The unlisted properties had been demolished in 2016 without conservation area consent first being obtained. The council served several enforcement notices requiring them to be rebuilt and the owners appealed. In determining whether their loss was justified, the inspector (DCS Number 200-008-131) decided that the cottages had no significant architectural or historic merit.
Although finding less than substantial harm to the conservation area, the inspector rejected the council’s claim that, in the absence of a proposal to redevelop the site, its future use was irrelevant in deciding whether public benefits derived from loss of the cottages. In his opinion, the prime site was highly likely to be redeveloped once an appropriate scheme emerged and this was enough to offset loss of the cottages.
The council challenged the decision on the basis that no weight could be afforded to the benefits of any future redevelopment when no planning application had been submitted or approved. It claimed that paragraphs 193, 195 and 196 of the NPPF made clear that, when considering harm to a heritage asset, it is necessary to take into account any "proposed redevelopment" or "development proposal" in determining where the planning balance lies. It maintained that indicative plans submitted by the appellants during the course of the appeals were insufficient to enable the inspector to form a view on the site’s redevelopment potential.
Mr Justice Kerr agreed that, under the terms of the NPPF, the inspector had to conduct a balancing exercise weighing the harm arising from the cottages’ loss against the public benefits. He decided that, superficially, the loss of the buildings and the harm to the conservation area without any countervailing benefits meant the scheme was bound to fail under the terms of the NPPF.
However, the judge noted that Mansell v Tonbridge and Malling Borough Council  confirmed that planning benefits do not have to be certain to be material. In his view, the inspector had adopted a pragmatic approach in paying regard to the fact that the site lay within an area designated for "very high growth" in the adopted core strategy. On this basis, he held that references in the NPPF to securing optimum viable use of a heritage asset encompass its potential to be redeveloped, even under circumstances where no definitive scheme has been submitted for approval. The challenge was dismissed.
London Borough of Tower Hamlets v Secretary of State for Housing, Communities and Local Government and Angelic Interiors Ltd
Date: 27 August 2019
Ref:  EWHC 2219 (Admin)