R: Abdul Wakil (t/a Orya Textiles) and Others v London Borough of Hammersmith & Fulham Orion Shepherd's Bush Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wilkie |
| Judgment Date | 25 May 2012 |
| Neutral Citation | [2012] EWHC 1411 (QB) |
| Court | Queen's Bench Division |
| Date | 25 May 2012 |
| Docket Number | Case No: CQ/735/2011 |
[2012] EWHC 1411 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2T, T,
Mr Justice Wilkie
Case No: CQ/735/2011
Gregory Jones QC and Annabel Graham Paul (instructed by Webster Dixon LLP) for the Claimant
Russell Harris QC and Richard Turney (instructed by LB Hammersmith & Fulham Legal Services) for the Defendant
Hearing dates: 15 & 16 May 2012
Introduction
The thirteen Claimants are freehold or leasehold owners of various trading premises between 30–52 Goldhawk Road W12, which is a terrace of shops, cafes and restaurants fronting onto Goldhawk Road in Hammersmith. They adjoin but do not form part of Shepherd's Bush Market. Most of them do not have English as their first language and all are members of ethnic minority racial groups.
The Defendant is the local planning authority for the area. It produced and adopted on 27 th October 2010 a document which purported to be a Supplementary Planning Document (SPD). That decision is the subject of this challenge. The Interested Party (Orion) is a developer who has now obtained outline planning permission for the regeneration of Shepherd's Bush Market but plays no active role in these proceedings.
The grounds of the application for Judicial Review fall within the following categories:
(i) There are alleged failures in respect of the consultation procedure.
(ii) It is said that the document which was adopted was not in conformity with the relevant development plan document which was the unitary development plan number SBTC3.
(iii) It is said that the document the subject of the decision is not, in substance, an SPD under the 2004 Regulations but is in an Area Action Plan which, being a "development plan document" (DPD), should have been subjected, before adoption, to a different procedure which would involve submitting it to the Secretary of State for independent assessment.
(iv) It is said that, whether or not the document was a DPD or an SDP, it should have been subject to a Sustainability Appraisal and/or a Strategic Environmental Assessment (SA and/or SEA) and/or that the defendant should have considered whether it should be subject to either of these assessments.
(v) It is said that the Council failed to comply with its then duty under section 71 of the Race Relations Act 1976 to have due regard to the need to eliminate unlawful discrimination and victimisation and or to promote equality of opportunity and good relations between persons of different racial groups.
Background and History
In December 2009 the Defendant produced a planning brief to guide the intended enhancement of Shepherd's Bush Market and the surrounding area. It stated that its aim included:
"to renovate and improve the physical fabric of the existing markets to ensure their long term viability and vibrancy as an iconic destination and to include new shops cafes and restaurants in the development mix with opportunities for independent businesses on the Goldhawk Road frontage to relocate".
Within that document there was included a plan entitled "Development Guidelines" which referred to:
"mixed use development with retail and leisure on most ground floors and residential/offices above" and, in respect of the Goldhawk Road frontage, said "building height along this frontage to be appropriate to the general scale of Goldhawk Road i.e. four or five storeys".
The planning brief referred to the fact that a survey, to gauge the views of local residents, businesses and traders, was to be undertaken by M & N Communications on behalf of the defendant. M & N did conduct such a survey. To do so it used a survey document which was appended to the M & N consultation report, dated 3 February 2010, to which I will return. The survey document envisaged that one of the categories of consultee which would be part of the survey was "business on Goldhawk Road". In the survey document, the regeneration was described in the following terms:
"the Council proposes the enhancement of the Markets and the development of the surrounding land as a vibrant new mix of small shops, market stalls, leisure uses (such as cafes and bars), housing and offices".
