Organisation for Promotion of Environmental Needs Ltd, R (on the application of) v London Borough of Hackney

In judicial review of a planning decision, the court reviews legality rather than the merits of planning judgment. Where the planning committee has received sufficient information, it may prefer one body of expert evidence over another.

Where development causes less than substantial harm to a designated heritage asset, the harm must be weighed against the public benefits. The reference to optimum viable use concerns the choice between viable uses. If only one viable use exists, the court must assess the public benefits against the heritage harm. A proposal may lawfully permit demolition where the evidence supports the conclusion that retention is unsafe or infeasible.

The claimant sought judicial review of Hackney’s decision of 5 March 2014 granting permission for the demolition and rebuilding of the front facade of a historic terrace in Dalston Lane. Earlier permission had contemplated retaining the facades. Subsequent structural reports gave conflicting views about whether retention was technically feasible and safe.

The claimant argued that the council had failed to consider alternatives involving greater retention of the historic fabric and had misconstrued the requirement in paragraph 134 of the National Planning Policy Framework to secure the optimum viable use of a heritage asset.

1. The claim was dismissed. The council had lawfully decided, on the material before the committee, that the existing facades were inherently unstable, unsafe and incapable of reliable retention during redevelopment. The committee was entitled to prefer the evidence supporting demolition over contrary expert evidence. The court was not entitled to substitute its own planning judgment for that of the committee: intervention required an error of law, not merely a different view on the facts or planning merits.
2. The loss of the facade caused less than substantial harm to the designated heritage asset. The officer’s report recognised that the proposal was contrary to relevant conservation policies and that the harm had to be weighed against the public benefits under paragraph 134 of the National Planning Policy Framework.
3. The committee had sufficient information to consider whether a less harmful alternative was feasible. The structural evidence indicated that retention was not realistically possible, even in the better-preserved part of the terrace. Demolition and reconstruction were therefore capable of being treated as the only sensible option, subject to reconstruction sympathetic to the historic street scene.
4. The court held, as an additional interpretation of paragraph 134, that “optimum viable use” concerned the selection of the least harmful among alternative viable uses. Where there was only one viable use, that use was the optimum viable use and the relevant exercise was to weigh the resulting harm against the public benefits. The judge stated that this point was not central to the outcome and did not affect the result.
5. The claimant’s separate argument concerning the council’s authority as owner to enable demolition did not require determination. Costs were ordered in favour of the defendant in the sum of £10,000. Permission to appeal was refused.