Holland v Secretary of State for Communities and Local Government

[2014] EWHC 566 (Admin)

Justine Thornton recently acted for the Treasury Solicitor in an application under section 288(1)(b) of the Town and Country Planning Act 1990 and section 63 of the Planning (Listed Buildings & Conservation Areas) Act 1990.

The issue related to the proposed demolition of a single-storey house built in 1970 and the erection of a slightly larger single-storey dwelling within the site boundaries, permission for which had been refused on the grounds that demolition would be harmful to the character and appearance of the conservation area (contrary to policy D17 of the unitary development plan and guidance in the NPPF).

The inspector had previously allowed the appeal having concluded, at [21], that whilst the dwelling had “little group value and very limited individual significance”, the Appeal site “contribute[d] positively to the overall character and appearance of the conservation area”. This was in part due to its “extensive shrub and tree coverage” and in part due to the contribution the dwelling made to “the diverse range of housing”. Notwithstanding that contribution, the inspector considered that any harm resulting from its demolition would be outweighed by the merits of the proposed development given that the proposed new dwelling would also positively contribute to the character and appearance of the conservation area. In doing so, it was clear that the inspector considered that it was the landscaped site, not the existing house itself, which primarily contributed positively to the conservation area's overall character and appearance. The contribution of the house itself was minimal.

It was held that the inspector had not erred in her interpretation or application of the policies/ development plan. She had identified the main issue as the effect on the character and appearance of the conservation area and correctly treated the conservation area as a designated heritage asset because the local authority had identified it as such.

The court noted (at [29]) that:

“the Inspector correctly applied the relevant guidance in the NPPF to her findings. She assessed whether or not the demolition and new development would cause either substantial, or less than substantial, harm to the heritage asset – the Conservation Area – and concluded that it would not. She was entitled to reach such a conclusion under the provisions of section 72 of the PLBCAA 1990, as explained in South Lakeland District Council v Secretary of State [1992] 2 AC 141…”

As to the relevance of the proposed redevelopment, the court held (at [34]) that:

“If policy D17 did prevent the decision-maker from considering the merits of the proposed redevelopment, it would be inconsistent with the NPPF, which enables the decision-maker to weigh the harm to the asset against the benefits of any proposal, on a sliding scale, depending upon the nature of the asset and the level of harm.”

In this case, neither party suggested that policy D17 was inconsistent with the NPPF. As such, the inspector had correctly applied the relevant guidance in the NPPF by assessing whether or not the demolition and new development would cause either substantial, or less than substantial, harm to the heritage asset (the conservation area), and concluded that it would not.

The exercise of planning judgment and the weighing of the various issues were entirely matters for the decision-maker. There was “ample evidence upon which the inspector could justifiably have based her assessment of the existing house and its significance” (at [37]). As such, her findings were legitimate, the decision letter was “careful and conscientious” (at [42]) and the challenge “relied excessively on drafting criticisms and selective quotations” (at [46]).