Rika Shasha, Toni Shasha and Rownamoor Trustees Ltd as Trustees of the Placement Pension Fund v Westminster City Council Portman Mansions Residents Company Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | John Howell |
| Judgment Date | 19 December 2016 |
| Neutral Citation | [2016] EWHC 3283 (Admin) |
| Docket Number | Case No: CO/2910/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 December 2016 |
— and —
[2016] EWHC 3283 (Admin)
John Howell QC
(Sitting as a Deputy High Court Judge)
Case No: CO/2910/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Victoria Hutton (instructed by Glinert Davis LLP) for the Claimants
Mr Meyric Lewis (instructed by Dir. of Law, Westminster CC) for the Defendant
Hearing date: 29 November 2016
Approved Judgment
John Howell QC:
This is a claim for judicial review of a decision by Westminster City Council on April 29 th 2016 to grant planning permission for development at Portman Mansions, Chiltern Street, London W1. Permission to make this claim was granted by Ouseley J.
The Claimants, the Trustees of the Placement Pension Fund, contend that that decision was flawed on four grounds. In summary these are (i) a failure to consider the Trustees' objections to the effect of the proposed development on the amenity of their premises in Portman Mansions on their merits; (ii) a failure to interpret correctly and to apply a development plan policy, Policy ENV13; (iii) a failure to ensure that there was sufficient information on the impact of the development on the amenity of the Trustees' premises and a failure to take into account its proximity to their bay windows; and (iv) a failure to comply with the requirements arising from section 70(2) of the Town and Country Planning Act 1990 (" the 1990 Act") and section 38(6) of the Planning and Compulsory Purchase Act 2004 (" the 2004 Act").
BACKGROUND
Portman Mansions comprise a number of red brick, residential blocks built between 1890 and 1900 containing some 120 residential units. They are unlisted buildings of merit within the Portman Estate Conservation Area. They face Porter Street to the south, Chiltern Street to the east and Marylebone Road to the north.
The Claimants are the long leaseholders of 2A Portman Mansions (" the premises") in Block 2 which itself contains 48 residential flats. Although their long lease also permits residential use, the premises are currently used as offices.
The premises are at lower ground floor level mainly facing Marylebone Road. They are set back from the pavement on that road behind an open area planted with some small bushes and trees. This open area is at street level behind a small wall with railings next to the pavement but then, nearer the premises, it slopes down towards them. At the bottom of that slope, between it and the premises, there is a narrow, flat hard-surfaced area.
The premises have 10 windows facing Marylebone Road and two smaller windows facing Chiltern Street. Six of the windows facing Marylebone Road are in two bays (each containing three windows). Photographs taken from within the premises show that those inside them can see not only the sloping bank outside facing them but also the wall and railings along Marylebone Road and the buildings on the opposite side of it.
On April 29 th 2016 the City Council decided to grant planning permission for a development at Portman Mansions comprising a number of elements. One element (which is the subject of this claim for judicial review) was the "excavation of a new subterranean building to provide an estate office, meeting rooms and a residents' gym…..below a ground level roof covered by soft landscaping".
The development proposed involved excavating the area behind the wall and railings along Marylebone Road to create a new, single storey building (with an area of 86m 2). That building would be provided with a planted roof incorporating a number of semi-mature trees. The wall of new building, constructed approximately at the bottom of the existing slope, would be directly opposite the premises and on the edge of the existing narrow hard-surfaced area adjoining Block 2. It would be about as high as the existing wall along the edge of the pavement on Marylebone Road but it would, of course, be far closer to the premises. It would be about 1.3m from the main elevation of the Block 2 (and those windows in the premises in that elevation) and only 0.8m from their bay windows.
It would appear that the western part of the wall (behind which the gym is located) is glazed, whereas the eastern part of the wall (behind which the estate office and meeting rooms are located) would not be.
