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20/04/2017

Legal landscape: Holding out for heritage in Bath

Bath

New proposals for Bath Quays South could threaten the city’s World Heritage Status. Follow Stonehenge and bring in UNESCO, say Jason Tann and Christine Hereward

Bath is one of 29 UNESCO World Heritage Sites in the UK and uniquely the only entire city accorded this status. Such designation gives rise to additional issues for Bath and North East Somerset Council to consider in planning policy and in determining applications. Equally, developers need to make sure they address the designation in applications, a requirement that also applies to schemes located outside the World Heritage Site itself if the proposed development may impact upon it.

This has been brought to the fore with proposals for Bath Quays South, a mixed residential and commercial scheme on a council-owned site comprising 63 flats and 85,000 square feet of commercial space to be located in listed Victorian industrial premises and some new buildings. The site is not considered to make a contribution to the outstanding universal value of the World Heritage Site and the scheme has generally been well received. However, at issue is the impact of certain elements of the scheme on the setting of the World Heritage Site. These were of sufficient concern for Historic England to suggest that if the original scheme were to be implemented it could cause significant harm to Bath, the ultimate consequence being the loss of its UNESCO designation.

There is no directly enforceable legal obligation on local planning authorities to comply with UNESCO requirements. However, they are required to consider the impact of development on heritage assets. The NPPF provides that it should be wholly exceptional for any development that could cause substantial harm to a heritage asset of the highest significance, such as a World Heritage Site, to be permitted.

“There is no directly enforceable legal obligation on local planning authorities to comply with UNESCO requirements. However…”

Bath’s planning policy (culminating in the emerging World Heritage Site setting supplementary planning document) puts the protection of its UNESCO status centre stage. Decisions affecting the setting of the World Heritage Site must be made with regard to the site’s outstanding universal value, integrity, authenticity and significance. Such an assessment could form part of an environmental impact assessment if required. As a further safeguard, an objection by Historic England to an application would require referral to the secretary of state, who could call it in.

Bath Quays South is pending determination and was referred to the secretary of state in February. Following a reduction in the height of the office element of the scheme and a change to the proposed materials, Historic England is no longer objecting to those elements. But it is still concerned about the potential impact of such “massive” development on the setting of Georgian Bath – a key attribute of the outstanding universal value in the designation. 

There had been calls to involve UNESCO at an earlier stage to assist with producing a scheme that would not impact on the World Heritage Site. As a signatory to the World Heritage Convention, the UK is subject to the operational guidelines. Paragraph 172 of these requires a notification to UNESCO if it is intended to undertake or authorise major restorations or new constructions that may affect the outstanding universal value of a World Heritage Site. 

"A salutary lesson is the example of Dresden, which lost its World Heritage status because of a four-lane road bridge across the Dresden Elbe Valley"

Notifications under paragraph 172 are often made late on in the process and can lead to a site being put on UNESCO’s danger list if threatened by a project. The approach that was followed for Stonehenge is to be commended; in that case, UNESCO was brought on board at the start of the process to assist in finding an appropriate solution to improving the A303.

A salutary lesson is the example of Dresden, which lost its World Heritage status in 2009 because of construction of a four-lane road bridge across the Dresden Elbe Valley. That, though, would seem a far cry from the proposals for Bath Quays South.

It remains to be seen whether the secretary of state will call in the application and enlist the assistance of UNESCO, and whether the council’s development partners will be sent back to the drawing board. 

Jason Tann is head of commercial real estate and Christine Hereward is head of planning at Pemberton Greenish LLP

Photo | iStock

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