Tower Hamlets London Borough Council v Secretary of State for Housing, Communities and Local Government and another – Town and country planning – Enforcement notice – Demolition – Local authority challenging decision of secretary of state allowing appeals against rebuilding orders following unlawful demolition of three unlisted buildings – Whether “public benefits of proposal” restricted to demolition of buildings without considering likely future development – Application and appeals dismissed
The claimant local authority applied for statutory review of, and appealed against, the decision of an inspector appointed by the first defendant secretary of state to allow three appeals against enforcement notices issued by the claimant. The notices required recreation in facsimile of three demolished Victorian workers’ cottages at East Ferry Road, London E14 situated on the second defendant’s land in a conservation area. They were issued following a complaint that the houses had been demolished without planning permission. Experts considered them to be the last remaining dwellings from the Victorian workers’ district on the south eastern side of the Isle of Dogs. The inspector considered that the houses were three remnant buildings in a modern development with no great historic significance because of the substantial modern changes they had undergone.
The claimant asserted that the decision to allow the appeals and quash the enforcement notices proceeded from a misinterpretation of para 196 of the National Planning Policy Framework (NPPF) and was irrational and inadequately reasoned. Under para 196, where a development proposal would lead to less than substantial harm to the significance of a designated heritage asset, the harm should be weighed against the public benefits of the proposal including, where appropriate, securing its optimum viable use. One of the main questions before the court was whether the words “public benefits of the proposal” extended to likely benefits of new development of a site, facilitated by demolition of buildings on the site, where there was no current application for planning permission to develop the site; or whether those words were restricted to the public benefits of demolishing the buildings, without considering any likely future development.
Held: The application and appeals were dismissed.
(1) Under section 174(2)(a) of the Town and Country Planning Act 1990, an appeal might be allowed on the ground that planning permission ought to be granted, but only “in respect of any breach of planning control … constituted by the matters stated in the notice”. Section 177(1)(a) empowered only the grant of planning permission on appeal “in respect of the matters stated in the enforcement notice as constituting a breach of planning control”. In the present case, the matter stated in the notice was only demolition of the three houses. Therefore, the inspector could only allow the appeals under ground (a) by granting planning permission for demolition. He could not have granted planning permission for a scheme for development of the site, even if one had been before him. Permission for any such scheme would have to have been sought from the claimant.
(2) The provisions of the NPPF were statements of national policy, not statute. Their focus tended to be prospective, on what should be permitted to happen in the future, rather than whether there should be retrospective validation of what had happened in the past. The inspector was nonetheless required to treat the relevant NPPF provisions as material considerations. In the context of harm to the significance of a heritage asset, here the conservation area, the balancing exercise that the inspector had to undertake was to balance the harm done by the demolition, not unlawful development such as adaptation of the three houses. It was demolition of the houses, without any replacement, that had to do more good than harm. The public benefit had to come from the site being vacant.
(3) The inspector was not conducting a legal and intellectual exercise. He was considering pragmatically the situation on the ground. The decision in Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2017] PLSCS 174 was authority for the proposition that planning benefits did not have to be certain to be material. The objective likelihood of a benefit being enjoyed in future had to be relevant to weight, even short of certainty.
The circumstantial evidence (of the market, the need for housing and so forth) was still logically probative of the objective likelihood of the benefit being delivered. If the balance of good and harm could change post-demolition, for example by supervening ground contamination or a planning application, there was no reason why the balance could not also change post-demolition by the advent of an uncertain “Mansell” benefit, or by a change in the degree of likelihood (for example, by changes in the market or demand for housing) that it would accrue to the public. The issue was essentially one of remoteness. It was an issue for factual evaluation by the inspector and for his planning judgment, controlled by the threshold of rationality.
(4) The defendant’s interpretation of the heritage provisions in the NPPF was a liberal construction and not the strict pro-heritage construction advocated by the claimant. On balance the defendants’ interpretation was correct, bearing in mind that the NPPF provisions were statements of policy not law and the language of the provisions was not restricted in the way the claimant contended. It was not irrational to reason that the site would soon attract developers; and that that would probably lead to the demolition of the three houses soon anyway. There was circumstantial evidence to support that finding: the prime location, the pressing need for housing in the borough, other housing developments nearby, the indicative “Turner scheme” (prepared by architects to suggest the kind of scheme that would be appropriate for the site) and the intention to sell and strong likelihood of sale of the site for development.
(5) The inspector had properly set out his thinking. The reasoning need not be discursive. It was succinct but clear and full. He explained why he was confident that delivery of the public benefit he anticipated could be left to the market. The claimant could not complain that it did not know why it lost the appeals. The inspector had not erred in law by misinterpreting para 196 of the NPPF, his conclusion was not too speculative to be rational and he had explained his reasoning sufficiently.
Matthew Reed QC and Matthew Fraser (instructed by Tower Hamlets Legal Services) appeared for the claimant; John Jolliffe (instructed by the Government Legal Department) appeared for the first defendant; Saira Kabir Sheikh QC and Ned Westaway (instructed by Jones Day Solicitors) appeared for the second defendant.
Eileen O’Grady, barrister
