Heritage assets, demolition and future benefits

The High Court has interpreted paragraph 196 of the National Planning Policy Framework on the protection of heritage assets. Matthew Fraser explains the outcome.

On 27 August 2019, Kerr J handed down judgment in Tower Hamlets v SSHCLG [2019] EWHC 2219 (Admin), a case concerning the proper interpretation of paragraph 196 of the National Planning Policy Framework (“NPPF”).

This paragraph provides that, where the harm caused by a development proposal to the significance of a heritage asset will be less than substantial, that harm “should be weighed against the public benefits of the proposal including, where appropriate, securing its optimum viable use”.

This case concerned the unlawful demolition of buildings in the Coldharbour Conservation Area in Tower Hamlets. The Council took enforcement action requiring the buildings to be re-built in facsimile. The owners of the land successfully appealed on the ground that planning permission should be granted for the demolition. The Inspector interpreted paragraph 196 of the NPPF as permitting the benefits of likely future re-development to be taken into account in the balancing exercise under that paragraph.

The council challenged this decision by way of joined applications under sections 288 and 289 of the Town and Country Planning Act 1990. The central ground was that paragraph 196 of the NPPF is confined to balancing the benefits which actually arise from the proposal in question (in this case, demolition), rather than some future separate and undefined proposal for re-development. The challenge was also brought on grounds of irrationality and inadequate reasoning.

Despite finding “considerable force” in the council’s submissions, Kerr J ultimately concluded that NPPF paragraph 196 was not so restricted, and could extend to future benefits likely to arise from the site becoming vacant.

Kerr J has, however, granted the council permission to appeal to the Court of Appeal.

Matthew Fraser is a barrister at Landmark Chambers. Together with Matthew Reed QC, he acted for the London Borough of Tower Hamlets at the substantive hearing before Kerr J.

Reuben Taylor QC and Hannah Gibbs, also of Landmark Chambers, represented the Council in the High Court proceedings until permission was granted, but were unavailable for the substantive hearing. Reuben Taylor QC also acted for the Council at the inquiry.