West Kensington Estate Tenants and Residents Association and Another v London Borough of Hammersmith and Fulham and Another EC Properties Ltd and Others (Interested parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 09 October 2013 |
| Neutral Citation | [2013] EWHC 2834 (Admin) |
| Docket Number | Case No: CO/6338/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 October 2013 |
and
[2013] EWHC 2834 (Admin)
Mr Justice Lindblom
Case No: CO/6338/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Gregory Jones Q.C. and Ms Sarah Sackman (instructed by Pdc Legal) for the claimants
Mr Russell Harris Q.C. and Mr Richard Turney (instructed by the Solicitor to the London Borough of Hammersmith and Fulham and the Chief Solicitor to the Royal Borough of Kensington and Chelsea) for the defendants
Mr Christopher Katkowski Q.C. and Mr Scott Lyness (instructed by Pinsent Masons LLP) for the first interested party
Mr David Elvin Q.C. (instructed by Ashurst LLP) for the third interested party
Judgment Approved by the court for handing down
(subject to editorial corrections)
Hearing dates: 17, 18 and 19 July 2013
Introduction
In Earl's Court, in west London, major development is planned. A large area of land and buildings is proposed for regeneration. Within it are the exhibition centre and two housing estates, the West Kensington and Gibbs Green estates. It is known now as the Earl's Court and West Kensington Opportunity Area. The claimants in this claim for judicial review, the West Kensington Estate Tenants and Residents Association and the Gibbs Green and Dieppe Close Tenants and Residents Association, together represent about 1,700 people who live in the estates. They are opposed to any project that would involve the estates being redeveloped. In this claim for judicial review they challenge the Earl's Court and West Kensington Opportunity Area Joint Supplementary Planning Document ("the SPD"), which was adopted by the defendants, the Hammersmith and Fulham London Borough Council ("LBHF") and the Council of the Royal Borough of Kensington and Chelsea ("RBKC"), in March 2012. They have also objected to the proposals of the first interested party, EC Properties Limited, for development including the demolition of the estates and the construction of new housing, as well as other uses. The second interested party, Transport for London ("TfL"), has not taken part in the proceedings. But the Mayor of London ("the Mayor") has, on behalf of the third interested party, the Greater London Authority ("the GLA"). The Mayor intends to adopt the SPD as supplementary planning guidance, but has waited for this claim to be dealt with by the court.
The issues for the court
The claimants issued their claim on 18 June 2012. Permission to apply for judicial review was granted on the papers by H.H.J. Sycamore, sitting as a deputy judge of the High Court, on 11 October 2012. The deputy judge was not persuaded that permission should be refused for the claimants' delay, as had been submitted by the parties opposing the claim. He did not, however, grant permission for all five of the claimants' grounds. He refused permission for ground 3, which alleged that LBHF and RBKC had each failed to discharge its public sector equality duty. That ground is no longer pursued. So there are now four grounds, to which I shall refer as grounds 1, 2, 4 and 5.
The main contentions are these: in ground 1, that the SPD ought to have been prepared as an area action plan under regulation 6 of the Town and Country Planning (Local Development) (England) Regulations 2004 ("the 2004 regulations"); in ground 2, that when LBHF and RBKC adopted the SPD they erred in their approach to the provision of affordable housing and, in particular, in the use they made of a study of economic considerations, the "Estates Regeneration Economic Appraisal" ("the EREA"); in ground 4, that the SPD does not conform with the development plan in its provisions for social housing; and in ground 5, that the SPD ought to have been subject to strategic environmental assessment ("SEA") complying fully with the regime for SEA, but was not.
Background
The Opportunity Area straddles the borough boundary, and extends to about 37 hectares: 28 hectares of the North End and Fulham Broadway wards in LBHF's area, and about nine hectares of the Earl's Court ward in RBKC's. It is bounded by Warwick Road and the West London railway line to the east, West Cromwell Road (the A4) to the north, North End Road to the west, and Old Brompton Road and Lillie Road to the south. As well as the exhibition centre and the housing estates, it includes the Seagrave Road car park, to the south of Lillie Road and beside the West London line.
