Historic Buildings and Monuments Commission for England and Others v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Maurice Kay,Lord Justice Moore-Bick |
| Judgment Date | 24 May 2010 |
| Neutral Citation | [2010] EWCA Civ 600 |
| Docket Number | Case No: C1/2009/2187C & C1/2009/2187 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 May 2010 |
[2010] EWCA Civ 600
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
His Honour Judge David Mole QC
Before: Lord Justice Pill
Lord Justice Maurice Kay
and
Lord Justice Moore-Bick
Case No: C1/2009/2187C & C1/2009/2187
Richard Harwood (instructed by Richard Buxton Solicitor) for the Appellant
James Maurici (instructed by Treasury Solicitor) for the First Respondent
David Forsdick (instructed by SJ Berwin Solicitors) for the Second Respondents
Hearing date: 29 March 2010
Lord Justice Pill:
This is an appeal against a decision of His Honour Judge Mole QC, sitting as a Deputy High Court Judge, dated 17 September 2009 in which he dismissed applications under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to quash a decision of the Secretary of State for Communities and Local Government (“the Secretary of State”) to grant permission for the development of land at Doon Street, Cornwall Road and Upper Ground, London SE1. The appeal is brought, by permission of the judge, by Mr William Ashton (“the appellant”) who was one of the unsuccessful applicants before the judge. The other unsuccessful applicants, the Historic Buildings and Monuments Commission for England (English Heritage) and Westminster City Council do not appeal to this court.
Planning permission was granted, subject to conditions, by the Secretary of State on 19 August 2008. The application for permission was made by the second respondents, Coin Street Community Builders Ltd, (“CSCB”) to the London Borough of Lambeth on 1 June 2007. The Secretary of State called in the application for decision and a local Public Inquiry was conducted on 12 February 2008 by an Inspector appointed by the Secretary of State. The proposal had the full support of the strategic (Greater London) and the local (London Borough of Lambeth) planning authority within which the appeal site is situated, but was opposed by other bodies including the applicants in the High Court. The Inspector recommended refusal of the application on environmental grounds but the Secretary of State decided to grant permission.
The permission granted, subject to conditions, is to undertake:
“Redevelopment of site to provide a 8,292 square metre multi purpose community sports centre and swimming pool, 902 square metres of retail/commercial/restaurant/bar floor space (use Classes A1, A2, A3 and A4), 329 residential units and underground part car parking for 56 cars contained within a 43 storey tower measuring 144.3 metres in height and part 7, part 8 storey block with roof terraces and courtyard.”
The appeal site is in Central London on the South Bank of the River Thames. If the permission is implemented, the 43 storey tower would be a prominent feature on London's skyline. The Inspector noted, at paragraph 15.3 of his report, that “the cases of the principal parties focus mainly on the effect of the tower element of the proposed development on the view from St James's Park, its effect on the setting of Somerset House and other listed buildings and its effect on the setting of conservation areas in Lambeth and Westminster”. The Inspector also noted, at paragraph 16.2, that “the residential element of the scheme would make a significant contribution towards meeting the strategic, 10-year housing target for Lambeth”. He noted, at paragraph 16.3, that “a further and particular benefit argued in support of the wholly private housing is its ability to fund the provision and operation of a sports complex for which a need has been identified”. In recommending refusal of permission, the Inspector attached weight to the tower element of the scheme “[imposing] itself on both its immediate and wider context”. It “would detract unacceptably” from the setting of important public buildings and conservation areas.
In deciding to grant permission, the Secretary of State expressed, at paragraph 46 of the decision letter, her views on the effect of the proposed scheme on “heritage assets and views of and across London”. She concluded, at paragraph 47:
“The Secretary of State considers that the benefits of the scheme to the local community are substantial. The provision and ongoing funding (for 50 years at no public cost) of a sports centre and swimming pool complex would address the lack of sports facilities and activities in what is acknowledged to be a deprived area. The scheme would also bring lasting wider social benefits, such as employment, and contribute to economic growth in this part of Lambeth. The scheme would contribute to a mix of uses and activity, of benefit to the immediate locality and the wider area, to be provided by the development of the Doon Street site overall. It would also improve the appearance of the local area. She also gives significant weight to the housing benefits of the scheme, albeit that no affordable housing is included. She concludes that these considerations outweigh the damage to the settings of the Strand and Roupell Street Conservation Areas and Somerset House. Overall, the Secretary of State concludes that the material considerations in favour of the application are of sufficient weight to determine the application other than in accordance with the development plan.”
It is accepted that the Secretary of State, as decision maker, may form her own view on such planning issues and disagree with those of her Inspector. Irrationality is not alleged.
There had been an Environmental Impact Assessment. Following a pre-inquiry meeting, the “main considerations” had been identified by the Inspector. These included the effect of the proposed development on its surroundings and whether the proposal accorded with national and local planning policies. No funding issue was included.
Duties with respect to the leisure complex were set out in an agreement between the London Borough of Lambeth and CSCB pursuant to section 106 of the 1990 Act. The “leisure centre and community facility” was to be “provided by the developer at its own cost”. The development was to be carefully phased so that construction, completion and fitting out of the complex was required ahead of the full residential use of the site. Annual payments of £412,000 a year were required from the developer as on-going funding for the leisure complex.
I have set out, in summary form, the environmental issues on which the Inspector stated the cases of the principal parties mainly focused. The present challenge is a narrower one and turns on the reference in paragraph 47 of the decision letter to the provision and ongoing funding of the proposed sports centre and swimming pool complex. Mr Harwood, for the appellant, submitted that the Secretary of State's reliance on funding of that complex contained a material error of fact in that she believed that the complex would be provided by the developer at no public cost. Alternatively, her reasoning on that issue was unlawful because it left substantial doubt as to whether she made that material error of fact.
The judge concluded, at paragraph 85 of his judgment, that the Secretary of State had not “made a mistake of fact or had regard to an immaterial consideration”. The judge further held, at paragraphs 86 and 87, that there was no failure to give comprehensible reasons on the point now in issue.
The judge held that the interests of the appellant had not in any event “been substantially prejudiced” by the decision. The appellant challenges the judge's finding that he was not a person “aggrieved” within the meaning of that word in section 288 of the 1990 Act and consequently had no standing to make the statutory challenge to the Secretary of State's decision (paragraph 114 of judgment). That issue need be determined only if the appellant would otherwise succeed on his substantive challenge and I will deal first with that challenge.
The error of fact alleged is in paragraph 47. Considering the benefits of the scheme to the local community, the Secretary of State was, it was submitted, in error in stating that the provision and ongoing funding for 50 years of a sports centre and swimming pool complex would be “at no public cost”. That was wrong, first, because public funding had already been provided and, secondly, because, on CSCB's own case, public funding would be required. Even if the funds were not received from central or local government, funds provided from public sector sources did involve public money and should be regarded as public cost. The benefits achieved by the scheme were therefore inevitably at public cost and the Secretary of State was in error in finding otherwise. The cost to the public of funds from public agencies and charities being diverted into this project should have been considered. Had public funding, properly described so as to include funding from non-governmental public sources, been included, the balance of benefit and cost may have been decided the other way.
CSCB submitted a financial appraisal of the project to the Inspector. It showed receipt of a total of £890,950 from the London Development Agency and Waterloo Project Board SRB. The total costs for the scheme are stated to be £210,975,735. The appraisal made provision for an outlay of £12 million to provide the ongoing funding for the leisure complex as required under the section 106 agreement. The appraisal included a sum for...
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