The Mayor of London v The Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 12 May 2020 |
| Neutral Citation | [2020] EWHC 1176 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4849/2019 & CO/4851/2019 |
| Date | 12 May 2020 |
[2020] EWHC 1176 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mr Justice Holgate
Case No: CO/4849/2019 & CO/4851/2019
Mr Douglas Edwards QC and Ms Sarah Sackman (instructed by Transport for London) for the Claimant
Mr Richard Turney (instructed by Government Legal Department) for the First Defendant
Mr John Steel QC and Ms Victoria Hutton (instructed by Sharpe Pritchard) for the Second Defendant
The Third Defendant did not appear and was not represented
Hearing dates: 22 nd – 23 rd April 2020
Approved Judgment
Introduction
The Mayor of London (“the Mayor”) challenges by statutory review under s.288 of the Town and Country Planning Act 1990 (“TCPA 1990”) two decisions of the First Defendant, the Secretary of State for Housing, Communities and Local Government (“the Secretary of State”) issued on 31 October 2019: (a) allowing the appeal of the Second Defendant (“the School”) against a refusal of planning permission by the local planning authority, the London Borough of Harrow (“LBH”) on the direction of the Mayor and (b) ordering the Mayor to pay to the School its costs of the inquiry proceedings (pursuant to s.250(5) of the Local Government Act 1972 and ss.78 and 320 pf TCPA 1990). The proposal related to substantial development at Harrow School.
The School is located on the slopes and on the crest of the settlement of Harrow-on-the-Hill. The School's estate occupies a substantial part of Harrow Hill, about 122 ha. The School's buildings are set within relatively open areas and landscaped grounds. They comprise buildings from different eras, but in the main the architecture is Victorian and Twentieth Century. The concentration of buildings becomes more dense towards the crest of the hill. A number of listed and non-listed school and other buildings occupy the hill to the north and west of the appeal site.
The appeal site, 4.7 ha in area, lies on the eastern side of the hill on its lower slopes. It contains the existing sports building (footprint 1,515 sqm and floorspace 3,095 sqm), a science building, office accommodation, a sports pavilion and grassed areas. The levels drop across the site from west to east, representing a step incline of 1 in 7, and a vertical difference of about 36m.
To the east of the appeal site there are outdoor sports facilities. To the south lies Harrow Park, which contains the School's golf course. These areas form part of a Registered Historic Park and Garden and the Harrow Park Conservation Area. To the west, north and north-west of the appeal site lies the Harrow School Conservation Area.
In summary, the proposed development comprises the demolition of a number of buildings within the appeal site, including the existing sports building, and the construction of a new sports building (footprint 4,923 sqm and floor area 7,269 sqm on 3 levels) and a new science building (floor area 3,675 sqm on 3 levels), a new landscaping core, new visitor car parking and various alterations to and relocations of facilities.
The eastern part of the appeal site and the surrounding open land to the east and south is designated Metropolitan Open Land (“MOL”), to which Green Belt development control policies are applicable. The new sports building is proposed to be cut into the slope of the Hill. It would lie within the MOL. The science building proposed to be located just to the west would lie outside that designation.
The only part of the proposal to which the Mayor objected was the sports building.
In his report to the Secretary of State the Inspector identified a number of heritage assets affected by the proposal. They comprised listed buildings: St Mary's Church, the Vaughan Library, the Chapel, New Schools, the Butler Building, and the Music Building; the Harrow School Conservation Area; and the Harrow Park Registered Park and Garden and Conservation Area (IR 69). The only element of the proposal which was said to be harmful to the setting or to the character and appearance of these assets was the proposed sports building.
