R (on the application of Holborn Studios Ltd) v The Council of the London Borough of Hackney GHL (Eagle Wharf Road) Ltd (Interested Party)

JurisdictionEngland & Wales
JudgeJohn Howell
Judgment Date10 November 2017
Neutral Citation[2017] EWHC 2823 (Admin)
Docket NumberCase Nos: CO/6434/2016; CO/113/2017
CourtQueen's Bench Division (Administrative Court)
Date10 November 2017
Between:
R (on the application of Holborn Studios Limited)
Claimant
and
The Council of the London Borough of Hackney
Defendant

and

GHL (Eagle Wharf Road) Limited
Interested Party
And Between:
R (on the application of Del Brenner)
Claimant
and
The Council of the London Borough of Hackney
Defendant

and

GHL (Eagle Wharf Road) Limited
Interested Party

[2017] EWHC 2823 (Admin)

Before:

John Howell QC

(sitting as a Deputy High Court Judge)

Case Nos: CO/6434/2016; CO/113/2017

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 (Holborn Studios Ltd)

Jessica Elliot (instructed by Shakespeare Martineau) for the Claimant (Del Brenner)

Nicholas Ostrowski (instructed by the Solicitor to Hackney Borough Council) for the Defendant

Robert Walton (instructed by Richard Max & Co) for the Interested Party

Hearing dates: 25 and 26 October 2017

Judgment Approved

John Howell QC:

1

These two claims for judicial review impugn the grant of planning permission by the Council of the London Borough of Hackney for the redevelopment of Eagle Wharf. The questions they raise include: (a) in what circumstances may an application for planning permission be amended without notification of the amendment to others and (b) what test, or tests, should the court apply when reviewing the legality of such an amendment.

2

Eagle Wharf lies on the south side of the Regents Canal in Hackney. The Wharf consists of a complex of two to three storey buildings, with a prominent chimney. It is listed as being of local architectural and historic interest and it lies within the Regents Canal Conservation Area. The Canal is itself a Site of Interest for Nature and Conservation and part of the Blue Ribbon network of waterways in London identified in the London Plan. The site also lies within a Priority Employment Area in the Council's Core Strategy (which, together with the London Plan, forms part of the development plan for the area).

3

Eagle Wharf was the site of the Regents Canal Iron Foundry, which was set up by Henry Grissell in the 1840s and which supplied structural and ornamental ironworks used in a number of prominent buildings in London. In the 1870s part of the site was developed as an engineering works and the distinctive chimney and gable ranges now seen on the site were constructed. The Wharf was subsequently used in the 1890s to make explosives. Since 1990, however, most of the premises have been refurbished for use as photographic/film studios by one of the two Claimants, Holborn Studios Limited (" Holborn Studios"). It is now the largest photographic studio complex in Europe. It is used for photography and film work, including fashion shoots and recording television programmes, featuring people, animals and vehicles. Holborn Studios, which now holds a 15 year lease of most of the Wharf, also grants licences to use a number of small units to other media businesses. The Wharf also accommodates a bar and restaurant with a large conservatory and extensive outdoor seating overlooking the Canal. Over 300 people are employed on the site and there are three canal boat moorings along its length.

4

On July 17th 2015 Executec applied to the Council, who are local planning authority for the Borough, for permission for the partial demolition of all the existing buildings in the Conservation Area (retaining only the chimney and a three storey building, the main section of which faces the canal) and also for full planning permission for a redevelopment to provide a mixed use scheme, containing residential, commercial and café floorspace (including the creation of a new basement, landscaped communal courtyards, a pedestrian link route to the Regents Canal, cycle parking and other associated works) (" the 2015 application"). The new buildings proposed ranged from two to seven storeys in height. Those facing the Canal were six storeys in height and were located on each side of the chimney which was retained as a free standing structure. The plans submitted with the application also showed six areas within the proposed new basement identified as studios, which were to be served by a goods lift from street level. Within four of the studios there were columns supporting the structure above. The Planning Statement, which accompanied the application, stated that "the commercial floorspace provided on site includes space [in the basement] for film/photographic studios, specifically designed to meet the requirements of Holborn Studios, thereby allowing for the retention of a key local business on site."

