R London Borough of Hillingdon v Mayor of London
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 15 December 2021 |
| Neutral Citation | [2021] EWHC 3387 (Admin) |
| Docket Number | Case No: CO/1683/2021 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2021] EWHC 3387 (Admin)
Mrs Justice Lang DBE
Case No: CO/1683/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Craig Howell Williams QC and Michael Brett (instructed by Legal Services) for the Claimant
Douglas Edwards QC and Isabella Tafur (instructed by Transport for London Legal) for the Defendant
Russell Harris QC (instructed by Pinsent Masons LLP) for the First and Third Interested Parties
The Second Interested Party did not appear and was not represented
Hearing dates: 23 & 24 November 2021
Approved Judgment
The Claimant seeks judicial review of the decision made by the Defendant, on 30 March 2021, to grant planning permission for the construction of a mixed-used development, comprising buildings up to 11 storeys in height, at the site of the former Master Brewer Motel, Freezeland Way, Hillingdon UB10 9PQ (“the Site”).
The Claimant is the local planning authority for the area in which the Site is situated. It identified that the development proposal was of potential strategic importance. On 19 February 2020, it resolved to refuse planning permission for the development. On 16 March 2020, the Defendant directed that he would act as the local planning authority, pursuant to section 2A of the Town and Country Planning Act 1990 (“TCPA 1990”) and article 7 of the Town and Country Planning (Mayor of London) 2008 Order (“the 2008 Order”).
The Third Interested Party (“IP3”) is the owner of the Site and was the applicant for planning permission. The First Interested Party (“IP1”) is a group company of IP3, and has the benefit of a legal charge against the Site. The Second Interested Party (“IP2”) also has the benefit of a legal charge against the Site.
Grounds of challenge
The Claimant's grounds may be summarised as follows:
i) The Defendant misinterpreted Policy D9 of the London Plan 2021 by concluding that, notwithstanding conflict with Part B of that policy, tall buildings were to be assessed for policy compliance against the criteria in Part C.
ii) The Defendant erred in failing to take into account a material consideration, namely, the Claimant's submissions and accompanying expert evidence as to air quality.
iii) The Defendant acted unlawfully and in a manner which was procedurally unfair in that he failed to formally re-consult the Claimant or hold a hearing, prior to his re-determination of the application, following the adoption of the London Plan 2021.
Planning history
The Site comprises an area of some 2.48ha which formerly accommodated a public house/motel which has been demolished. It lies at the junction of Freezeland Way (which bounds the Site to the south) and Long Lane (which bounds the Site to the west), whilst the A40 forms the northern boundary of the Site. A parcel of Metropolitan Green Belt abuts the Site to the east. On the southern side of Freezeland Way and south of the junction lies the Hillingdon local centre, characterised by two storey residential and two/three storey retail premises.
The Site forms part of site allocation Policy SA14 in the London Borough of Hillingdon Local Plan: Part 2 — Site Allocations and Designations (2020) (“LP Allocations”).
The Site lies within an Air Quality Management Area declared by the Claimant in September 2003. It also falls within an air quality focus area (“AQFA”), the A4/Long Lane AQFA. AQFAs are locations that exceed the UK National Air Quality Strategy objectives and EU annual mean limit value for nitrogen dioxide (“NO2”). They are also locations with high human exposure.
Application for planning permission
On 10 October 2019 IP3 made an application for planning permission in the following terms:
“Construction of a residential-led, mixed-use development comprising buildings of between 2 and 11 storeys containing 514 units (Use Class C2); flexible commercial units (Use Class A1/A1/A3/D1); associated car (165 spaces) and cycle parking spaces; refuse and bicycle stores; hard and soft landscaping including a new central space, greenspaces, new pedestrian links; biodiversity enhancement; associated highways infrastructure; plant; and other associated development”.
In support of the application, reports were submitted by Create Consulting (“Create”) on air quality issues, dated September 2019 and October 2019.
Given the scale of the proposed development, the application was referred by the Claimant to the Defendant under article 4 of the 2008 Order. The Defendant provided a response under article 4(2) of the 2008 Order on 2 December 2019 (“Stage 1 Report”) which inter alia made clear that improving air quality was a “core priority” for the Defendant, particularly in AQFAs. Given the proximity of the Site to the A40, the Site was said to be constrained in air quality terms and the Claimant was instructed to “secure appropriate air quality mitigation measures as part of any future planning permission”.
