R (on the application of John Phillip Watson) v London Borough of Richmond upon Thames and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Pitchford,Lord Justice Maurice Kay, V.P. |
| Judgment Date | 15 May 2013 |
| Neutral Citation | [2013] EWCA Civ 513 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 May 2013 |
| Docket Number | Case No: C1/2013/0094 |
[2013] EWCA Civ 513
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
His Honour Judge McKenna
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Richards
and
Lord Justice Pitchford
Case No: C1/2013/0094
and
Douglas Edwards QC (instructed by Richard Buxton Solicitors) for the Appellant
Rupert Warren QC (instructed by Merton and Richmond Legal Services) for the First Respondent
Neil Cameron QC (instructed by Eversheds LLP) for the Second Respondent
Hearing date : 30 April 2013
Approved Judgment
This appeal concerns the grant of planning permission for the redevelopment of Twickenham Railway Station. The permission was granted on 30 March 2012 by the local planning authority, London Borough of Richmond upon Thames ("the Council"), on the application of Solum Regeneration Limited ("Solum"). The appellant is a resident of Twickenham and a member of the Twickenham Residents Action Group ("TRAG"), which objected to the planning application. The appeal is against an order of HHJ McKenna, sitting as a deputy High Court Judge, by which he dismissed the appellant's claim for judicial review of the grant.
Permission to appeal was given by Sullivan LJ on a single ground relating to a report submitted to the Council by an advisory body, the Twickenham Advisory Panel ("TAP"), on the proposed development. In reaching their decision on the grant of planning permission, members of the planning committee proceeded on the basis of advice by officers that the report was not material to their consideration of the application. The question is whether that amounted to a failure to have regard to a material consideration and, if so, whether it should lead to the quashing of the planning permission.
The factual background
The proposed development involved demolition of the existing station building and access gantries to the platforms, a phase 1 redevelopment including erection of a podium (or concrete raft) over the railway lines, and a phase 2 redevelopment including:
"A new station concourse with stair and lifts to platform level; three buildings ranging in height between 7 storeys and 2 storeys (where measured from London Road Bridge) comprising 115 residential units, 734 sq.m of flexible Use Class A1 (shops), A2 (financial and professional services) and A3 (restaurant and cafe) floorspace …."
The proposal was the subject of a favourable officers' report. The summary within the main report included the following general description of the perceived benefits:
"The proposed development provides an opportunity to redevelop the area of Twickenham Railway Station providing some key improvements to the station itself benefiting residents, employees of the borough, visitors and rugby/concert crowds, these being:
• A modern new station entrance and ticket hall sited closer to the town centre.
• Lifts from the ticket hall to all platforms.
• Significant improvements to the platform environment including improved facilities and a new secondary over-bridge ….
Insofar as improvements to the immediate area surrounding the station, the following are secured through this development:
• Improved public transport interchange facilities with lifts to a new taxi rank, car park and drop off area.
• An increase in and improved commuter cycle facilities.
• A riverside walk linking the site and the town centre to Moormead Park.
• A public plaza in front of the station entrance bordered by a new bus stop on London Road and complimentary [sic] shops and cafes.
• Ecology improvements to the River Crane environment both on and off site.
It is considered that the redevelopment of the station and its immediate environment would provide a catalyst for the regeneration of the northern approach into the town centre benefiting Twickenham as a whole particularly as a gateway to the town and to Twickenham Stadium."
There were, however, a number of contentious issues, including an issue concerning the height of the proposed development. The Development Management Plan adopted by the local planning authority in November 2011 included Policy DM DC3 on "Taller Buildings", which provided, so far as material:
"Taller Buildings will be inappropriate in all areas of the borough except the identified areas within Twickenham and Richmond ….. Proposals for taller buildings within these areas will need to:
• be well designed and to make a positive contribution towards the skyline and the surrounding area;
…
• respect the local context and character and to be designed in a way that relates to the scale, height, mass, urban pattern and grain, materials, streetscape, open spaces and built form of an area …;
…
• buildings will require a full design justification based on a thorough townscape appraisal and historic area assessment ….
Twickenham (Supplementary Policy Document published with detailed design guidance):
• On the station — buildings up to 4/5 storeys at the highest point and should step down to 2/3 storeys towards Cole Park Road;
…
Any buildings or features taller than the above will only be acceptable subject to a full design justification based on a comprehensive townscape appraisal and there being significant local community support for the public benefits of the overall scheme."
The proposed development exceeded the height limit set out in that policy. But the proviso contained in the last paragraph of the policy is important. A comprehensive townscape appraisal setting out a full design justification was provided as part of the application documentation, and the officers' report stated that the design and architectural approach, including the height of the buildings, was acceptable. It is apparent from the reasons for the grant of planning permission, referred to below, that the planning committee accepted that assessment and also took the view that there was significant local community support for the public benefits of the overall scheme.
Solum argued that the amount of development proposed, including the height of the buildings, was necessary in order to make the overall scheme viable, in particular to fund the raft over the railway lines. The point was explained in this way in the officers' summary:
"… The heights of the buildings exceed the requirements set out in local policy however they are considered to provide a suitable transition between the height of Regal House and the recently erected hotel and the two storey houses in Cole Park Road with a mass that is broken into three blocks where the articulation and geometry is such that the scale and mass is considered to be suitable in the context of a town centre location and providing a gateway into Twickenham.
A key component of the development is the erection of a raft over the railway tracks which would allow the provision of the station entrance direct and closer to the platforms, closer to the town centre and would provide a public plaza in front of it.
…
The applicant has demonstrated with a financial viability study that has been independently verified that subject to the build costs being as predicted (including the raft) the level of enabling development needs to be as proposed (115 residential units and 734 sq m of retail space). Whilst the building heights exceed those set out in Policy DM DC3 and the relevant SPD [Supplementary Planning Document] and no affordable housing is provided the securing of substantial rail investment and improvements as described are considered by officers to be of greater planning benefit to the revitalisation of Twickenham town centre in accordance with Core Strategy Policy CP9 and the UDP Proposal Site (T17)."
TRAG objected to the proposed development, in particular in respect of height. It commissioned an architectural practice to prepare an alternative proposal aimed at delivering the proposed benefits of Solum's scheme, with sufficient enabling development to render the scheme viable, but without exceeding the height limits in Policy DM DC3. That alternative proposal, referred to as Plan B, was submitted as part of TRAG's objection and was examined in an addendum to the officers' report.
The nature and remit of TAP, the details of its report and the circumstances surrounding submission of that report to the Council are considered in the next section. It suffices at this stage to note that the report was submitted on 9 December 2011. This was the same date as that on which the officers' main report to the planning committee was published. The officers' report included reference to TAP in the section on "Public and Other Representations", but it merely stated: "no comments received at the time of writing". The first addendum to the officers' report, published on 16 December, then dealt with the TAP report as follows:
"Members will be aware that the Twickenham Advisory Panel have reported their findings of the application to the Leader of the council (Lord True) on the back of the public event held in July 2011.
This response has not been submitted against the planning application or formally to planning officers and as such the comments therein are not considered material to the consideration of this application."
The planning committee met on 19 December 2011 to consider Solum's application. Members of the...
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