Dorothy Bohm & Ors v Secretary of State for Communities and Local Government & Ors

For an application affecting a non-designated heritage asset, paragraph 135 of the National Planning Policy Framework requires the decision-maker to make a balanced judgment about the application as a whole. That includes both the loss of the existing asset and the effect of the proposed replacement development.

Where section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 applies, the decision-maker must assess the overall effect of the proposal on the conservation area and give special attention to preserving or enhancing its character or appearance. The law does not require demolition and replacement to be assessed through a separate two-stage process. Paragraph 136 of the Framework requires all reasonable steps to secure subsequent development, but does not mandate any particular condition.

The claimants, representatives of the Church Row Association, challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s decision allowing an appeal against refusal of planning permission.

The permission concerned demolition of an existing dwelling in the Hampstead Conservation Area and its replacement by a new dwelling. The existing building was treated as a non-designated heritage asset. The challenge alleged errors concerning paragraph 135 of the National Planning Policy Framework, the statutory duty under section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, deliberate neglect, the assessment of significance, and the absence of a condition linking demolition to construction.

1. The application was dismissed. The Inspector’s decision was not vitiated by legal error.
2. Under section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, the decision-maker must pay special attention to the desirability of preserving or enhancing the character or appearance of the conservation area. This carries a strong presumption against permission for development that would fail to preserve or enhance it. The relevant assessment is, however, the overall effect of the entire proposal, including both demolition and replacement. No separate two-stage assessment is required.
3. Paragraph 135 of the National Planning Policy Framework imposes a different test for non-designated heritage assets from that applicable to designated assets. It requires the application as a whole to be weighed, having regard to the scale of harm or loss and the significance of the asset. It does not prescribe the method of balancing or the weight to be given to particular considerations. The Inspector correctly assessed the existing building’s significance and balanced its loss against the proposed replacement.
4. Paragraph 138 did not require a different result. Read with the heritage policies as a whole, it could not have been intended to treat the loss of a non-designated asset making a positive contribution to a conservation area as equivalent to the impact on a designated heritage asset. In any event, the Inspector found that the effect on the conservation area would be neutral at worst.
5. Paragraph 130 was not engaged. That policy addresses reliance on poor repair or deterioration as a reason for permitting demolition or enabling development. The Inspector had not relied on the building’s poor condition in finding demolition acceptable.
6. The reference to the building not being a landmark did not establish an unlawful test of significance. It was simply part of the Inspector’s assessment of the building’s role.
7. Paragraph 136 required all reasonable steps to ensure that development proceeded after loss of the heritage asset, but did not require a condition or any particular measure. The Inspector was entitled to omit the proposed condition, having regard to the local authority’s position, the developer’s means and commitment, and the proposed construction management arrangements. On these facts, reasons for rejecting the condition were not legally required.

The judgment describes an earlier planning application and appeal, a later enforcement appeal, and the challenged Inspector’s decision allowing the appeal against refusal of planning permission. This was a first-instance statutory challenge in the Administrative Court.