6 C O N T E X T 1 2 2 : N O V E M B E R 2 0 1 1 rather than doing the works while the building was in situ, Johnson would have saved himself £109,320. As expert witnesses concurred on this point, Johnson was sentenced on an agreed basis of this level of financial gain. The defendant was also sentenced on an agreed basis of his state of mind, or culpability. This was that he had behaved ‘grossly negligently’ – a state of mind more serious than mere mistake or carelessness, but less culpable than a deliberate and wilful contravention. On the degree of harm, the prosecution, supported by Philip Davies of Philip Davies (Heritage and Planning) and me, and the defence, supported by CgMs, could not agree. All parties accepted that the conservation area was rightly designated, that 6 Trafalgar Road made a positive contribution to the character and appearance of the conservation area, and that a replica building, if executed accordingly, could substantially mitigate the harm to the appearance of the conservation area. We did not agree on the impact the demolition had on the character of the conservation area. As we could not agree on this issue, it was decided at a ‘Newton trial’, which is a mini-trial before a judge. On the edge of my seat in anticipation that I might be called to the stand, I found the Newton trial absolutely fascinating. Philip Davies, first on the stand, articulated the harm that the demolition had caused to number 6 itself, to the pair, to the larger group of locally listed buildings, and to the setting of adjacent listed buildings. He described the demolition of a principal house, of a form and type for which the conservation area was designated, as substantially harmful to the character of the whole conservation area. When cross-examined, Philip Davies was asked to agree that conservation areas are concerned only with areas, not individual buildings. He disagreed strongly, reaffirming that the individual buildings which comprised a conservation area were crucial to its character, and that the loss of a principal original building must constitute substantial harm. The defence then went on the stand. It was argued that the harm to the character of the conservation area was minimal, as the house was only one of 39, and that the character of the conservation area remained largely intact due to the remaining 38 houses. The defence argued that the overriding consideration should be to the conservation area and not the intrinsic architectural interest of an individual building. During cross-examination, Gary Grant asked one crucial question.What would happen to the cultural value, integrity and authenticity of a complete collection of Victorian stamps if one were torn up and replaced by a modern replica? An individual historic asset would have been destroyed and the collection as a whole diminished. The parallel was obvious. Having heard two days of submissions and evidence, and having taken a keen interest and visited the site himself, His Honour Judge Dodgson ruled that this was ‘one of the worst cases of its kind in this context’. Johnson was ‘highly culpable’. The effect on his closest neighbour (whose semi-detached house was now divorced from its partner and who was in her house at the time of the demolition) was described as ‘devastating’. ‘It may be,’ the judge said, ‘that in a few years to a casual observer the visual impact [of the rebuild] will be unnoticeable, but nothing can alter the fact that it is a replica…The point is made by Mr Davies in his witness statements that if we can just rebuild replicas, then why not replace all the paintings in the National Gallery with a series of photographs?’ Slapping his hand against the bench for emphasis, the judge continued: ‘There is something intangible and incredibly valuable about our history. Parliament has legislated to try and preserve our history in a number of ways and any act that destroys something of the age of that building can not be dismissed as minimal.’ Judges come across such planning cases rarely. During the trial Judge Dodgson noted that he was looking for any light in the dark to guide the level of sentence.We supplied him with the IHBC Prosecutions Database (which is available on the IHBC website). It seems to me essential that heritage professionals feed as much information on prosecutions into this database to guide sentencing in the future, particularly as Judge Dodgson noted that more detailed information would have been helpful. Johnson was fined £80,000, which is believed to be the highest recorded fine for the offence of demolishing an unlisted building in a conservation area, and ordered to pay £42,500 prosecution costs. Judge Dodgson commented that when Johnson’s own substantial legal costs were added to the equation ‘there will be no financial gain and, indeed, you will be substantially worse off’. In default of payment Johnson would have to serve 21 months imprisonment. If Johnson had not pleaded guilty, Judge Dodgson indicated that the fine would have been one of £120,000. This is a very sad case. ‘In my 40 years of experience,’ says Philip Davies, ‘this is the worst case I have encountered of the unauthorised demolition of an unlisted building in a conservation area.’ While photographs give a good idea of the devastation, it is only once you go to the site that you can experience the sense of loss and the level of harm. This case has involved a huge amount of work, but it has paid off. The London Borough of Richmond cherishes its historic buildings and this sentence sends out a clear message to those intent on saving money at the cost of our heritage. The task is now to get a replica building back on the plot. To this end a conservation area enforcement notice has been issued. Rachel Case, conservation officer, London Borough of Richmond (rachel.case@richmond.gov.uk)
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