Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
THE HONOURABLE MR JUSTICE PITCHFORD
Between:
ORGANISATION FOR PROMOTION OF ENVIRONMENTAL NEEDS | Claimant |
- and - | |
LONDON BOROUGH OF TOWER HAMLETS BISHOPSGATE APARTMENTS LLP | Defendant Interested Party |
Mr Gregory Jones (instructed by Dowse & Co) for the Claimant
Mr Meyric Lewis (instructed by Legal Services, Tower Hamlets) for the Defendant
Mr Timothy Corner QC & Miss Sarah-Jane Davies (instructed by Denton Wilde Sapte) for the Interested Party
Hearing dates: 8 December 2008
Judgment
Mr Justice Pitchford:
This is a challenge by the claimant to the grant by the defendants of planning permission to the interested party on 21 May 2008.
As originally formulated there were three grounds of claim:
The case officer’s report failed to inform the planning committee that the defendant’s Development and Conservation Team opposed the application. There were 2 consequences of this failure: (a) the process was procedurally unfair and (b) the planning committee omitted from its deliberations a material consideration.
The planning committee failed to apply a relevant planning policy CP48.
The public consultation on the proposal was defective.
The application was considered on the papers by Frances Patterson QC sitting as a deputy judge on 13 October 2008. She found there was no arguable substance in the first and third grounds. Ground two was arguable. However, the claimant had failed to commence the proceedings promptly. Accordingly, permission to proceed to a review was refused. The application has been renewed on grounds (i) and (ii). Ground (iii) has been abandoned. However, the claimant now seeks to amend the claim to add a substituted ground (iii). The claimant argues that the Reasons given for the grant of permission were inadequate.
At the oral hearing before me the claimants were represented by Mr Gregory Jones, the defendant by Mr Meyric Lewis and the interested party by Mr Timothy Corner QC and Miss Sarah-Jane Davies.
The claimant is a not-for-profit membership company limited by guarantee. It was formed in 2004 to represent the interests of its members comprising individuals who live or work in the area of Shoreditch and Bethnal Green. It is known by the acronym OPEN. OPEN Shoreditch is an unincorporated association of members interested in this specific development. There is a cross-over of membership between the two organisations. For present purposes only I can identify both organisations with the claimant.
The development site is situated at 32-42 Bethnal Green Road, London E1 close to the junction between Bethnal Green Road and Sclater Street.
The Application
The development proposal was for the clearance of a site 0.6 hectares in area and the construction of buildings between 4 and 25 storeys high for commercial and residential use.
The proposal was made by the interested party, Bishopsgate Apartments LLP, a joint venture between Telford Homes plc and GenInvest plc, a wholly owned subsidiary of Genesis Housing Group plc.
The proposed development was adjacent to the Fournier Street and Boundary Estate Conservation Areas. The development included two tall buildings 20 and 25 storeys high. For these reasons the proposal attracted a degree of controversy.
The defendant took part in pre-application consultation and discussions with Tower Hamlets and the Greater London Authority for some 18 months before the proposal was submitted to the committee for approval.
The proposal was considered by the Strategic Development Committee on 13 March 2008. Members were assisted by the report of the Corporate Director Development and Renewal. The report was prepared by a case officer, Mr Shay Bugler. At the meeting the proposal was introduced by the Head of Development Decisions. Opposition was expressed by, among others, two members of the OPEN organisation, Brendan Pinch and Amanda Reynolds. After explanation and discussion the application was approved by 5 votes to 3 subject to the completion of a section 106 agreement.
Permission was issued on 21 May 2008.
Internal Consultation and Report
The defendant’s Directorate of Development and Renewal included members of several subsidiary departments or teams including Housing, Development Control, Building Control, Development Schemes, Strategic Policy, Land Charges and Design and Conservation. The director consulted relevant teams for the purpose of preparing his report and advice to the Strategic Development Committee.
In the course of that consultation a member of the Design and Conservation Team, Mandar Puranik, compiled an email to Mr Bugler dated 22 February 2008. In it Mr Puranik expressed the following views about the proposal:
Layout, public realm and amenity: Mr Puranik was favourable to the design subject to improvements in some details and the provision of amenity spaces in the form of courtyards
Bulk, massing and height: Mr Puranik was concerned that Block A would overshadow Bethnal Green Road. It would dwarf a former public house, a Grade II listed building at no. 25 Bethnal Green Road.
