The Queen (on the application of Nicholas Perry) v London Borough of Hackney Newmark Properties Ltd and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 24 October 2014 |
| Neutral Citation | [2014] EWHC 3499 (Admin) |
| Docket Number | Case No: CO/1377/2014 & CO/13423/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 October 2014 |
[2014] EWHC 3499 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Patterson DBE
Case No: CO/1377/2014 & CO/13423/2013
Philip Coppel QC, Alex Goodman and Richard Clarke (instructed by Richard Buxton) for the Claimant
William Upton and Emmaline Lambert (instructed by London Borough of Hackney Legal Services) for the Defendant
Reuben Taylor QC (instructed by Berwin Leighton Paisner) for the First Interested Party
Hearing dates: 14–16 October 2014
Introduction
These are claims for judicial review of two planning permissions granted by the London Borough of Hackney, the defendant, dated 8 August 2013 and 14 February 2014 respectively. Each planning permission was granted in the following terms, namely, for:
"Demolition of buildings on land at Wilmer Place and the rear parts of 193–201 Stoke Newington High Street, with retention of front Stoke Newington High Street façade, in connection with associated planning application for redevelopment to provide a retail unit at ground floor level with 53 units above."
The claimant has lived in Stoke Newington since 2001. He has been an active participant in both planning applications as a co-ordinator of the "Stokey Local" campaign which has opposed recent development proposals at Wilmer Place.
The first interested party is the applicant for planning permission. The second interested party has taken no part in the proceedings. In the rest of this judgement when I refer to the interested party it is to the first interested party.
The proposed development is on a 0.51 hectare site within the district centre of Stoke Newington. The application proposals involve the partial demolition of the buildings on the site and its redevelopment with a 4,142 sq. m. food store on the ground floor with fifty-three residential units above. Nine of those residential units are to be affordable dwellings.
On each occasion the planning application was accompanied by an application for conservation area consent.
The claimant seeks orders quashing each of the planning permissions and conservation area consents. For ease of reference I will refer to the planning permission dated 8 August 2013 as JR1 and that dated the 14 February 2014 as JR2.
Issues
There are 6 main issues. They are:
i) In both applications was there a proper consideration of the viability appraisal with regard to affordable housing in the development?
ii) In both applications was there was a proper assessment of the impact of the development on heritage assets?
iii) In JR1 only, did the defendant fail to adopt and publish on the planning register a screening opinion in accordance with the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the Environmental Impact Assessment Directive and obligations under the EU Treaty?
iv) In JR2 only, did the defendant act unlawfully in failing to provide the claimant with the proposed section 106 obligation to enable the public to comment upon?
v) In JR2 only, did the defendant adopt an erroneous approach to the first grant planning permission in that it failed to direct members' attention in JR2 to the claimant's grounds of challenge in JR1?
vi) In both applications, did the defendant act unlawfully in that it gave inadequate reasons for the way that it proceeded and/or act irrationally?
On 17 December 2013 Collins J granted permission on all grounds in JR1.
On 23 May 2014 I granted permission in JR2 on all grounds but refused the claimant's application for disclosure of documents relating to viability issues. That judgment is at [2014] EWHC 1721. I do not repeat its contents here. In addition, I gave case management directions which included the linking of the two claims so that they were heard together.
On 19 September 2014 an oral application for permission to appeal the disclosure of viability information aspect was refused by the Court of Appeal. Their judgement is to be found at [2014] EWCA Civ 1372.
Factual background
Newmark Properties Limited (IP) first applied for planning permission on land at Wilmer Place and the rear parts of 193–201 Stoke Newington High Street on 9 July 2012 (2012/2228). That was for a larger scheme involving the demolition of buildings on land at Wilmer Place and the rear parts of 193–201 Stoke Newington High Street with a retention of the front of Stoke Newington High Street façade, the construction of a mixed-use development comprising of a 4,142 sq. m. retail unit with 68 residential units above, 6 disabled car parking spaces, cycle stores and refuse stores.
On 6 March 2013 the council prepared a screening opinion under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 and concluded that the proposed development (which by then had been subject to amendment so that 54 residential units were proposed) was not considered likely to have significant effects on the environment by virtue of its nature, size or location.
The defendant's planning officer prepared a report which recommended approval of the application. On 3 April 2013 members of the planning subcommittee rejected that recommendation and refused the application for the following three reasons:
i) The proposal, by reason of its siting, design and massing would fail to respond to the local character of the site and result in substantial harm to the character and setting of the surrounding heritage assets, which harm would not be outweighed by any associated public benefits from the development.
ii) The proposal, by reason of its siting, design and massing would result in substantial adverse impacts upon natural habitats and biodiversity within Abney Park Cemetery, which harm would not be outweighed by any associated public benefits from the development.
iii) The proposal would fail to provide an adequate proportion of family sized units and would not provide a sufficient mix of smaller and larger units to fully meet housing need in the borough.
On 7 May 2013 the IP submitted its second application (2013/1583). That was for a mixed-use development comprising 4,142 sq. m. with fifty-three residential units above, six disabled car parking spaces, cycle stores and refuse stores. Nine of the units were to be provided as affordable housing (representing 17% of the total residential units). Revisions were designed to overcome the council's reasons for refusal in relation to the first planning application. The revised scheme reduced the overall volume of building and increased the distance from the boundary of the Abney Park Cemetery and varied the mix of the housing units.
No environmental impact assessment (EIA) was submitted with the application. No screening opinion was sought from the defendant.
On 31 July 2013 an officer's report was presented to members of the planning subcommittee with a recommendation to grant planning permission for the applications. The subcommittee resolved to grant planning permission for the application subject to a section 106 agreement and conditions. On 8 August 2013 planning permission was granted. That forms the subject matter of JR1.
On 25 September 2013 the IP made its third application for planning permission (application 2013/3186).
The third application was the subject of a separate officer report which recommended a conditional grant of planning permission. That was considered by the planning subcommittee on 11 December 2013. The sub-committee resolved that, subject to the completion of a satisfactory section 106 agreement, planning permission should be granted. As part of the officer's report there was a recommendation that there should be a mechanism for the further review of financial viability of the scheme if the planning permission was not implemented within twelve months of its grant.
The council's planning subcommittee resolved to grant planning permission which was duly issued on 14 February 2014, after the completion of the section 106 agreement, and which forms the subject matter of JR2.
Ground One: Was there a proper consideration of the viability appraisal which led to the defendant accepting 17% of affordable housing?
This ground applies to both planning permissions granted by the defendant. It has been developed during the course of the proceedings to consist of, what are described by the claimant, as seven sub-points. First, I deal with the policy background.
Policy background
The development plan for the purposes of this ground consists of the London Plan, adopted 2011, and the Hackney Core Strategy adopted 2010.
In the London Plan policy 3.8 deals with housing choice. It prescribes that in the Local Development Framework (LDF) preparation and in planning decisions boroughs should ensure that developments offer a range of housing choices and, in meeting those, provide affordable family housing as a strategic priority in LDF policies.
Policy 3.12 is entitled 'Negotiating affordable housing on individual private residential and mixed use schemes'. Paragraph B of the policy reads:
"Negotiations on sites should take account of their individual circumstances including development viability, the availability of public subsidy, the implications of phased development including provisions for reappraising the viability of schemes prior to...
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