020 7242 4986 or  0333 240 0591 London  |  Birmingham  |  Cardiff
News

To be a designated heritage asset, or not to be a designated heritage asset, that is the question

What is the proper approach to a non-designated heritage asset ("NDHA") located in a Conservation Area? That was the issue in Dorothy Bohm v SSCLG [2017] EWHC 3217 (Admin), a challenge to an Inspector's decision to grant planning permission for the demolition and rebuilding of a dwelling house in the Hampstead Conservation Area in London.

Although not a listed building, the existing dwelling (which would be lost in its entirety) made a positive contribution to the Conservation Area and was identified to be a NDHA in its own right (being of local architectural interest). The question arose as to how s. 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 and paragraphs 132-135 of the NPPF applied to the application.

So far as the impact on the Conservation Area was concerned, the Court held that even though the existing building made a positive contribution to it and would be completely lost, this did not mean that the Conservation Area would inevitably be harmed, as suggested by the Claimant. The Inspector was required to make a judgment based on the entire proposal before her, not just the loss of the existing building. As the replacement dwelling would, in the Inspector's judgment, be of an acceptable design which would preserve the character of the Conservation Area, no harm to the Conservation Area would arise (and thus the strong statutory presumption against development causing harm to a Conservation Area was of no consequence for the application).

As for the fact that the existing building was itself a NDHA, the Inspector was obliged to apply the policy test in paragraph 135 of the NPPF. Unlike paragraphs 132-134 in relation to designated heritage assets, which are concerned solely with the effect of the application on the asset itself, paragraph 135 calls for the weighing of the application as a whole (including what would replace the NDHA). Further, unlike paragraphs 132-134, which impose a presumption against the grant of permission which would cause harm to a heritage asset, paragraph 135 merely requires a balanced judgement to be made by the decision maker. Unlike paragraphs 132-134, paragraph 135 does not seek to prescribe how that balance should be undertaken, or what weight should be given to any particular matter. The Court held that the Inspector had not fallen into error in her approach to paragraph 135.

The Court identified a possible sting in the tail in paragraph 138 of the NPPF, which suggested that the loss of a building which makes a positive contribution to a Conservation Area should be treated as either substantial harm under paragraph 133 or less than substantial harm under paragraph 134, but that even if there was such a policy requirement, it would have made no difference to the outcome of the decision.

The Court also held that the Inspector had not erred by failing to impose a condition which in some way required the new building to proceed following the demolition of the existing building in accordance with paragraph 136 of the NPPF. While such conditions were routinely imposed and it was on the face of it slightly surprising that no such condition was imposed in this case, there were good reasons not to do so and the Inspector was not required to provide explicit reasons for her judgment.

The claim was dismissed.

Jack Parker, instructed by GLD, acted for the Secretary of State for Communities and Local Government. For more information about the case, please contact Jack or his clerks at clerks@cornerstonebarristers.com.