Character of Conservation Areas and listed buildings: Mr Puranik described the nearby conservation areas at Fournier Street and Boundary Estate adopted by Tower Hamlets in February 2007. He had examined the sight lines at street level between the Conservation Areas, the listed buildings and the site of the proposed development. He expressed the view that the proposed Block A would be out of character. He thought the northern elevation was a “banal response to one of the unique townscapes of London”. The southern elevation, predominantly glazed, would “harm character of the area by its bulk, orientation and slab like proportions”. While there were redeeming features in the design Mr Puranik nevertheless concluded that an historic townscape would be permanently damaged.
The development was prejudicial to the emerging plan for development of the nearby Bishopsgate Goodsyard. Mr Puranik concluded that the site did not justify a tower of the proposed scale. The architectural quality was not particularly high. There were what he described as “key benefits” but they did not in his view offset the disadvantage in design, mass, scale, height and use of materials. That view implied that the development did not comply with planning policy, in particular policies DEV1, DEV2 and DEV8 of the Tower Hamlets Unitary Development Plan 1998, policies 4B1, 4B3, 4B8 and 4B9 of the London Plan, CP48 and DEV27 of the Interim Planning Guidance Local Development Framework Submission Document, and Planning Policy Guidance Note 15: Planning and the Historic Environment.
The Directorate, having considered the submission of Mr Puranik, disagreed. A summary of its advice is at paragraph 2.1 of the report at page 40 of the bundle. The proposal was in line with policy 3A.3 of the London Plan and HSG1 of the Council’s Interim Planning Guidance 2007 which encouraged the development of available sites. In its view the streetscape would be enhanced, amenity would be improved, the height, scale, bulk and design of the building were acceptable and “in line with GLA and Council criteria for tall buildings: Planning Policy Guidance 15, policies 4B1, 4B5, 4B8, 4B9 and 4B15 of the Consolidated London Plan (2008), policies DEV1 and DEV2 of the Council’s Unitary Development Plan 1998 and policies DEV1, DEV2, DEV3, DEV27, CON2 and CON 5 of the Council’s Interim Planning Guidance (2007), which seek to ensure buildings are of high quality design and suitably located”.
At paragraph 6 of the report the Directorate emphasised the consultation response. Paragraph 6.1 read:
“The views of officers within the Directorate of Development and Renewal are expressed in the Material Planning Considerations section below”.
It is submitted by Mr Jones, on behalf of the claimant, that this sentence must have or at least arguably would have been regarded by the committee as confirmation that the Design and Conservation team held views similar to those expressed by the Directorate in the Report. If so, they were, in the light of Mr Puranik’s email seriously misled.
The Directorate noted the support for the development by the GLA, subject to amendments which had subsequently been addressed by the developer.
The Report drew attention to the objections made by English Heritage. They are listed as follows:
“(a) Impact on Conservation Area and Listed Buildings
6.11 The proposal would be detrimental to the character and appearance of the Brick Lane/Fournier Street Conservation Area.
6.12 The proposal would be detrimental to the setting of various nearby listed buildings.
6.13 The proposal is also potentially prejudicial to the emerging Bishopsgate Goodsyard Masterplan.
6.15 English Heritage has issues with the lack of pre application involvement with a scheme which has fundamental implications for the historic environment.
6.16 The proposal would, by virtue of its scale and massing, be significantly detrimental to the character and appearance of these Conservation Areas. Important conservation area views including those along Cheshire Street and Bacon Street as well as Bethnal Green Road (part of which is included in the Brick Lane/Fournier Street Conservation Area) would be significantly harmed.
6.17 The site boundary abuts the rear of No. 149 Brick Lane which is Grade II listed. The proposed development, by virtue of its scale and mass, would be detrimental to the setting of this building along with that of other Grade II buildings including the nearby Knave of Clubs Public House at 25 Bethnal Green Road, the terrace of shops and flats at 123-159 (odd) Bethnal Green Road and various listed buildings within the Boundary Estate Conservation Area
(b) Impact the proposal has on Bishopsgate Goodsyard
6.18 The site is adjacent to the former Bishopsgate Goodsyard which includes the Grade II listed Braithwaite Viaduct. A masterplan framework is currently being evolved for the Courtyard sites. This draft document envisages buildings stepping down in scale from Norton evaluation of the scheme should await the publication of the final masterplan. English Heritage are concerned that, should the scheme be granted permission, it may restrict the development options around the Braithwaite Viaduct, thereby reducing the chances of creating an acceptable setting for the viaduct.”
At paragraph 7 the Report summarised local objections, including at paragraph 7.10 the observation that the height, bulk and design quality, including materials, would impact negatively upon the surrounding area.
Responses to the consultation on the amended scheme produced objections summarised at paragraph 7.25. They included the complaints that the proposal would set an undesirable precedent for tall buildings in the area and the design and finishes of the buildings were of poor quality.