The Inspector identified what he considered to be the main issues in the appeal. It is important to note that he had previously set these out for the parties in his “pre-inquiry note” and repeated them orally at the beginning of the inquiry. He recorded that the main parties agreed that these were “the salient main matters in dispute”. The Mayor confirmed that he does not challenge IR 3 which defined the main issues as follows:-
“(i) Whether the proposed development is inappropriate development in Metropolitan Open Land (MOL) for the purposes of the adopted Development Plan, London Plan, the National Planning Policy Framework, and any other relevant document, and;
(ii) The effect of the proposal on the openness of the MOL, and;
(iii) Whether the proposed development would preserve the setting of nearby designated heritage assets, and preserve or enhance the character or appearance of the Harrow School Conservation Area, and if not whether any public benefits would outweigh any harm, and;
(iv) If the proposal is inappropriate development, whether the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances required to justify it” (emphasis added).
It is significant that in issue (iv) the Inspector correctly described the planning balance which had to be struck when applying MOL policy.
However, a good deal of the Mayor's challenge to the decision on the planning appeal related to a part of his case at the inquiry which had raised a subject falling outside those main issues, namely whether the proposal would cause harm to heritage assets and thereby harm to one of the purposes of the MOL.
This judgment is structured in the following way (with paragraph numbers):-
Planning policies
| Planning Policies | 12 – 23 |
| The statutory framework | 24 – 28 |
| A summary of the process leading to the inquiry | 29 – 51 |
| The decision on the planning appeal | 52 – 68 |
| General legal principles for statutory review | 69 |
| The challenge to the decision on the planning appeal | 70 |
| Ground 1 | 70 – 93 |
| Ground 2 | 94 – 103 |
| Ground 3 | 104 – 134 |
| Conclusion on the challenge to the decision on the planning appeal | 135 |
| The decision on the application for costs | 136 – 145 |
| The challenge to the costs decision | 146 |
| Ground 3 | 147 – 150 |
| Ground 1 | 151 – 155 |
| Ground 2 | 156 – 157 |
| Paragraphs 31 and 33 of the Inspector's report on costs | 158 – 160 |
| Conclusions on the challenge to the costs decision | 161 – 168 |
| Conclusions | 169 – 170 |
The statutory development plan for the purposes of s.70(2) of TCPA 1990 and s.38(6) of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”) comprises the London Plan 2016 (“LP”), the Harrow Core Strategy 2012 (“CS”) and the Harrow Development Management Policies DPD 2013 (“DMDPD”).
The London Plan 2016
By s.38(1) and (2) of PCPA 2004 the development plan for a London Borough includes the “spatial development strategy”, produced and published under s.334 of the Greater London Authority Act 1999. The LP is that strategy. The statutory scheme requires the plan to include the Mayor's “policies” for the development and use of land in Greater London and a “reasoned justification” for the strategy. That reasoned justification is relevant to the interpretation of the policy, but is not itself policy. It does not therefore have the force of policy, nor can it “trump policy”. Accordingly, as Mr. Edwards QC pointed out for the Mayor, a development proposal cannot be said to fail to accord with the development plan simply because it breached a criterion contained solely in the reasoned justification ( R (Cherkley Campaign Limited) v Mole Valley District Council [2014] EWCA Civ 567 at [16]).
Policy 7.17 of the LP states:-
“ Strategic
A. The Mayor strongly supports the current extent of Metropolitan Open Land (MOL), its extension in appropriate circumstances and its protection from development having an adverse impact on the openness of MOL.
Planning decisions
B. The strongest protection should be given to London's Metropolitan Open Land and inappropriate development refused, except in very special circumstances, giving the same level of protection as in the Green Belt. Essential ancillary facilities for appropriate uses will only be acceptable where they maintain the openness of MOL.
LDF preparation
C. Any alterations to the boundary of MOL should be undertaken by Boroughs through the LDF process, in consultation with the Mayor and adjoining authorities.
D. To designate land as MOL boroughs need to establish that the land meets at least one of the following criteria:
a. it contributes to the physical structure of London by being clearly distinguishable from the built up area
b. it includes open air facilities, especially for leisure, recreation, sport, the arts and cultural activities, which serve either the whole or significant parts of London
c. it contains features or landscapes (historic, recreational, biodiversity) of either national or metropolitan value
d. it forms part of a Green Chain or a link in the network of green...
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