Tower Hamlets v Secretary of State for Housing, Communities And Local Government & Anor

In an enforcement appeal concerning unlawful demolition in a conservation area, likely future development may constitute a material public benefit even where no specific planning application exists. Its objective likelihood is relevant to weight, and remoteness is for the inspector’s factual and planning judgment, subject to rationality. The benefit must nevertheless be assessed against the harm caused by the demolition actually before the inspector, not by an unconsidered redevelopment scheme. A decision is lawful if the inspector addresses the principal controversial issues and gives intelligible reasons. The remedial ground concerning steps exceeding what is necessary to remedy injury to amenity cannot ordinarily justify doing nothing where unlawful demolition has caused amenity injury that only rebuilding could remedy.

The council challenged an inspector’s decision allowing appeals against enforcement notices requiring the facsimile rebuilding of three unlawfully demolished, unlisted Victorian houses in a conservation area. The inspector granted retrospective permission for demolition simpliciter, relying partly on the likely public benefits of future housing development despite the absence of a current planning application. The council brought statutory review proceedings under section 288 of the Town and Country Planning Act 1990 and an appeal on a point of law under section 289. The central issues were whether the National Planning Policy Framework permitted those speculative future benefits to be considered, whether the decision was irrational or inadequately reasoned, and whether the enforcement appeal ground concerning proportionality supplied an alternative basis.

1. Challenges dismissed. The inspector had power under sections 174(2)(a) and 177(1)(a) of the Town and Country Planning Act 1990 to grant permission only for the matter stated in the notices: demolition of the three houses. He could not determine permission for a future redevelopment scheme.
2. Paragraphs 193 and 196 of the NPPF nevertheless permitted consideration of likely future development benefits. The relevant proposal remained demolition simpliciter, and the harm was the harm caused by that demolition. But planning benefits need not be certain to be material. Objective likelihood, assessed from circumstantial evidence such as housing need, market conditions, site suitability and indicative schemes, may affect weight.
3. The question was essentially one of remoteness. It was for the inspector to evaluate whether the anticipated benefit was too remote, subject to rationality. The inspector was entitled to treat the absence of a concrete proposal as reducing weight rather than eliminating relevance.
4. The inspector’s conclusion that suitable housing development was likely, and that its benefits outweighed the very low level of less-than-substantial heritage harm, was rational. His reasons adequately explained why the appeals succeeded, including his brief consideration of development retaining the buildings.
5. The court’s comments on section 174(2)(f) were alternative and obiter. A complete rebuild was the only step capable of remedying the demolition breach. The inspector had not identified how doing nothing would remedy the injury to amenity caused by loss of the historic buildings. Tapecrown Ltd v First Secretary of State was distinguishable because it concerned unlawful development, not unlawful demolition.

The inspector’s decision was upheld and both the statutory review claim and the section 289 appeal were dismissed.

The judgment does not state a prior appellate decision. It records statutory review proceedings under section 288 and an appeal on a point of law under section 289 against the inspector’s decision dated 17 December 2018.