Heritage refusals and the statutory duty on appeal

An appeal against a heritage refusal is won or lost on the heritage appeal statutory duty, and specifically on whether the inspector is satisfied that considerable importance and weight has been given to the desirability of preserving the asset before any balance is struck. Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires the decision maker to have special regard to the desirability of preserving a listed building, its setting and any features of special architectural or historic interest. Section 72(1) requires special attention to be paid to the desirability of preserving or enhancing the character or appearance of a conservation area. Neither section is a tie-breaker applied at the end. Both colour the whole assessment.

The practical consequence, settled by the Court of Appeal in Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council [2014] EWCA Civ 137, is that harm to a designated asset creates a strong presumption against permission which the applicant has to displace with something weighty.

How the duty bites on an appeal

A refusal on heritage grounds usually gives you a short reason citing local plan policy and the Framework. The appeal statement has to go further than answering that reason, because the inspector applies the statutory duty whether or not either party argues it well.

Two points from the case law are worth stating openly in the statement. In Forge Field Society v Sevenoaks District Council [2014] EWHC 1895 (Admin) the court confirmed that a finding of less than substantial harm does not translate into a less than substantial planning objection. And in Mordue v Secretary of State for Communities and Local Government [2015] EWCA Civ 1243 the Court of Appeal accepted that a decision maker who works through the Framework's heritage balance properly will normally have discharged the section 66 duty at the same time, so you do not need a separate paragraph of ritual words. What you do need is a balance that visibly starts from the presumption.

Where the refusal itself shows no sign that the duty was applied, say so, and say what difference it would have made. Where the council applied it and reached a different conclusion from yours, attack the harm finding rather than the law.

Pinning down the level of harm

The single most productive part of most heritage appeals is the characterisation of harm. Councils and applicants routinely talk past each other because neither has said, in terms, what the significance of the asset consists of and which element of it the proposal affects.

Work in the order Historic England's guidance sets out. Identify the heritage assets affected, including any the council missed. Describe the significance of each by reference to its architectural, historic, artistic and archaeological interest. Then state what contribution the setting makes to that significance, which is a separate question from whether the asset is visible from the site. Only then assess the effect.

Be specific about level. Substantial harm is a high test and it is rarely met by anything short of losing the asset or a defining part of it. Less than substantial harm covers a wide band, and an inspector will respond to an applicant who says where in that band the proposal sits and why. A Heritage Statement that concludes "minor harm at the lower end of less than substantial, arising from the partial interruption of an oblique view from the churchyard path" gives the inspector something to work with. One that concludes "no harm" when a conservation officer has identified harm simply loses credibility.

Where the effect is on a wider townscape or landscape composition, a Townscape and Visual Impact Assessment with agreed viewpoints does more than adjectives will.

Public benefits and the evidence behind them

Public benefits are the currency on the other side of the balance. They must be public, they must be delivered by the scheme, and they must be evidenced.

The ones that carry weight in practice are repair and long-term maintenance of the asset itself, securing an optimum viable use for a building at risk, removal of harmful later additions, restoration of lost features, public access where none existed, and housing delivery where the authority cannot demonstrate a five year supply. Design quality is a benefit only where it is exceptional and demonstrated.

Evidence each one. A schedule of repair works with a costed specification beats an assertion that the scheme will secure the building's future. Where the argument is that the enabling development funds the repair, expect the inspector to want the arithmetic, and expect the council to test it. Where the benefit is heritage gain, a recording exercise to Historic England's levels can be part of the package, and a Historic Building Recording brief agreed in advance with the county archaeologist or conservation officer looks far better than an offer made late.

Avoid inflating benefits. An inspector who finds one benefit overstated tends to discount the rest.

Where the balance is actually struck

The Framework's historic environment policies require great weight to be given to the conservation of a designated asset, with that weight increasing in line with the importance of the asset, and they set the harm against public benefits test. The current edition was published on 17 August 2026 and is organised by policy code rather than paragraph number, so check the wording and the code on gov.uk before you cite it, because copies in circulation still use the December 2024 numbering.

In the statement, set the balance out as a balance. State the harm and its level. State the benefits and the weight you say each carries. Then explain why the benefits outweigh the harm, keeping the statutory presumption visible in the reasoning. Do not bury the balance in a concluding sentence.

Two traps recur. The first is treating compliance with a development plan policy as a substitute for the balance, when the plan policy may be more permissive than the statute allows. The second is running the tilted balance in a way that ignores the heritage constraint, when the Framework's presumption does not apply where policies protecting designated assets provide a clear reason for refusal.

Consultee positions and the weight they get

Historic England's formal advice on a Grade I or II* asset carries real weight and needs answering on its own terms. Advice from a conservation officer employed by the council carries weight too, though it is not a statutory consultee response, and it can be tested on its reasoning. Local amenity society representations are material and are frequently better informed on local history than either party.

Where a consultee objects, do not simply disagree. Identify the specific point of significance relied on, agree what can be agreed, and explain why the residual point does not carry the weight claimed. Inspectors notice when an appellant has engaged with the substance and when the response is boilerplate.

Where a consultee has not objected, say so plainly and once. Silence from Historic England on a Grade II asset is not endorsement, because the consultation thresholds mean they may never have been asked.

Reading appeal decisions without overreading them

Appeal decisions are indicative of how inspectors have approached similar issues rather than binding precedent. They are useful for method, for the way an inspector characterised setting, or for the weight given to a particular benefit. They are not useful as a tally of outcomes.

Cite sparingly and accurately. Quote the reasoning rather than the result, give the appeal reference and the date, and be honest about the differences between that site and yours. An inspector who spots a mischaracterised decision will discount the whole section. Our note on reading a refusal notice and turning it into a plan covers how to work back from the reasons given to the evidence you need.

Structuring the statement of case

Order matters more than length. A heritage appeal statement that works usually runs: the appeal site and its designations, the planning history, the statutory framework and the duty, significance of each affected asset, the proposal and the effect on that significance, the level of harm and its position in the band, public benefits with their evidence, the balance, other matters, and the conditions offered.

Offer conditions early. Materials approval, a schedule of repairs tied to a phased programme, removal of permitted development rights where domestic clutter would harm a setting, and a recording condition can all reduce harm and are worth putting on the table rather than waiting to be asked. A well-drafted Planning Statement at application stage means most of this material already exists by the time you appeal.

PlanScope can draft the heritage narrative and the balance section against the policy framework, flagging where site-specific facts such as the list entry description or the repair schedule are still missing. It is a starting point for a conservation specialist to develop rather than a finished appeal case. This is general guidance rather than legal advice, so check the position with your local planning authority or a qualified professional before relying on it.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.