Claimant's consideration of Application
The Claimant's officers prepared a report (“the OR”) to advise its Major Applications Committee, recommending that the application be refused. The OR considered that, although the principle of a residential-led development was acceptable on the Site, the application conflicted with a number of development plan policies, did not accord with the statutory development plan taken as a whole and ought not to be approved.
The statutory development plan at that time consisted of the “London Borough of Hillingdon Local Plan Part One – Strategic Policies” (November 2012) (“LP Part 1”); LP Allocations; “London Borough of Hillingdon Local Plan: Part 2 – Development Management Policies” (2020) (“LP DMP”) and the London Plan (2016).
The Defendant had also published an “Intend to Publish” (“ITP”) version of the draft London Plan on 19 December 2019.
The OR proposed eight reasons for refusal, of which the following are most relevant:
“1. Non Standard reason for refusal Design
The development, by virtue of its overall scale, bulk of built development and associated infrastructure works, height, density, site coverage and lack of landscaping and screening, is considered to constitute an over-development of the site, resulting in an unduly intrusive, visually prominent and incongruous form of development, which would fail to respect the established character of the North Hillingdon Local Centre or compliment the visual amenities of the street scene and openness and visual amenity of the Green Belt, the wider open context and would mar the skyline, contrary to Policies BE1 and EM2 of the Hillingdon Local Plan: Part One — Strategic Policies (Nov 2012), Policies DMHB 10, DMHB 11, DMHB 12, DMHB 14, DMHB 17, DMEI 6 of the Local Plan: Part 2 — Development Management Policies (2020); Policy SA 14 (Master Brewer and Hillingdon Circus) of the Local Plan: Part Two — Site Allocations and Designations (2020), Policies 7.4, 7.6, 7.7 of the London Plan (2016), Policies D1, D3, D4, D8 and D9 of the London Plan (Intend to Publish version 2019) and the NPPF (2019).
…..
5. Non Standard reason for refusal Air Quality
The submitted Air Quality Assessments have failed to provide sufficient information regarding Air Quality, moreover the information submitted is not deemed to demonstrate the proposals are air quality neutral and given that the site is within an Air Quality Focus Area, the development could add to current exceedances in this focus area. The development is contrary to Policy DMEI 14 (Air quality) of the Local Plan: Part 2 — Development Management Polices (2020), Policy EM8 of the Local Plan Part 1 (2012), Policy 7.14 (Improving Air Quality) of the London Plan (2016), Policy SI 1 of the draft London Plan — Intend to Publish (December 2019) and the NPPF (February 2019).”
Whilst the surrounding area is dominated by two-three storey buildings, the tallest element of the proposed development stands at eleven storeys. LP DMP paragraph 5.32 identifies that “high buildings and structures” are those that “are substantially taller than their surroundings, causing a significant change to the skyline”. Policy DMHB 10 applies to proposals for such buildings. The policy provides in particular that:
“Any proposal for a high building or structure will be required to respond to the local context and satisfy the criteria listed below.
It should:
i) be located in Uxbridge or Hayes town centres or an area identified by the Borough as appropriate for such buildings;
ii) be located in an area of high public transport accessibility and be fully accessible for all users; [and]
iii) be of a height, form, massing and footprint proportionate to its location and sensitive to adjacent buildings and the wider townscape context. Consideration should be given to its integration with the local street network, its relationship with public and private open spaces and its impact on local views;”
Policy DMHB 10 built, as a development management policy, on the strategic-level policy in Policy BE1 paragraph 11 of LP Part 1. This required that:
“Appropriate locations for tall buildings will be defined on a Character Study and may include parts of Uxbridge and Hayes subject to considering the Obstacle Limitation Surfaces for Heathrow Airport. Outside of Uxbridge and Hayes town centres, tall buildings will not be supported. The height of all buildings should be based upon an understanding of the local character and be appropriate to the positive qualities of the surrounding townscape.”
In accordance with Policy BE1 LP Part 1, the Claimant undertook a detailed townscape character assessment which formed the evidential basis for...
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