Simon Kverndal QC v London Borough of Hounslow Lend Lease Residential (CG) Plc (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 28 October 2015 |
| Neutral Citation | [2015] EWHC 3084 (Admin) |
| Docket Number | Case No: CO/2197/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 October 2015 |
and
[2015] EWHC 3084 (Admin)
The Honourable Mr Justice Supperstone
Case No: CO/2197/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Daniel Kolinsky QC and Luke Wilcox (instructed by Richard Buxton Environmental & Public Law) for the Claimant
Daniel Kolinsky QC and Luke Wilcox (instructed by Richard Buxton Environmental & Public Law) for the Claimant
Hearing dates: 29–30 September 2015
Introduction
The Claimant renews his application for permission to apply for judicial review of a decision of the Defendant, the London Borough of Hounslow ("the Council") of 2 April 2015 to grant planning permission to the Interested Party, Lend Lease Residential (CG) plc ("Lend Lease") for development at 408–435 Chiswick High Road, Chiswick, London W4 5TF ("the Site"), comprising:
"comprehensive redevelopment of the site for residential led mixed use development, including the change of use and alterations and additions to Empire House to residential accommodation (C3) including at plant level with recladding and addition of balconies to the existing tower, provision of residential floor space across the remainder of the site including a erection [sic] of a 7/8 storey block and four 3-storey town houses on Essex Place and a 5-storey block on the corner of Essex Place and Acton Lane, creating a total of 137 dwellings, retention and additions to the existing commercial space (A1 to A3 uses) including additional storeys to existing units, landscaping works and improvements to the public realm, cycle parking and creation of on and off-street parking."
under application reference 00248/408–430/P1 ("the Permission").
On 23 June 2015 Dove J refused permission on the papers. On 29 July 2015 Patterson J directed that the Claimant's renewed application for permission to apply for judicial review be heard at a rolled-up hearing.
Factual Background
On 11 May 2014, prior to submitting the Application, Lend Lease sought and secured from the Council prior approval for the exercise of permitted development rights under Class J of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995. The permitted development rights secured under Class J related to the change of use of Empire House only.
On 7 August 2014 Lend Lease made the Application. The Application was accompanied by a number of documents including a Planning Statement, a Design and Access Statement, and a Heritage Report.
On 25 November 2014 the Claimant submitted an objection to the Proposal.
On 28 November 2014 the Council published, on the webpage for the Application, further "winter views of" the proposal submitted by Lend Lease. Shortly thereafter Mr Christopher Chauncy, a local resident and objector to the proposal, telephoned the Council to enquire as to the late appearance of the further material, and asked for further time to make representations on this new evidence. He was advised that no additional time would be given; this was confirmed to him in a subsequent conversation with Mr Shane Baker of the Council.
At some point after the receipt of the Application the Council's officers requested that Lend Lease provide evidence and clarification as to the length of the vacancy of the existing office accommodation at the Site. Lend Lease provided information in the form of an updated report on the Site by Hanover Green, and various documents on the marketing of the site prepared by DTZ (collectively "the Marketing Evidence"). The Marketing Evidence was published on 20 January 2015 when it was placed on the Council's website.
An Officers' Report was prepared in respect of the Proposal ("the Officers' Report").
The Council's Planning Committee was scheduled to consider the application on 29 January 2015.
On 27 January 2015 Mr Chauncy e-mailed Mr Sean Doran, the Council's Planning Officer with conduct of the Application, to request an adjournment of the Committee meeting on the basis, inter alia, that the Marketing Evidence had been provided at such a late stage that there would be no opportunity for proper consideration of the additional documents if the meeting went ahead as scheduled. On 28 January 2015 Mr Doran replied, indicating that in his view the new material provided further information but did not alter the nature of the original proposal, so that there was no need for re-consultation.
Mr Chauncy made a further request to adjourn at the commencement of the Committee meeting on 29 January 2015. The minutes of the meeting record the Committee's decision to refuse the application (see para 67 below).
On 2 April 2015 the Council granted the Permission.
Legal and Policy Framework
Development Plan and Material Considerations
Section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") provides:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
The legal principles governing the role of the development plan in planning decision-taking are well established.
In the recent case of Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 2489 (Admin), Patterson J emphasised (in the context of a challenge to the Secretary of State's decision) the importance of reaching and recording a judgment in respect of overall conformity with the development plan. She stated:
"27. It is axiomatic that the decision maker does not have to deal with each and every policy that has been raised by the parties during an appeal. That is not the Claimant's case. Rather, it is submitted a finding of compliance or conflict with the development plan and the basis for it needs to be made so that the decision maker can proceed to undertake the planning balance in an informed way. I agree. Such a step is not just form. Rather, it is an essential part of the decision making process, so that not only the decision maker but also the reader of the Decision Letter is aware and can understand that the duty imposed under section 38(6) has been discharged properly by the decision maker.
