The Queen (on the application of Helen Kinsey) v London Borough of Lewisham
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 11 July 2022 |
| Neutral Citation | [2022] EWHC 1774 (Admin) |
| Docket Number | Case No: CO/3328/2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Year | 2022 |
and
[2022] EWHC 1774 (Admin)
Mr Justice Fordham
Case No: CO/3328/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Harwood QC (instructed by Hodge Jones & Allen LLP) for the Claimant
Saira Kabir Sheikh QC and Charles Merrett (instructed by Womble Bond Dickinson (UK) LLP) for the Defendant
Sasha White QC and Matthew Henderson (instructed by City Solicitor) for the Interested Party
Hearing date: 9/6/22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Part 1. Introduction
This judicial review case is a sequel. On 18 May 2021 Lang J gave judgment [2021] EWHC 1286 (Admin) (the “First Judgment”) in favour of the Claimant. She quashed (see First Judgment §158) a decision reached by the Planning Committee (the “Committee”) of the Defendant (the “Council”). That decision had granted an application for planning permission made by the Interested Party (the “IP”). The matter was ‘remitted’ to the Council by Lang J, so that the application for planning permission could be considered again, in accordance with the law. At a meeting on 29 June 2021 the Committee resolved to grant the IP's application for planning permission. Planning permission was formally granted on 18 August 2021. The questions in this sequel case are about whether the Defendant has acted lawfully in granting planning permission, the second time around. Following an exchange of pre-action correspondence (on 17 and 27 September 2021) the Claimant (on 29 September 2021) commenced this claim. The pleaded claim impugned the decision granting planning permission on three grounds. By an application for permission to amend (dated 1 June 2022), the Claimant seeks to add a fourth ground. On 10 February 2022 Sir Duncan Ouseley directed a “rolled up” hearing. That hearing took place before me in-person, in open court. Prior to the hearing, I granted an application made by the Claimant's representatives – unopposed – for a hybrid hearing to allow members of the public with an interest in the proceedings to observe the hearing remotely. The Court had evidence that an active member of the Sydenham Hill Residents Steering Group (“RSG”) could not – in light of a severe medical condition and the pandemic – attend the hearing, as they wished to do, unless able to attend remotely. That was a good reason for remote-observation arrangements which, since they were to be in place, I extended to others who wished to observe remotely. At and for the hearing, I was assisted by the industry and skill of Counsel for the Claimant (Mr Harwood QC) for the Council (Ms Kabir Sheikh QC and Mr Merrett) and for the IP (Mr White QC and Mr Henderson), and by all other members of their teams, to whom I express the Court's appreciation.
Background
I gratefully take this “Background” section – almost in its entirety – from passages in the First Judgment (especially §§1–3, 13, 16, 19, 22–33). The grant of planning permission is for the demolition of Mais House and Otto Close garages, and for redevelopment to provide 110 residential units in a part four, six and seven storey building and a part two and three storey terrace building, and associated development, at Sydenham Hill Estate, London SE26 (“the Site”). The Council is the local planning authority for the Site. The IP is the owner of the land and the applicant for planning permission. The Claimant lives with her family in a rented flat in Otto Close which is particularly affected by the proposed development. She is a member of the RSG established by the IP in December 2018 to ensure meaningful resident consultation and effective participation in all aspects of appraising and implementing the proposals for the Site. The Site is 1.35 ha in size, on the Sydenham Hill Estate.