The Directorate listed at paragraph 8 the main planning issues raised by the application. These included density and design, the issues chiefly relevant to the objections to the application.
The Directorate advised at paragraphs 8.7-8.18 that a high density mixed use development could be supported at the proposed location in accordance with the London Plan, the Council’s Interim Planning Guidance (2007) and the Unitary Development Plan 1998.
Advice upon the issues of Design, Tall Buildings, Impact and Conservation was provided at paragraph 8.35-8.60 of the Report. At paragraph 8.35 it was said “The existing industrial development on the site does little to make an active contribution to the urban development. The Council’s Planning Department, however, is of the opinion that the proposed building’s height, scale, bulk and quality of design are appropriate for this location”.
Paragraph 8.36 and 8.37 stress the requirement for good design in the consolidated London Plan and policies DEV1 and DEV2 of the Unitary Development Plan and Interim Planning Guidance.
Paragraph 8.39 drew attention to several requirements of DEV27 of the Council’s Interim Planning Guidance which applied to the development of tall buildings. They are listed in bullet point form as follows:
• “The architectural quality of the building is considered to be of a high design quality, demonstrated in its scale, form, massing, footprint, material & relationship to other buildings.
• Presents a human scaled development at the street level.
• The wind and micro climate testing has been undertaken and concludes that the impact on the microclimate of the surrounding area, including the proposal site and public spaces, will not be detrimental.
• Demonstrates consideration of sustainability throughout the lifetime of the development, including the achievement of high standards of energy efficiency, sustainable design, construction and resource management.
• The scheme will contribute positively to the social and economic vitality of the surrounding area at the street level through its proposed mix of uses.
• Incorporates principles of inclusive design.
• The site is located in an area with good public transport access.
• Takes into account the transport capacity of the area, and ensure the proposal will not have an adverse impact on transport infrastructure and transport services.
• Improves permeability with the surrounding street network and open spaces.
• The scheme provides publicly accessible areas, including the ground floor non residential uses and public realm”.
The Directorate expressed the opinion in paragraph 8.40 that the proposal presented a positive design for residential use, high quality of materials and detail, sky gardens and winter gardens.
Paragraphs 8.40 to 8.48 drew attention to policies relevant to the issue of siting tall buildings. The London Plan encouraged tall buildings in appropriate locations, particularly when they provided the highest quality of design, an attractive landmark and acted as a catalyst for regeneration. It was noted that CP48 of the Council’s Interim Planning Guidance permitted consideration of proposals for tall buildings outside the tall building cluster locations, as this proposal was, provided there was adequate justification for the development.
The Report identified the presence of several tall buildings in the general area of the site and two in particular under development in Bishopsgate.
Attention was drawn specifically to the contents of the GLA stage 1 report upon the proposal at paragraph 8.47. It was the opinion of the authors that:
“the design response has been derived from a rigorous urban design assessment and has evolved through a number of iterations to take account of microclimate, adjoining conservation areas and other constraints. In particular, the massing and orientation result in a striking and contemporary form rising at the apex of the intersection between Wheeler Street and Bethnal Green Road looking east. The proposed form of the tall building is therefore an appropriate design response to the site’s context creating an attractive landmark building which will add positively to London’s skyline. It will also contribute to the maximisation of the site’s potential and the creation of good quality public realm.”
Complaint is made that the report failed adequately to draw the committee’s attention to the requirements of DEV27 and CP48 of the Council’s Interim Planning Guidance.
DEV27 contained 30 paragraphs of planning considerations applying to the siting of tall buildings. The principal relevant considerations were summarised for the committee as I have extracted them from paragraph 8.39 of the report. What was not included in the list was the guidance at DEV27.3 which reads:
“Where the site is outside a location identified for tall building clusters in CP48, demonstrate the consideration of built form design alternatives other than tall buildings.”
CP48 identified the tall building cluster locations referred to in DEV27 and contained the following at paragraph 2: “The Council may consider proposals for tall buildings in locations outside …… if adequate justification can be made for their development.” This is the guidance extracted at para 8.43 of the report. What the report did not do was advise the committee of the guidance to applicants at DEV27.3, nor place before them the issue whether they should first require the developer to examine alternative built form designs before considering granting the present tall building application. It is this omission which led the deputy judge to conclude that the committee arguably failed to take into account a material consideration.