…
30. … counsel for the Second Defendant, in his review of the cases, emphasised that the decision maker had to make a decision. I agree the decision maker does, but it has to be made on the right basis. That is not just in relation to one policy but against the development plan as a whole. That does not mean a mechanistic approach of judging the proposals against each other and every policy that may be prayed in aid of a development or against it, but an evaluation of main policy areas within the development plan that are relevant to the proposal to be determined and an assessment of how the proposal fairs against them. That can be shortly stated and the process to be followed is for the individual decision maker. But it needs to be clear at the culmination of the decision-taking process what the eventual judgment is against the development plan as a whole. Only by carrying out that exercise can the next step of evaluating the planning balance be properly undertaken."
Emerging plans are material considerations even before they are adopted: Stratford-upon-Avon DC v Secretary of State for Communities and Local Government [2014] JPL 104 at para 5; NPPF, para 216.
Where an applicant for planning permission already has permission to develop the land in some other way, the existence of that "fall back" position may be a material consideration. In Samuel Smith Old Brewery (Tadcaster) v Secretary of State for Communities and Local Government [2009] JPL 1326, Sullivan LJ (with whom the other members of the court agreed) said:
"17. On behalf of the appellant, Mr Village QC, advances two grounds of appeal. …
18. The second ground is linked with the first. Mr Village submitted that the Secretary of State's decision was based on mere speculation, or a 'theoretical' as opposed to a 'real' possibility that an occupier who wished to use the retained buildings with the rail facilities would be found within the period of five years.
19. In support of this second ground of appeal, Mr Village referred to the decision of Brentwood BC v Secretary of State for the Environment (1996) 17 P&CR QBD. In that case the question was whether, in deciding to grant planning permission for the retention of an outbuilding in the green belt, the Inspector had considered whether there was 'a real prospect' that, if planning permission was not granted, then Mr and Mrs Grey would simply demolish the existing building and rebuild it five (rather than two) metres away from the house, in which case the rebuilt outhouse would be permitted development.
20. Mr Christopher Lockhart-Mummery QC, sitting as the Deputy High Court Judge, concluded that the Inspector had failed to make any finding 'as to the real prospect or likelihood of Mr and Mrs Grey actually demolishing the building in whole or in part and re-erecting it' (see p.66). It is important to note that in this context a real prospect is used as the antithesis of 'a merely theoretical' prospect (see p.65 of the judgment and the cases therein incited).
21. In order for a proposal to be a real prospect, it does not have to be probable or likely; a possibility will suffice. It is important to bear in mind that 'fall back' cases tend to be very...
To continue reading
Request your trial
-
Lensbury Ltd and Another v Richmond-Upon-Thames London Borough Council Teddington & Ham Hydro Co-Operative Ltd and Another (Interested Parties)
...EWHC 2660 (Admin), per Rhodri Price-Lewis QC, sitting as a deputy High Court Judge, at paras 22–24; and R (Kverndal) v LB Hounslow [2015] EWHC 3084 (Admin) at paras 63–64; and see also Hampton Bishop Parish Council at paras 41–42). Development Plan Policies The London Plan 23 Policy 7.4 Lo......
-
Hersch Schneck v Secretary of State for Levelling Up, Housing & Communities
...which Sir Anthony Clarke MR and and Toulson LJ agreed; and the judgment of Supperstone J in Kverndal v Hounslow London Borough Council [2016] PTSR 330, paras 17 and 42–53. As Sullivan LJ said in the Samuel Smith Old Brewery case [2009] JPL 1326, in this context a “real” prospect is the anti......
-
Renew Land Developments Ltd v Welsh Ministers
...Toulson L.J. agreed; and the judgment of Supperstone J. in R. (on the application of Kverndal) v London Borough of Hounslow Council [2015] EWHC 3084 (Admin), at paragraphs 17 and 42 to 53). As Sullivan L.J. said in his judgment in Samuel Smith Old Brewery (Tadcaster) v Secretary of State f......
-
R SPVRG Ltd v Pembrokeshire County Council
...Toulson L.J. agreed; and the judgment of Supperstone J. in R. (on the application of Kverndal) v London Borough of Hounslow Council [2015] EWHC 3084 (Admin), at paragraphs 17 and 42 to 53). As Sullivan L.J. said in his judgment in Samuel Smith Old Brewery, in this context a “real” prospect......