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Important New Case on Demolition of Buildings in Conservation Areas

Saira Kabir Sheikh QC
John Jolliffe
Ned Westaway

Mr Justice Kerr has handed down judgment in Tower Hamlets v SSHCLG [2019] EWHC 2219 (see judgment here), a case that concerned the unlawful demolition of three unlisted dwellings in the Coldharbour Conservation Area on the Isle of Dogs.  Notwithstanding the poor condition of the buildings prior to the demolition, the local planning authority decided to issue planning enforcement notices requiring their facsimile reconstruction.  On appeal, the Interested Party, Angelic Interiors Limited (in administration) – which was not responsible for the demolition – successfully argued before a planning inspector appointed by the Defendant (“the Inspector”) that retrospective planning permission should be granted for demolition.

The main issue in the High Court was the interpretation of paragraph 196 of the NPPF, in particular whether it permitted a decision-maker “to have regard to non-specific but likely development proposals which, if they were implemented, would deliver a public benefit that could in principle outweigh the harm to the significance of a designated heritage asset” (judgment at [46]).

The Inspector considered that he could have regard to the prospect of redevelopment coming forward, in particular by reference to the planning context, planning history, market conditions and an indicative redevelopment scheme put forward on behalf of the Interested Party.

The Claimant local authority argued that was wrong: “public benefits of the proposal” in paragraph 196 could only mean the benefits of demolition itself.  The Claimant alternatively argued that the Inspector’s decision was irrational and/or inadequately reasoned.

Kerr J dismissed the claim.  On the main ground he referred to Mansell v Tonbridge and Malling BC [2017] EWCA Civ 1314 for the proposition that “planning benefits do not have to be certain to be material” (at [63]).  As a matter of practical reality, he said that the Inspector was entitled to have regard to the indicative scheme and the other circumstantial factors relied upon by the Interested Party.  He said that “the issue seems to be essentially one of remoteness” for “factual evaluation” by the decision-maker (at [67]).  In other words, what are the “public benefits of the proposal” require planning judgement in each case.  The Inspector could have determined that the benefits were too remote, but he did not.

Kerr J dismissed more summarily the Claimant’s alternative grounds on rationality and reasons as adding nothing of substance to the principal argument.

On handing down judgment, Kerr J granted the Claimant permission to appeal his decision to the Court of Appeal. 

John Jolliffe appeared for the Defendant, instructed by the Government Legal Department.

Saira Kabir Sheikh QC and Ned Westaway appeared for the Interested Party, instructed by Jones Day.