R Grand Central Sound Studios Ltd v Marlborough House Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 20 October 2016 |
| Neutral Citation | [2016] EWHC 2617 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2933/2016 |
| Date | 20 October 2016 |
[2016] EWHC 2617 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mrs Justice Patterson DBE
Case No: CO/2933/2016
Lord Mayor and Citizens of the City of Westminster
and
James Maurici QC and Richard Moules (instructed by Sharpe Pritchard) for the Claimant
Saira Kabir Sheikh QC (instructed by Tri Borough Legal Services) for the Defendant
Rhodri Price Lewis QC (instructed by Baker & Mackenzie LLP) for the Interested Party
Approved Judgment
Introduction
This is a renewed application for judicial review of the decision of Westminster City Council on 29 April 2016 to grant planning permission to Marlborough House Limited (MHL) for the redevelopment of 54 and 55 to 57 Great Marlborough Street (the site) in the centre of London. The site has a lawful use as offices. The grant of planning permission was to convert the majority of the site into residential accommodation.
The claimant is a highly successful company specialising in sound for television, cinema and radio commercials. It has a client base of top advertising agencies and a worldwide reputation for the quality and creative excellence of its work. It employs 31 people. It is based at 51 to 53 Great Marlborough Street (the premises). The premises are immediately adjacent to the site. They comprise eight studios, three at basement level, three at the ground floor and two state-of-the-art studios on the seventh floor. It is critical to the claimant's operation that it has a soundproof environment in its eight studios as external sound and vibration can have a significant impact on its day-to-day operations. The claim was issued on 9 June 2016. The defendant and interested party have both served summary grounds of resistance.
On 15 July 2016 Supperstone J refused permission on the following grounds:
" Ground 1: There was no error with respect to paragraph 51 of the NPPF. There is an identified need for additional housing in the Defendant's area. The issue was one of planning judgment for the Defendant.
Ground 2: The Defendant had the benefit of expert reports. It is not arguable that there was no/insufficient evidence in relation to noise mitigation. This ground amounts to no more than a disagreement with the balance struck by the Defendant in respect of noise disturbance and mitigation.
Ground 3: The relevant considerations and assessment are properly addressed in both officer reports.
Ground 4: The Defendant was aware of its ability to impose such a condition. It did not consider it necessary to do so. This was a decision it was entitled to make in the exercise of its planning judgment."
There are four grounds of challenge:
i) That the defendant unreasonably treated the conversion of offices to residential use as acceptable in policy terms given that:
a) It had announced on 18 March 2015 that changes of use from office to residential were unacceptable in policy terms;
b) The proposal was contrary to paragraph 51 of the National Planning Policy Framework (NPPF);
c) That there was no basis for treating MHL's application inconsistently, as it did, to the application at St Giles' House.
ii) That the defendant had no or insufficient evidence on noise mitigation because it composed a condition to protect the premises from construction noise and vibration without first satisfying itself that the harm was capable of being mitigated pursuant to the condition imposed;
iii) That the Council failed to have regard to a material consideration, namely, that its inability fully to protect Grand Central from noise and vibration would risk the loss of a policy protected noise sensitive use; and
iv) That the Council unreasonably failed to impose a planning condition on MHL's planning permission to protect the premises from adverse changes in vibration from underground trains despite including such a condition on the planning permission it granted on the same day in respect of the redevelopment of St Giles' House, 49 to 50 Poland Street.
The planning application involves the demolition of the existing buildings and redevelopment behind retained street facades to comprise a new building at basement, ground and first to seventh floor levels. The ultimate use is proposed to be for retail/restaurant use on the ground floor but mostly residential. The work is anticipated to take 28 months. The key concern of the claimant is that of ground-borne vibration. That could make it impossible for the claimant's business to function at all as ground-borne vibration would bypass sound insulation in the studios thereby rendering it difficult to make voice recordings which are very sensitive to any interference and background noise. That consequence was explained by the claimant to the defendant at a meeting at City Hall on 26 October 2015.
By that time the claimant had objected to the planning application.
There were two reports to Committee on the application. OR1 was for the Committee dated 17 November 2015. The application was recommended for refusal on the basis that the financial contribution in lieu of affordable housing on the site was inadequate.
Further discussion took place and the application was reported to Committee again on 8 March 2016. I shall refer to that report as OR2. On that occasion the recommendation was to grant conditional permission subject to a section 106 legal agreement to secure, amongst other things, compliance with the City Council's code of construction practice and submission of a SEMP (Site Environmental Management Plan) with an annual cap of £33,000. The Council resolved that permission should be granted and in due course, after the execution of the appropriate agreements, permission was issued.
Prior to then, on 18 March 2015, Councillor Robert Davis, Deputy Leader of Westminster City Council, announced a change in approach to applications seeking to convert office space into residential. The reason was because the balance of commercial to residential floor space had tipped too far in favour of residential use within Westminster's Central Activity Zone (CAZ). Councillor Davis said in his statement that that was causing several damaging impacts which, if nothing was done to assuage the current trend, would have potential to worsen. They were:
i) Damage to the global competitiveness of the most significant business centre in the UK and, indeed, the world. The current trend of losses and undermining the strategic function of the CAZ in favour of housing, which could be delivered in more appropriate locations across London and the UK;
ii) Driving severe undersupply of office floor space in the West End and pushing up rents, thereby harming business activity in the economy; and
iii) Increasing "residentialisation of commercial areas, eroding their character by reducing employment densities and increasing expectations of residential amenity, impacting on legitimate business activities… For all of these reasons the City Council's current mixed-use and office to residential policies are now out-of-date, given that they are based on the market preferring to bring forward offices rather than housing in the CAZ. This is clearly no longer the case. Therefore, applications submitted from 1 September, will be determined under a presumption in favour of sustainable development in line with national policy."
OR1 dealt with the issue of noise disturbance from paragraph 6.3.4. Within paragraph 6.3.4.2, headed 'Noise disturbance during the course of construction', the report said:
"The applicant's Acoustic Consultants have submitted an updated report dealing with the issue of construction noise. This report has been assessed by officers from the Council's Environmental Sciences Team. The report refers to the noise impact in relation to the relevant British Standard, which is the code of practice for noise and vibration from open sites.
Limits have been suggested, in relation to noise from demolition and construction activities in accordance with British Standard Guidance. As these limits would be applicable to the flats immediately adjacent to the site, it is considered likely that the received noise level at the sound studio, which is likely to be soundproofed to protect the use from external noise sources, would be significantly lower. In addition, the applicant has confirmed that a commitment has been made to enter into a S61 agreement (Control of Pollution Act), ensuring that the quietest machinery is used, with silencers, and that acoustic screening is employed wherever possible. Noise and vibration monitoring will also take place continuously. The Environmental Sciences Officer has advised that whilst the proposed vibration levels are not appropriate for a noise sensitive business, lower levels will be imposed through the SEMP. The SEMP will also need to show how impacts on the studio are being reduced. The Council also expects the developer to do everything possible to engage and liaise with the neighbouring residents and businesses. Had the application been recommended for approval, a Site Environmental Management Plan (SEMP) would have been required which would have required the applicant to provide details of noise and vibration (including predictions, managing risks and reducing impacts) and details of monitoring (including predictions, managing risks and reducing impacts) and details of monitoring (including details of receptors, threshold values and analysis methods,...
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