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

At the permission stage of a statutory planning challenge, permission should be granted where a ground is properly arguable and it cannot be said that the same outcome would inevitably follow as a matter of discretion. The interpretation of paragraph 196 of the National Planning Policy Framework is arguable where the proposal concerns demolition alone and the decision-maker has treated prospective benefits from an uncommitted future redevelopment as benefits of that proposal. Irrationality and reasons grounds may also proceed where their assessment depends on the legally arguable approach to the principal issue. A conditional observation about proportionality will not necessarily make a claim futile.

The Council challenged the Inspector’s decision of 17 December 2018 concerning enforcement notices and retrospective planning permission following the demolition of buildings in the Coldharbour Conservation Area. The conjoined applications under sections 288 and 289 of the Town and Country Planning Act 1990 concerned whether the Inspector had lawfully applied paragraph 196 of the National Planning Policy Framework, whether the decision was irrational, and whether adequate reasons had been given.

The court considered whether permission should be refused because the Inspector’s alternative observations about proportionality meant that the same result would necessarily follow.

1. Permission granted on all grounds. The court held that the challenges were arguable and that it was not clear that the same outcome would result even if the principal decision were overturned.
2. Paragraph 196 of the National Planning Policy Framework required proper consideration at a full hearing. Where the proposal consisted only of demolition, it was arguable that the public benefits to be weighed against less than substantial harm were confined to the benefits of that proposal, rather than prospective benefits from a possible future development. The Inspector had treated possible redevelopment, including affordable housing, as relevant benefits, although no planning permission or application for redevelopment existed.
3. The Inspector’s planning judgment could only be relied upon if he had started from the correct legal approach. The irrationality ground was therefore arguable in the context of the paragraph 196 issue. The reasons ground also added little but was sufficiently arguable to proceed.
4. The Inspector’s observation that rebuilding might be disproportionate did not defeat the claim. It was conditional on the decision having been more finely balanced and depended on what the earlier findings should have been. It was therefore not a conclusive discretionary bar to permission.

Holgate J ordered that the conjoined applications under sections 288 and 289 of the Town and Country Planning Act 1990 should be heard together. The present court granted permission on all grounds.