Judge refuses “without much enthusiasm” appeal by council over grant of retrospective planning permission

A High Court judge has “without much enthusiasm” refused an appeal by the London Borough of Tower Hamlets against an inspector’s grant of retrospective planning permission to demolish three homes.

In Tower Hamlets v Secretary of State for Housing, Communities And Local Government & Anor [2019] EWHC 2219 (Admin) Mr Justice Kerr said the appeal was an unusual case in which a planning inspector allowed appeals against rebuilding orders made after the unlawful demolition by persons unknown of three unlisted buildings in a conservation area.

He said the inspector effectively reasoned that the demolition had done more good than harm as it would lead to suitable development of the site, which he was confident would soon happen although there was no current proposal to develop it.

Tower Hamlets sought judicial review of the inspector's decision arguing that this proceeded from a misinterpretation of paragraph 196 of the National Planning Policy Framework (NPPF) and was irrational and inadequately reasoned.

The Secretary of State and site owner Angelic Interiors, which is now in administration, countered that the inspector’s reasoning and decision contained no error of law and were rational and adequately reasoned.

Kerr J said: “One of the main areas of debate before me was whether the ‘public benefits of the proposal’ (in the words of NPPF paragraph 196) should extend to likely benefits of new development of a site, facilitated by demolition of buildings on the site, where there is no current application for planning permission to develop the site; or whether those words are restricted to the public benefits of demolishing the buildings, without considering any likely future development.”

The homes dated from the mid-19th century and were considered the last remaining dwellings from the Victorian workers' district of Cubitt Town.

They were brought within a conservation area in 2008 and in 2010 Cubitt Town was defined as falling within a ‘very high growth’ area in the council's core strategy.

Although the site had no allocation in the emerging local plan, the inspector noted it was suitable for high density housing projects in an area already destined for major housing growth.

The inspector thought the houses were “not the last fragment of a historically significant but now lost development"; bur rather, “three remnant buildings in a sea of modern development” and of  “no great historic significance”,

In June 2016, the council received a complaint that the three houses had been demolished, without planning permission.

Kerr J said the demolition was illegal and may have been a criminal offence. The council served enforcement notices requiring the three houses to be rebuilt in facsimile.

Angelic Interiors did not apply for planning permission to demolish the three houses, nor to construct any new development but did not want to rebuild them and appealed against the notices served.

The judge said he rejected the council's contention that, quite apart from the interpretation of the NPPF provisions, it was irrational to decide that the market would produce suitable and beneficial housing development soon.

“It is true that the inspector could not say what type of development that would be, nor that it would certainly occur; but those were points he was entitled to weigh when considering the public benefit side of the balance,” he said.

“I do not see any want of rationality in reasoning that the site would soon attract developers like flies to a honeypot and that this would probably have led to demolition of the three houses soon anyway.”

He said the issue was one for factual evaluation by the inspector and for his planning judgment, controlled by the threshold of rationality.

“In the end, I accept the submission…that the inspector could have decided that the benefits were too remote, but he did not,” the judge said.

His judgment concluded: “I must dismiss the appeal and the application for statutory review. I do so without much enthusiasm, reminding myself that the enforcement system is remedial not punitive.

“I must put aside the affront to the rule of law and criminal activity seen in this case, as well as the loss of the three houses and their contribution to our historic environment, however limited some may consider it. My discomfort does not make the inspector's decision unlawful and I must and do uphold it.”

Mark Smulian