Juden v London Borough of Tower Hamlets

In applying heritage-protection duties and planning policies, a decision-maker may assess heritage harm before taking heritage benefits into account, or may treat positive and negative heritage effects together, provided the statutory duties are observed and the harm is given significant weight. The structure of the reasoning is not itself unlawful if it does not alter the outcome or lead to double counting.

Where a policy concerning veteran trees is considered because relocation creates a risk of loss or deterioration, wholly exceptional reasons and a suitable compensation strategy are separate and cumulative requirements. A planning committee must be advised accurately on both. Misinterpreting the policy and failing to take the correctly interpreted policy into account may justify quashing permission.

The claimant sought judicial review of planning permission and listed building consent granted by the London Borough of Tower Hamlets for redevelopment of the former London Chest Hospital. The scheme involved alterations to a Grade II listed building, development within the Victoria Park Conservation Area, and relocation of a veteran black mulberry tree.

The grounds concerned disclosure of an internal heritage paper, the treatment of heritage benefits under paragraph 196 of the National Planning Policy Framework, the meaning of substantial harm, and paragraph 175(c) concerning ancient or veteran trees. The central issues were whether the committee report lawfully assessed heritage harm and benefits, and whether members were correctly advised about the risks and policy consequences of relocating the tree.

1. Ground 1 dismissed. Section 100D(5) of the Local Government Act 1972 concerns separate papers on which a report is materially based, not drafts or collaborative draft sections which become part of the report itself. The heritage officer’s document was a draft of the heritage section of the committee report, rather than a standalone consultation response or background paper. The court would in any event have been unwilling to find that the outcome would probably have been the same if disclosure had been required, but that did not alter the legal classification of the document.
2. Ground 3 dismissed. The report did not unlawfully net heritage benefits against heritage harm before concluding that the harm was less than substantial. Read as a whole, it identified the harm first and then weighed the heritage and other public benefits against it under paragraph 196 of the National Planning Policy Framework. The Bramshill decision confirmed that the courts should not impose a rigid framework. A decision-maker may treat positive and negative heritage effects together, or bring heritage benefits into the later planning balance, provided the statutory duties under sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 are fulfilled and significant weight is given to heritage harm. The report’s clumsy drafting did not make its reasoning unlawful.
3. Ground 5 dismissed. The report did not equate substantial harm with total loss of significance. The evidence and report showed an appreciation that substantial harm could occur without complete loss of significance.
4. Ground 4 succeeded. Paragraph 175(c) of the National Planning Policy Framework did not directly apply to relocation where the tree was more likely than not to survive. Nevertheless, because the committee considered the risk of death or deterioration by reference to that policy, members had to be advised correctly. Wholly exceptional reasons and a suitable compensation strategy were separate requirements. The advice wrongly treated the compensation strategy as part of the wholly exceptional reasons. That was a misinterpretation of policy and meant that a material consideration was not properly taken into account. Given the importance of the issue and the narrow vote, it was not highly likely that the outcome would have been the same.
5. The planning permission and listed building consent were quashed on Ground 4.

First-instance judicial review in the High Court (Administrative Court). The judgment does not state any prior appellate decision in this litigation.