The Dorothy Bohm v SSCLG [2017] EWHC 3217 Judgment clarifies that just because something is a ‘positive contributor’, so long as it is not designated in itself, a Local Planning Authority should not automatically conclude that it cannot be demolished/redeveloped until it has assessed it in comparison with the potential enhancements of a proposed development.
Importantly, this implies that the demolition of an NDHA in a Conservation Area cannot be treated as harm to a designated heritage asset in isolation, but that the scheme as a whole needs to be considered, with the demolition being just one factor in this.
In other words, the demolition of an NDHA in a Conservation Area should not be regarded in the same way as if it were the designated asset itself. The Court held that even though the existing building in this case made a positive contribution to the Conservation Area and would be completely lost, this did not mean that the Conservation Area would inevitably be harmed, as had been suggested by the Council. As the replacement dwelling would, in the Inspector's judgment, be of an acceptable design which would preserve the character of the Conservation Area, no harm to the Conservation Area would arise. In other words, the loss of the positively-contributing NDHA does not conclude that harm must arise to the Conservation Area.
In terms of applying policy, the demolition of an NDHA within a Conservation Area should be assessed in terms of NPPF 135, with the summary assessment of the development taking into account the scheme as a whole (including the replacement building) and any public benefits arising from the proposal in terms of the impact on the designated asset (the Conservation Area), applying the tests of NPPF 132-134.
This is distinct from a situation where the demolition of an NDHA itself is considered to be harmful to the Conservation Area and therefore a conclusion drawn that its loss must represent “less than substantial harm”.
This Judgment will have an effect on how LPAs assess the principle of the demolition of NDHAs within Conservation Areas and will tend to prevent the demolition itself from being used as a reason to resist development due to assumed harm to a Conservation Area.