The West Kensington and Gibbs Green housing estates are to the west of the exhibition centre and TfL's depot in Lillie Bridge Road depot. They are owned and managed by LBHF. There is some other residential development in the Opportunity Area, but most of it is in the estates. The West Kensington Estate is the larger of the two. It provides 604 homes, most of them flats. 476 of these dwellings are social rented. About 1,500 people live there. The Gibbs Green Estate provides 98 homes, of which 56 are social rented. About 200 people live there. Some of the dwellings on the estates have been bought under the "Right to Buy" scheme, but most of them — more than three quarters of the total — are social rented. LBHF has recently spent about £15 million refurbishing them, under the Decent Homes Scheme.
The West Kensington and Earl's Court Opportunity Area is one of a number of Opportunity Areas designated in the spatial development strategy for Greater London, the London Plan (2011).
LBHF and RBKC have each prepared and adopted a core strategy: LBHF, the Hammersmith and Fulham Core Strategy of 2011; RBKC, the Royal Borough of Kensington and Chelsea Core Strategy of 2010. Both contain policies for the Earl's Court and West Kensington Opportunity Area.
The SPD was jointly prepared by LBHF and RBKC. It was published after both LBHF and RBKC had resolved to adopt it — LBHF on 19 March 2012, and RBKC on 22 March 2012. It sets out a number of Key Principles for the regeneration of the Opportunity Area, and guidance on each.
On 30 March 2012 LBHF granted planning permission on an application made by EC Properties Limited for planning permission for a residential development to replace the Seagrave Road car park. On 3 September 2012 LBHF decided to enter into a conditional land sale agreement with EC Properties Limited, in which it was agreed that the housing estates would be included in a comprehensive redevelopment in the Opportunity Area. EC Properties Limited applied to both LBHF and RBKC for planning permission for the redevelopment of a site of 28 hectares, including the estates. In LBHF's area 5,845 new "residential units" are proposed, of which 589 are intended to be social rented and 676 of intermediate tenure. In RBKC's area 930 "residential units" are proposed, of which 64 will be affordable, in intermediate tenure. Both LBHF and RBKC have resolved to grant planning permission for these proposals. Decision notices have not yet been issued because the parties are negotiating an agreement under section 106 of the Town and Country Planning Act 1990 ("the 1990 Act").
Ground 1: the lawfulness of the SPD
The statutory provisions
Section 38(2) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") provides that the development plan for any area in Greater London consists of the spatial development strategy, the development plan documents that have been adopted or approved for that area and any neighbourhood development plans made for it.
Section 15 of the 2004 Act requires local planning authorities to prepare and maintain a local development scheme, which must, among other things, specify the local development documents that are to be development plan documents. Development plan documents are subject to specific statutory procedures for their adoption, including independent examination under section 20 of the 2004 Act.
Section 17(3) of the 2004 Act provides that a local planning authority's "local development documents must (taken as a whole) set out the authority's policies (however expressed) relating to the development and use of land in their area". Section 17(7) provides that regulations may prescribe "(za) which descriptions of documents are, or, if prepared are, to be prepared as local development documents", and "(a) which descriptions of local development documents are development plan documents". The relevant regulations at the time of the adoption of the SPD were the 2004 regulations.
Regulation 7 of the 2004 regulations provides that documents in three categories must be development plan documents, namely:
"(a) core strategies,
(b) area action plans, and
(c) any other document which includes a site allocation policy."
Regulation 2(1) defines a "site allocation policy" as "a policy which allocates a site for a particular use or development".
Regulation 6(3) provides that a "document of the description in paragraph (1)(a) is referred to in the following provisions of [the 2004 regulations] as a core strategy". The description given in paragraph (1)(a) is:
"… any document containing statements of —
(i) the development and use of land which the local planning authority wish to encourage during any specified period;
(ii) objectives relating to design and access which the local planning authority wish to encourage during any specified period;
(iii) any environmental, social and economic objectives which are relevant to the attainment of the development and use of land mentioned in paragraph (i);
(iv) the authority's general policies in respect of the...
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