R Holborn Studios Ltd v London Borough of Hackney
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 11 June 2020 |
| Neutral Citation | [2020] EWHC 1509 (Admin) |
| Date | 11 June 2020 |
| Docket Number | Case No: CO/3741/2019 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2020] EWHC 1509 (Admin)
Mr Justice Dove
Case No: CO/3741/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Harwood QC (instructed by Harrison Grant) for the Claimant
Andrew Fraser-Urquhart QC (instructed by The London Borough of Hackney) for the Defendant
Hearing dates: 17th March 2020
Approved Judgment
Introduction
The claimant is the leaseholder of 49–50 Eagle Wharf Road where they run one of the largest photographic studio complexes in Europe. Other media enterprises are licensed to use parts of the building on the site. The interested party have aspirations to redevelop the site for employment and residential purposes. An application for planning permission was initially made on 17 July 2015, and when permission was granted for that application on 19 December 2016 it was the subject of an applications for judicial review by the claimant and a local resident. Those applications for judicial review was granted, leading to the quashing of the planning permission following the judgment of Mr John Howell QC reported as R (Holborn Studios) v London Borough of Hackney [2017] EWHC 2823; [2018] PTSR 997. In the present case by the time the matter was heard the interested party (identified above for the sake of completeness) had withdrawn from the proceedings.
The interested party made a fresh planning application on the site which was validated on 10 October 2017, describing the proposed development in the following terms:
“Partial demolition of existing buildings, retention of 3 storey building and former industrial chimney and redevelopment of the site to provide a mixed use scheme comprising blocks of 2 to 7 storeys and accommodating 5644 sq. m, of commercial floorspace at basement, ground, part first, second, third, fourth and fifth floor level, 50 residential units at part first, part second, third, fourth, fifth and sixth floor levels (23 X 1 bed, 17 X 2 bed, 8 X 3 bed, 2 X 4 bed) as well as 127 sq. m. café floorspace (A3) at ground floor level, landscaped communal gardens, pedestrian link route to the Regents Canal and other associated works.”
The detail relating to the consideration of the planning application is set out below so far as relevant to this judgment. Planning permission was granted for the proposed development on 9 August 2019. The claimant challenges the granting of that planning permission by way of this application for judicial review which is brought on three grounds. Ground one is a sequence of legal contentions related to the information provided in respect of the viability assessment for the proposed development which informed the contributions which were sought from the interested party, in particular in relation to affordable housing. It is said by the claimant that the defendant's approach to this issue failed to comply with national planning policy in relation to the provision of information in respect of viability assessments; that the defendant's approach was in breach of a legitimate expectation in respect of the disclosure of viability information and, finally, that as a matter of law the viability information provided was in breach of the defendant's duties in relation to the publication of background papers to the committee report. Ground two is the allegation that the defendant's guidance for the members of its planning committee were unlawful in so far as they precluded members from reading lobbying material submitted to them by consultees and required that instead this material was passed to officers unread. Ground three is the contention that the defendant's officers failed in the committee report to properly interpret development plan policies in relation to the retention of the existing use as an important component of the creative industries in this part of the defendant's administrative area.
This judgment is structured as follows. Firstly, the history of the consideration of the planning application will be set out. Secondly, the judgment will consider further evidence which was provided by the defendant following the grant of permission to apply for judicial review. Thirdly, the judgment will consider the relevant planning policy relating to the submissions made by the claimant in this case. Fourthly, the defendant's guidance to the members of its planning committee will be examined. Fifthly, the relevant legal principles will be rehearsed. Finally, the grounds will be examined and conclusions reached in relation to their validity.
The history of the planning application
Given the nature of the grounds which have been identified in this case, the narrative of events relating to the planning application focuses in particular upon, firstly, the material which was provided in relation to development viability and, secondly, the consultation process and the consideration of the application by members.
The application was submitted accompanied by a range of documentation addressing the various considerations bearing upon the question of whether or not planning permission should be granted. The Planning Statement, which was part of the application documentation, noted at paragraph 1.16 that a Viability Assessment Report had been prepared to support the application and had been submitted separately “on a private and confidential basis”. This report was, in the form submitted to the defendant, subject to heavy redaction. It was posted on the defendant's website in the redacted version, albeit that the defendant asked the interested party to produce an unredacted version for publication. There is no dispute but that it is not possible to understand the viability of the proposed development from the redacted version, since none of the figures relevant to the calculation of viability are contained within the document.
It appears that the defendant did not press for the unredacted version of the Viability Assessment Report on the basis that it had become apparent that there would be a need for a revised version of this assessment prior to the application being determined. On 10 May 2018 the claimant wrote to the defendant setting out a number of matters upon which it relied to object to the proposed planning application. In particular the letter of objection noted that at that stage the interested party was offering no affordable housing, and the claimant objected on the basis that both national planning policy and the defendant's own guidance contained an expectation that information on viability would be provided on an “open book” basis. The claimant complained of a lack of transparency in the material produced with the application so as to justify the interested party's position that no affordable housing contribution should be comprised within the application.
As anticipated by the defendant, in September 2018 further material was provided by the interested party bearing upon the question of viability. On 12 September 2018 the consultants acting on behalf of the interested party wrote in relation to a number of issues providing additional information and clarification in respect of the application. In particular, in relation to viability the letter records the following as being provided as part of the planning obligations required in support of the application, which the consultants explained were justified by an updated viability appraisal enclosed with the correspondence:
“Viability
Please find attached (Enclosure 3) the updated FVA (dated September 2018) which was originally produced in April 2018 pursuant to viability discussions with the Council and their advisors. The FVA has been updated to reflect further discussions with officers and increase the agreed CIL and S106 financial contributions arising from the development to a figure of £2million from £1.983. The FVA and Summary Report is provided in an unredacted format and can be disclosed to the public.
The FVA demonstrates that the maximum economically feasible amount of employment floorspace has been accommodated within the development.
Affordable Housing Contribution
Pursuant to further discussions with the Council, the Applicant has agreed that the £40,708 S106 contribution previously identified (under the November 2016 consent) for affordable workspace can be reallocated towards the provision of off site affordable housing given that the scheme already comprises 24% affordable workspace.
The redistribution of this contribution results in a minimum S106 affordable housing contribution of £206,797. However, subject to further analysis of the CIL liability of the development, the affordable housing contribution could rise to £805,000.”
An element of the additional viability information which was submitted in September 2018 was what is described as a “Summary Appraisal”. For completeness this document is produced as Appendix 1 to this judgment. The document shows a revenue from residential sales of £33,855,000, together with a valuation of the commercial elements of the development in the sum of £27,130,882. The appraisal identifies a number of elements of cost to be incurred in order to realise the development value. The first of these costs was identified as acquisition costs, described in particular as “Residualised Price” in the sum of £12,298,787. Construction costs and a contingency are identified. Other costs which are specified in the document include Mayoral and Borough CIL in the sum of £1,412,644 together with section 106 contributions of £421,267 and “additional contributions” of £166,089. After these and other costs were taken into account various performance measures are set out in the document, demonstrating profit on cost at 20.53%.
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