particular circumstances of the applicant.

Observations on the report and its use of NPPF policies by Stewart Bryant:

Paragraph 1.3 above (highlighted in bold) seems to represent a misunderstanding of the status of the identified heritage assets and of NPPF policy. The case officer appeared to regard the notification of the archaeological site to the LPA as conferring designated (Scheduled Monument or Area of Archaeological Importance) status on the site. Because of this, the substance of the NPPF 2019 policies 194-6 have been used as policy justification for removing the condition.

These NPPF policies concern the degree of harm which may be caused to (nationally) designated heritage assets affected by proposed development. However, as the heritage assets on the site were not designated (nor was there any reference to their being nationally important and potentially falling under the definition of NPPF paragraph 194, footnote 63), the relevant NPPF policies that should have been used to support the case are paragraphs 197 and 199 (see below for the wording of the latter).

While it seems unlikely - given the financial issue referenced in the report - that consideration of the correct policies would have materially altered the advice of the case officer and the subsequent decision of the Committee, the application of the incorrect NPPF policies means that the Committee did not have the opportunity to consider the correct NPPF policy case for retaining the condition. This policy case derives from the wording of NPPF 2019, paragraph 199:

"Local planning authorities should require developers to record and advance understanding of the significance of any heritage assets to be lost (wholly or in part) in a manner proportionate to their importance and the impact, and to make this evidence (and any archive generated) publicly accessible"

In this instance, the fact that non-designated heritage assets with archaeological and historic interest of at least local significance were known to be affected by the development means that their total destruction without record was not a proportionate response and thereby contrary to the NPPF paragraph 199.