Access to the new building was proposed to be by an entrance on a new paved area at the corner of Marylebone Road and Chiltern Street (opposite one of the premises' bay windows) at the level of existing narrow, flat hard-surfaced area immediately adjacent to Block 2. Access to that paved area was to be provided by new stairs from street level (as well as by use of a new disabled access platform lift).
The plans also show that access to the gym could be obtained at its western end through a door onto existing narrow, flat hard-surfaced area immediately adjacent to Block 2. Although the plans show that access to the gym would be obtainable through the new building itself at its eastern end from the entrance on the new paved area, evidence given by Mr Alistair John Redler, a qualified Chartered Surveyor (which was not contradicted by the Council) is that the existing narrow hard surfaced area in front of the premises "will become an access corridor for those entering and exiting the development via the door near the gym at the furthest end of the corridor."
The application for planning permission was submitted on behalf of the Interested Party, the Portman Mansions Residents Company Limited, on February 3 rd 2016. Effectively it replicated an application for which the City Council had previously granted conditional planning permission on April 4 th 2013. That permission had not been implemented and was about to expire on April 4 th 2016. The application was accompanied by a Design and Access Statement. In relation to the new building proposed it was asserted in the Statement that "given the location of the site there are no issues of overlooking or loss of amenity to adjacent sites." The plans describing the development for which permission was sought did not show the premises' bay windows.
On March 18 th 2016 the Claimants' planning consultants submitted objections to the planning application. Some of the objections were based on the fact that the main facing elevation to this new building was less than 1.5m at its closest point from the 10 windows in the premises that face Marylebone Road. At that stage it appears that neither the Claimants nor their planning consultants had recognised that the bay windows were not shown on the plans for which permission was sought. Among the concerns raised by the Claimants' planning consultants were the potential impact of the development on the levels of daylight enjoyed in, and its overshadowing of, the premises. They pointed out that no supporting daylight analysis, and no evidence that there would not be an unacceptable degree of overshadowing, had been submitted with the planning application. They also objected to the proposed development on the basis that it would result in a significantly increased sense of enclosure within the premises due to its siting and close proximity as well as on the basis that it would lead to a loss of privacy and increased levels of overlooking. In addition they objected to the increased levels of noise and disturbance from the use of the proposed new facilities directly opposite the premises. It was contended that the impact of amenity would be contrary to Policy ENV13 in the City of Westminster Unitary Development Plan.
Policy ENV13 forms part of the development plan for the City of Westminster. It provides inter alia that:
"(E) The City Council will normally resist proposals which result in a material loss of daylight/sunlight, particularly to existing dwellings and educational buildings. In cases where the resulting level is unacceptable, permission will be refused.
(F) Developments should not result in a significant increase in the sense of enclosure or overlooking, or cause unacceptable overshadowing, particularly on gardens, public open space or on adjoining buildings, whether in residential or public use."
The Marylebone Association also objected to the loss of natural light to the premises and pointed out that no daylight study appeared to have accompanied the application.
On April 29 th 2016 Ms Helen Mackenzie, an Area Planning Officer employed by the City Council, completed a report recommending the grant of planning permission (" the Report"). The Report stated that:
"An objection has been received from 2A Portman Mansions which is currently used for office purposes. They are concerned that the proposals would have an impact on existing working/office environment as a result of loss of daylight and potential overshadowing and increase sense of enclosure. The objectors office is located at lower ground floor with windows overlooking the currently sloped landscaped bank, with Marylebone Road behind. UDP Policy ENV13 (E) states that the City Council will normally resist proposals which result in a material loss of daylight/sunlight particularly to existing dwellings and educational buildings. ENV13 (F) states that developments should not result in a significant increase in the sense of enclosure or overlooking, or case unacceptable overshadowing particularly on gardens, public open space or on adjoining building, whether in residential or public use.
The proposal will include a sheer wall in front of the windows at lower ground floor level and this will have some impact on the office windows at lower ground floor level. The windows at lower...
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