It is said by the Defendant that a letter dated 4 th December 2009 was sent to the business owners on the Goldhawk Road frontage. It was headed "An important letter to Goldhawk Road businesses from H & F Council". It indicated, in clear terms, that it was updating them on the Council's aim to bring substantial improvements to Shepherd's Bush Market and the surrounding area. The Defendant wanted to ensure that valued existing businesses remain as part of the mix and sought their views. In particular it said:
"We believe there would be advantages if we included businesses currently located between 30–52 within the regeneration area so that we can provide a new frontage on the main road. We would want to ensure the existing valued businesses are relocated within this scheme".
The letter stressed that no actual firm plans or proposals at this stage were in existence, or final decisions taken, but the views of the businesses were absolutely crucial. It indicated that they would be contacted by representatives of M & N Communications who were conducting a survey. It also identified drop-in sessions to be held at Shepherd's Bush Library.
The main deponent for the Claimants, Aniza Meghani, says she became first aware of the proposal to develop the Market in December 2009 when an officer of the Defendant invited her to a meeting and enquired whether they would be interested in being relocated as part of the regeneration of the Market. She indicated that they were not interested in that and were not interested in attending the meeting as they were not part of the Market. She did not recall ever reading the letter to which I have referred and has enquired with shop keepers who do not appear to have received the letter. No one from M & N came to visit her. At that stage she did not understand that the regeneration proposals intended the demolition of the Goldhawk Road premises but she became so aware in September 2010.
In September 2010 a farther draft planning and regeneration brief was published. It referred to revisions having been made to the December 2009 version following the public consultation exercise.
It says, amongst other things, the following:
"Introduction
1.1.. . The whole area needs upgrading and renovating if the market is to perform its role in the future. There is an opportunity to do this now in conjunction with the development of adjacent land in a way that will regenerate and make a major difference to this part of the town centre.
1.2 The Market is identified in the Council Unitary Development Plan 2007 … in policy SBTC3 which says that the Council will support the retention and improvement of the Market, acknowledging that it is an important feature of the town centre. In more recent emerging policy a wider market regeneration area is included within the White City opportunity area identified in the Borough's Local Development Framework Core Strategy Options. That document sets out the preferred options "to regenerate and provide an enhanced focus and destination in the western part of the town centre by refurbishing the market and other land as a vibrant mixed use town centre development of small shops, market stalls, leisure uses, residential and offices. [Note: it is expected that the Council will publish its proposed Core Strategy in October 2010]
1.3 The Shepherd's Bush Market brief provides detailed guidance on how the area should be regenerated and it is proposed that it will be adopted as a Supplementary Planning Document to the Council Unitary Development Plan Policy SDTC3… however before consulting the adoption of the brief the Council is consulting again will local people, market traders and businesses and other interested parties …
Vision
1.4 … The unique character and diversity of the famous existing market should be at the core of regeneration but be enhanced and complemented by new shops, residential, leisure and cultural activities where independent specialist small businesses and the creative arts can thrive …
Objectives …
• To complement and integrate the markets renovation for retail and leisure led mixed use scheme that will provide a vibrant ground floor mix of shops cafes and restaurants (providing opportunities for independent businesses and for the relocation of businesses from the Goldhawk Road frontage); with a mixture of residential and offices on upper floors essential to the urban mix…
2. Site and surroundings;
2.1 … the area that forms the planning and regeneration area is highlighted on the site plan below … it includes;
… property at 30–52 Goldhawk Road …
2.4 it is proposed that properties at 30–52 Goldhawk Road should be included in the development area. These are of poor visual quality and of a scale that is no longer appropriate to this part of the Goldhawk Road townscape. It is also important to include the frontage so that better access to the market and the central part of the site can be provided better connecting the regeneration area with Goldhawk Road. There should be opportunities to relocate these businesses within the main development on suitable terms …
4. Development guidelines and principles …
4.4 Proposals must be phased to minimise disruption to the operation of the market where possible having regard to the amenity of the adjoining residents. Phasing should also enable the potential of relocation of businesses on Goldhawk Road to new premises within the scheme …
Land use mix …
4.9 … new accommodation...
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