R (Lough and Others) v First Secretary of State
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 21 January 2004 |
| Neutral Citation | [2004] EWHC 23 (Admin) |
| Date | 21 January 2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3394/2003 |
[2004] EWHC 23 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Hon Mr. Justice COLLINS
Case No: CO/3394/2003
Richard Clayton Q.C. & Christiaan Zwart (instructed by Mischon de Reya) for the Claimants
Nathalie Lieven & James Maurici (instructed by The Treasury Solicitor) for the Respondent
Harry Wolton Q.C. & Mark Lowe Q.C. (instructed by Goodman Derrick) for Bankside Developments Ltd, an Interested Party
The claimants are the representatives of an unincorporated association called the Bankside Residents for Appropriate Development which goes under the acronym of BROAD. It was formed to oppose the proposed development of a site at 44 Hopton Street on Bankside immediately to the west of the building which used to be the Bankside Power Station and which now has been converted to house the Tate Gallery of Modern Art (Tate Modern).
The site itself has an area of approximately 0.1 hectare. It was occupied by an industrial building, latterly used by a paper merchant, which was originally constructed in the 19 th Century. Following acquisition of the site by developers, now Bankside Developments Ltd., in May 2001 that building has been partially demolished. In August 2001 a planning application to construct a 32 storey tower on the site was submitted to the London Borough of Southwark, the planning authority. It was this that led to the formation of BROAD. The majority of members of BROAD are residents of two blocks of flats. Falcon Point, a 1970s development, is situated to the north of the site on the other side of Hopton Street. It has a maximum height of 9 storeys. Bankside Lofts is a 1990s development immediately to the west of the site. It includes what is known as the Millennium Tower which rises to 16 storeys and which is faced with glass so that residents can have an extensive view and there is at present no need to have concerns about being overlooked. A small number of members live in almshouses which will also be affected by the new building.
It became clear to the developers that their application would not be likely to obtain approval. The building was too high and would not have fitted into the townscape. Accordingly, that application was withdrawn and the application which is the subject of this appeal was submitted on 13 June 2002. It involves a 20 storey building comprising accommodation above 3 floors of commercial use with two levels for car parking below ground. The top 5 storeys have a sloping design which reduces the floor area of the accommodation. The building is to be set back from the boundaries of the site and will be faced primarily with glass of differing types mixed with powder coated aluminium sections.
Southwark refused planning permission on 16 October 2002. Notice of that refusal was given on 18 October 2002. I shall have to consider the refusal in more detail since one of the grounds relied on by the claimants is founded upon errors said to have been made by Southwark in identifying the reasons for it. The developers appealed. The appeal was heard by an inspector, to whom the power to grant or refuse permission was delegated. He held a public enquiry over 6 days in May 2003. On 9 June 2003 he issued his decision letter allowing the appeal and granting planning permission for the development subject to a number of conditions. This claim under s.288 of the Town and Country Planning Act 1990 was issued on 18 July 2003 by the three claimants who are acting on behalf of themselves and of BROAD.
This claim is based on error of law. It is not possible to attempt to reargue the merits or to question the planning judgment of the inspector. The inspector's decision letter is not to be treated as if it were a statute and subjected to detailed analysis and criticism. It must be read fairly and remembering that it is addressing those who were making representations at the inquiry and so will be expected to be aware of the issues which were raised. I have had more material put before me than was necessary to determine the points which have been raised. That, I fear, is a trend which is all too common in these cases: it only serves to increase the costs of litigation unnecessarily and those responsible for putting these claims together must focus on what material is really needed to be put before the judge. Only that should be copied; the balance, should, of course, be disclosed to the other parties if it might be material, but need only be available at court in case it is required.
The relevant development plan for the purposes of s.54A of the 1990 Act was the adopted Southwark Unitary Development Plan (UDP). Two policies were of relevance. These were first E.2.3 which, so far as material, reads:-
"All new developments � will be expected to display a high standard of design having particular regard to �
(i) established horizontal and vertical visual rhythms;
(ii) providing facades reflecting features of nearby buildings where appropriate;
(iii) use of good quality materials appropriate to the location �
The reason for this policy is stated to be:-
"Developing sites piecemeal with little regard to the form of the surrounding development has, in many cases, led to a poor and incoherent urban form. The erection of buildings of good and imaginative design will result in a more attractive environment for Southwark's residents, workers and visitors".
The second relevant policy is E.3.1 which provides:-
"Planning permission for any development or change of use will not normally be granted where it would involve nuisance or loss of amenity to adjacent users, residents and occupiers or the surrounding area.
The reason for this policy is obvious.
The report of the officers to Southwark's Planning committee recommended that planning permission be granted subject to conditions and, following discussions with the GLA, to the provision of 9 units of affordable housing and of financial contribution to various environmental improvements. However, the Committee decided that permission should be refused. There has been considerable confusion in relation to the reasons upon which that refusal was based and Southwark has not displayed that competence which is expected of a local authority. It started badly by sending a letter to an objector of 22 October 2002 saying that permission had been granted, but this was corrected five days later. The decision notice of 18 October 2002 gives the following reasons for refusal:-
"1. The proposed building by virtue of its height and location would have a visually oppressive relationship to the main entrance to the Tate Gallery of Modern Art and would give rise to overshadowing of the external public areas at the western end of the building detrimental to the enjoyment, by the public, of this important national institution. As such it would be contrary to Policy E.3.1 of the [UDP].
2. The proposed building, by virtue of its height and proximity to neighbouring residential buildings, would be over dominant in its relationship to them and result in an oppressive outlook and an unacceptable degree of loss of privacy and natural lighting to their residents. As such it would be contrary to Policy E.3.1 of the [UDP]".
Notes made by an objector who attended the meeting of the Committee on 16 October record that a Councillor proposed an amendment that refusal should be based not only on Policy E.3.1 but also on Policy E.2.3 because of the impact on the surrounding buildings including Tate Modern. That amendment was carried so that both policies should have been referred to in the notice. Reason 1 may possibly be considered be relate more appropriately to Policy 2.3 than to Policy 3.1, but the impact on the Tate Modern in particular of the proposed building was regarded as a reason to refuse and so the architectural merit of the building was in issue. The minutes, which were approved as correct, record:-
"That planning permission be refused on the grounds of loss of amenity and the impact it would have on neighbouring properties. As such the policy is contrary to Policy E.2.3 (Aesthetic Control) of the Southwark [UDP]".
Thus was confusion compounded since loss of amenity is covered by E.3.1 not by E.2.3. The claimants tried to clarify the obvious confusion but got nowhere. Their request to see a copy of the Clerk's notes of the meeting was refused on the ground that the notes were considered personal and were not for general public inspection. I find that attitude extraordinary since it was clear that the minute was not accurate. Apart from anything else, it conflicted with the notice of 18 October 2002.
Whatever may have been the precise reasons, so far as the developers were concerned, their application had been refused and so they were entitled to appeal. They cannot be criticised for so doing. The appeal lay pursuant to s.78 of the 1990 Act. S.79(1) of the Act provides as far as material:-
"On an appeal under s.78 the Secretary of State � may deal with the application as if it had been made to him in the first instance".
This means that whatever may have been the reasons given by the planning authority for refusing the application, any other reason may be raised before and considered by the inspector. Southwark did not in its Rule 6 statement seek to rely on Policy E.2.3, but there was nothing to prevent BROAD raising it and calling such evidence as it considered appropriate to deal with it.
At the commencement of the inquiry, Counsel for BROAD submitted that the decision notice of 18 October 2002 did not refer to all the...
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