The land on which the Sydenham Hill Estate stands is on the eastern side of Sydenham Hill. It was granted to the IP in 1819. Part of the land was appropriated to the IP's local authority housing function in 1953, under statutory powers. Sydenham Hill Estate is 2.67 ha in size. It comprises Lammas Green, Mais House, Otto Close, a Community Hall, and a hardstanding ball court/play area. It is set in landscaped wooded grounds, on a steep slope. Lammas Green was constructed between 1955 and 1957. It comprises three terraces set around a village green, with views of the North Downs, and two blocks of flats to the west and north which enclose the green and serve as a buffer to the road. In 1998 it was listed Grade II, as being of special architectural and historic interest. The Sydenham Hill Community Hall and Retaining Walls were also listed Grade II at that time. Mais House was constructed in 1973 and is a part two, three and four storey block. It comprises 63 sheltered housing units for older people. A Sheltered Housing Review carried out by the IP between 2014 and 2016 indicated that the limited accommodation offered at Mais House did not meet modern requirements and was unpopular with the older people for whom it was designed. The option of refurbishing Mais House was considered to be uneconomic. The IP decided to close Mais House in 2016, with a view to re-development, and re-housed all residents. The block was empty by June 2018. Otto Close had been constructed in 1976. It comprises 30 two storey residential units, which are in use. Nearby there are 38 single storey residential garages set in 7 rows, of which only about one third are in use. Lammas Green and Mais House are located within the Sydenham Hill/Mount Gardens Conservation Area (“the CA”). Most of the dwellings and garages in Otto Close fall outside the CA. Thus, the western uppermost part of the Site is within the CA. Lammas Green is an Area of Special Character, characterised by large detached houses with gardens. There are many mature trees which provide a visual and historic link with Sydenham Hill Wood, a large and important remnant of the former Great North Wood which formerly stretched across this part of south London. To the west is Dulwich Wood which is designated as Metropolitan Open Land and a Local Nature Reserve (“LNR”) of Metropolitan Importance.
The IP had undertaken wide pre-application consultation with the Greater London Authority, the Council's Design Review Panel (“DRP”), local residents, residents' associations, amenity groups and elected representatives. Following discussions with the Council, the IP had received pre-application advice from the planning officer, Mr David Robinson, who is a Principal Planning Officer in the Council. The DRP had considered a series of draft proposals, and made critical comments on them. As a result of the responses which it received, the IP made a number of amendments to its pre-application proposal. The IP had applied for planning permission on 3 January 2020. In the public consultation, some 209 objections were recorded as received. They included representations from local residents and residents' associations, the Forest Hill Society, the Sydenham Society, the Council for the Preservation of Rural England (CPRE) London, the Sydenham Hill Ridge Forum, and the Twentieth Century Society (“TCS”). The number of objections had met the threshold in the Council's Statement of Community Involvement (“SCI”) for a local meeting to be held. It had taken place on 27 August 2020, virtually (because of the pandemic). On 28 January 2020, the Council's Senior Conservation Officer (the “SCO”), Ms Joanna Ecclestone, had sent to the planning officer a document headed “Conservation comments” (“the SCO Document”: Apx 1 to the First Judgment). It described the CA and the listed buildings, and non-designated heritage assets, and the impact of the proposal. The SCO's formal recommendation stated:
I have objections due to the harm caused to the CA, the setting of listed buildings and the setting of locally listed buildings, chiefly caused by the height and position on site of the proposed buildings. I do not consider that the harm is adequately justified by the aim for highly dense scheme or its viability .
An Officer Report (“OR”), drafted by the planning officer, had summarised the application and the consultation responses and recommended the grant of planning permission. The OR had contained these conclusionary paragraphs:
641 The Proposal would provide a substantial quantum of socially rented residential units to help meet the Borough's housing needs. This is a significant benefit to be weighed in the planning balance as the proposal will assist in addressing its housing need which is set to increase substantially under the draft London Plan housing targets .
642 The proposals reflect the principles of the highest quality design, ensuring an exemplary built environment for visitors and residents. The impacts upon heritage assets in the vicinity of the application site have been fully considered and it is concluded that less than substantial harm will be caused. The officer assessment has also identified some impacts upon occupants of neighbouring residential properties in relation to loss of light and overshadowing. However, on balance the benefits and planning merits of the scheme are considered to substantially outweigh any harm identified .
643 The proposed development would also result in the delivery of significant public realm enhancements, specifically through the delivery of the communal amenity space. Improvements to the existing highways network would also be secured by legal agreement .
644 In conclusion, the proposed development is...
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