5

The 2015 application was the subject of a number of amendments, including a number made in May 2016 (with which these claims for judicial review are concerned). In the event, on July 6 th 2016, the Council's Planning Sub-Committee resolved to grant conditional planning permission to the Interested Party, GHL (Eagle Wharf Road) Limited, subject to the completion of an agreement under section 106 of the Town and Country Planning Act 1990 (" the 1990 Act"). That permission (which these claims for judicial review impugn) was granted on November 8 th 2016. Permission to make these claims for judicial review was granted by Lang J.

6

The first of these claims is brought by Holborn Studios. Its complaints are that, unfairly and unreasonably, neither it nor the public were notified of, or consulted on, the amendments made to the 2015 application in May 2016; that the Council unfairly failed to adjourn consideration of the application by the Planning Sub-Committee to give it time to respond; that, unfairly, the Council failed to disclose unredacted two letters on which officers had relied to support their view that the proposed studio spaces in the basement were workable and that their layout was acceptable; and that the Sub-Committee acted under a mistake of fact as to the relevant expertise of the letter writers.

7

The second claim for judicial review is brought by Mr Del Brenner, the Secretary of the Regents Network, a community organisation that aims to protect London's waterways from inappropriate and negative development. He is also a Member of the Mayor's Waterways Commission. His complaint is also that, unfairly, he and other members of the public were not notified of, or consulted on, the amendments made to the 2015 application in May 2016. But he further contends that the Planning Sub-Committee failed to take into account policies in the development plan relating to the Blue Ribbon Network and that they also failed to take into account certain policies designed to protect heritage assets.

The Relevant Legal Framework

8

An application for planning permission must be made in the form and manner, with such particulars included in the application and with such accompanying documents and other materials, as is provided for in a development order made by the Secretary of State: see section 62(1) and (2) of the 1990 Act. Such a development order must also specify which such applications must be accompanied by a statement about the design principles and concepts that have been applied to the development and about how issues relating to access to the development have been dealt with: see section 62(5).

9

The current relevant development order is the Town and Country Planning (Development Management Procedure) (England) Order 2015 (" the 2015 Order").

10

Article 7(1) of the 2015 Order provides inter alia that:

"….an application for planning permission must—

(a) be made in writing to the local planning authority on a form published by the Secretary of State (or a form to substantially the same effect);

(b) include the particulars specified or referred to in the form;

(c) except where the application is made pursuant to section 73 (determination of applications to develop land without conditions previously attached)…., be accompanied, whether electronically or otherwise, by—

(i) a plan which identifies the land to which the application relates;

(ii) any other plans, drawings and information necessary to describe the development which is the subject of the application;…"

11

Because the application for planning permission in this case was for a "major development" (as defined in the 2015 Order) and involved the provision of more than one dwelling and a building of more than 100m 2 in a conservation area, it was required to be accompanied by a "design and access statement": see article 9(1) and (2) of the 2015 Order. Article 9(3) of the 2015 Order provides that:

"A design and access statement must—

(a) explain the design principles and concepts that have been applied to the development;

(b) demonstrate the steps taken to appraise the context of the development and how the design of the development takes that context into account;

(c) explain the policy adopted as to access, and how policies relating to access in relevant local development documents have been taken into account;

(d) state what, if any, consultation has been undertaken on issues relating to access to the development and what account has been taken of the outcome of any such consultation; and

(e) explain how any specific issues which might affect access to the development have been addressed."

12

The importance that Parliament attaches to compliance with all of these requirements is reflected in section 327A of the 1990 Act:

"(1) This section applies to any application in respect of which this Act or any provision made under it imposes a requirement as to–

(a) the form or manner in which the application must be made;

(b) the form or content of any document or other matter which accompanies the application.

(2) The local planning authority must not entertain such an application if it fails to comply with the requirement."

13

Section 65 of the 1990 Act also makes provision for...

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