Geoffrey Juden v The London Borough of Tower Hamlets
| Jurisdiction | England & Wales |
| Judge | Sir Duncan Ouseley |
| Judgment Date | 21 May 2021 |
| Neutral Citation | [2021] EWHC 1368 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4314/2020 |
| Date | 21 May 2021 |
and
and
[2021] EWHC 1368 (Admin)
Sir Duncan Ouseley
Sitting as a High Court Judge
Case No: CO/4314/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Harwood QC and Andrew Parkinson (instructed by Harrison Grant Solicitors) for the Claimant
Saira Kabir Sheikh QC and Alexander Greaves (instructed by the Solicitor to the London Borough of Tower Hamlets) for the Defendant
Rupert Warren QC (instructed by Pinsent Mason Solicitors) for the First Interested Party
Alistair Mills (instructed by the GLD) for the Second Interested Party (by written submissions)
Hearing dates: 5 and 6 May 2021
Approved Judgment
On 9 October 2020, Tower Hamlets London Borough Council granted planning permission and listed building consent for residential development of the former London Chest Hospital at Bonner Road, both building and grounds, for residential purposes. Its use as a hospital ceased in 2015. It is a Grade 2 listed building, listed in 2016. It also lies within the Victoria Park Conservation Area. Within the grounds is a “veteran” mulberry tree, which was to be moved to another location within the site to enable the development to take place. The permission and consent were granted to Crest Nicholson Operations Ltd, the first interested Party, Crest Nicholson. Mr Juden, the Claimant, is a local resident, opposed to the development, which was locally controversial.
This is an application for judicial review to quash those decisions on the grounds that (i): the Heritage Officer of Tower Hamlets LBC produced what the Claimant characterised as an internal consultation response, and which the Claimant contended should have been listed and made publicly available as a background paper under s100D Local Government Act 1972, the LGA; this mattered because her view on the degree of harm which the development would cause to heritage assets had changed by the time the Committee Report was finalised; (ii) the Committee Report had misinterpreted paragraph 196 of the National Planning Policy Framework, NPPF, and had thereby breached the provisions of the Planning (Listed Buildings and Conservation Areas) Act 1990, the LBA; the Report had wrongly taken account of the benefits to heritage assets when judging the degree of harm which those assets would experience, and had double-counted benefits in the overall planning balance in consequence; (iii) part of the Committee Report was irrational in the way public benefits were to be weighed; (iv) the Committee Report equated “substantial harm” within the NPPF to “a total loss of significance”, thereby setting the point at which “less than substantial harm” would become “substantial harm” too high; and (v) the Committee Report and the advice at the Committee meeting had misinterpreted paragraph 175c of the NPPF relating to the loss of or deterioration of veteran trees in a number of ways, which had affected its approach to the risk of the tree dying as a result of its proposed relocation.
Holgate J, as Planning Liaison Judge, joined the Secretary of State as an Interested Party, so that the Court could have the benefit of written submissions on his behalf on how the NPPF should be interpreted in relation to (i) the stage at which heritage benefits should be weighed: should it be when assessing the degree of harm or should it be when the overall planning balance came to be struck, and (ii) the interpretation of its policy on veteran trees.
The applications were made in December 2016, and were significantly amended a year later and again in May 2018. A final change to the affordable housing provision was made in July 2018, but that did not affect the design issues. The Strategic Development Committee, by 4 votes to 3, with 1 abstention, resolved to grant planning permission and listed building consent on 20 September 2018, but these were not issued until two years later, because of the time it took for an agreement to be concluded under s106 Town and Country Planning Act 1990, for the Mayor of London to decide to leave the decision with Tower Hamlets LBC, and then for the proposal to be reassessed against the newly adopted Local Plan. This case does not involve any policy within any version of the Local Plan.
The former hospital is an 1850s building, built in a late C17 Wren style, to resemble a country house in a parkland setting, affording healthy surroundings for tubercular patients. The proposal was to provide 291 dwellings, 50 by conversion works to the main building, and the rest in three new buildings in the grounds. 35 percent were to be affordable. This was the maximum reasonable amount of affordable housing deliverable within the scheme. The works to the listed building would involve the demolition of the original south wing off the main building, the main roof, and all rear extensions. Existing chimneys would be rebuilt but in different places from their original locations. There would be a new full-width, full-height extension to a rear elevation which had already been substantially compromised. The fabric of the retained building would be refurbished; the front elevation and key internal spaces internally would be restored.
I have taken that description largely from the Executive Summary to the Committee Report. I set out more of it as it is a convenient introduction to the issues. It began with the legal framework, including the correct effect of the duties in the LBA. It then described the development, largely as above. It then said, before dealing with topics which do not concern this case:
“2.5 The proposed scheme would result in significant, albeit less than substantial, harm to the significance of the Grade II listed hospital building owing to the loss of various historic elements including the south wing, the main roof, and the remaining expanse of the rear elevation. There would be some harmful impacts to the setting of the hospital building arising from the proximity and height of the proposed residential buildings, proposed within its curtilage. The scheme would also result in less than substantial harm to the character and appearance of the Victoria Park Conservation Area as a result of the location, scale and appearance of the new residential buildings.
2.6 The proposal would result in the loss of 27 trees across the site, including 11 trees subject to the site wide Tree Preservation Order. The proposed replacement planting along with the landscaping works is considered to provide adequate mitigation so as to ensure the green character of the area is preserved.
2.7 The scheme would provide significant public benefits including securing the listed hospitals future up keep and conservation, additional housing, affordable housing, guaranteed public access to the front lawn of the site and improvements to a number of elements of the heritage importance across the site including sensitive repair, refurbishment and alterations to the front facade of Hospital Building and the Victorian iron railings, that would together better reveal the significance of these elements of the listed building.
2.8 “Less than substantial harm” to heritage assets is required by policy and statute to be given significant weight against the granting of planning permission, unless the public benefits would be such that they would, on balance outweigh the harm. Officers consider that, on balance, the scale of the public benefits which the scheme delivers would outweigh the less than substantial harm to the significance of the Grade II listed Hospital Building along with the adverse impacts upon the character and appearance of the Victoria Park Conservation Area.
2.9 The proposals would include the relocation of a Black Mulberry Tree to a new position on the site. The scale of the public benefits deliverable through the scheme is considered to outweigh the potential risk of the veteran Black Mulberry Tree not surviving the proposed relocation.”
The Listed Buildings Act
There are particular provisions in the Listed Buildings Act which deal with how development affecting listed buildings and conservation areas is to be considered. I take this from what I said in R (Safe Rottingdean Ltd.) v Brighton and Hove City Council and Fairfax Acquisitions Ltd. [2019] EWHC 2632. S66(1) provides:
“In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of a special architectural or historic interest which it possesses.”
S72(1) is in broadly similar language, dealing with conservation areas:
“In the exercise, with respect to any buildings or other land in a conservation area, of any functions under [the planning Acts], special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that conservation area.”
These provisions have been the subject of considerable judicial analysis, but I need go no further back than Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council and others [2014] EWCA Civ 137, a case concerning s66 principally. Sullivan LJ with whom Rafferty and Maurice Kay LJs agreed, accepted that the nature of the duty was the same under both enactments, “preserving” in both meant doing no harm, in the light of South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141, Lord Bridge. However, he had continued, at p146E-G:
“There is no dispute that the...
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