The report, at paragraphs 8.49-8.60, identified the heritage issues which applied to the location. There was a requirement in PPG 15 to have special regard to preservation of the setting of listed buildings, in the London Plan Policy 4B to protect historic assets and environment, and in Policy CON1 of the Interim Planning Guidance not to create an adverse impact upon the setting of a listed building. The Directorate proceeded to examine the effect of the proposed development upon sight lines, particularly to and from the adjoining conservation areas and listed buildings. It expressed views contrary to those of Mr Puranik, that the development would enhance visual interest and that its impact would not affect the conservation areas or listed buildings adversely or unduly so. It concluded as follows:
“8.61. The Council acknowledges that the proposal will affect the townscape generally. This area includes several heritage assets whose setting would be affected by the buildings and in particular the taller element of that scheme. A significant part of the tower will be visible from one significant, public open space and to a limited degree from other areas. However, the Council considers that the stepping down of the south tower provides visual interest and articulation within the wider townscape. Views of the development from the adjacent Brick Lane/Fournier Street Conservation Area provide visual interest to the townscape and as such, the development is considered acceptable on these grounds”.
In a supplementary report prepared for the planning meeting on 13 March 2008, attention was drawn to amendments made to the design scheme and to the implications of proximity to the Bishopsgate Goodsyard site which lay within the London Borough of Hackney. The site had been identified as suitable for tall buildings subject to constraints. The GLA’s draft City Fringe Opportunity Area Planning Framework of February 2008 identified both the Goodsyard and the present development site as suitable for the construction of tall buildings.
The Meeting
At the meeting Mr Pinch and Ms Reynolds drew attention to the density, mass and shadowing effect of the development upon the conservation areas and listed buildings. A minute of the meeting records that members asked a number of detailed questions on these and other matters. Members were provided with computer generated images demonstrating the scale of the development against existing buildings and proposed further development. They were already, of course, familiar with the area.
Members resolved to issue planning permission subject to the completion of a section 106 agreement designed to secure affordable housing targets and a substantial financial contribution towards secondary mitigation for local amenities and services.
Post-meeting objections
On 5 April 2008 OPEN Shoreditch wrote a 20 page letter to the defendant. It was asserted that the proposal was contrary to planning policy and that the planning report and planning officer “failed to present relevant information to the SDC and so the resolution was passed without the SDC having considered all relevant information…” Attention was drawn to the contents of DEV27 and CP48 of the Council’s Interim Planning Guidance for tall buildings and section 4B of the London Plan. It was argued that the proposed development was in breach of the policy and guidance. It was asserted that the decision failed to comply with the obligation to protect London’s historic environment and local character. The authors extracted and relied upon two passages from Mr Puranik’s email as being contradictory to the opinion of the planning officer. They were equated, rightly in my view, with the views of English Heritage which had submitted its own objection. The letter concluded:
“We believe that the SDC should have refused the Application taking into account the absence of a finalised, coherent masterplan for the Bishopsgate Goodsyard and the other grounds set out in this letter. The SDC has not complied with all relevant laws and policies, has failed to take into account and give due weight to relevant information (having not, in some circumstances, been presented with all relevant information like the Council Assessment) while also considering irrelevant and incorrect information in passing the Resolution. We demand that the Resolution be revoked”.
Simultaneously, OPEN Shoreditch sought from the Secretary of State a decision to call in the planning application. On 21 April 2008 she declined to do so, stating that there was not a sufficient conflict with material planning policies or other sufficient reason. Her view was that the Council had addressed the relevant planning considerations.
On 12 May 2008 the Tower Hamlets responded to OPEN Shoreditch’s letter of 4 April, saying that the Council’s views had not changed, that the matter had been referred to the Mayor of London who had confirmed that there would be no refusal, and that the Council proposed to issue its decision. The GLA confirmed its decision on 4 June 2008.
Issue of Permission
The defendant gave notice of the issue of planning permission on 21 May 2008. It gave amongst its reasons for grant that:
“The proposal is in line with the Mayor and Council’s policy, as well as government guidance which seek to maximise the development potential of sites. As such, the development complies with policy 3A.3 of the London Plan and HSG1 of the Council’s Interim Planning Guidance (2007) GLA and Council criteria for tall buildings; Planning Policy Guidance 15, policies 4B1, 4B5,4B8, 4B9 and 4B15 of the consolidated London Plan (2008), policies DEV1 and DEV2 of the Council’s Unitary Development Plan 1998 and policies DEV1, DEV2, DEV3, DEV27, CON2 and CON5 of the Council’s Interim Planning Guidance (2007), which seek to ensure buildings are of a high quality design and suitably located”.
These words are an echo of identical expressions used in para 2.1 of the report to the committee.
The substituted ground three relies upon the absence from the Council’s reasons of any explicit reference to DEV27.3 of the Council’s Interim Planning Guidance. That demonstrates, it is submitted, that the committee failed to consider it. Furthermore, whether it was considered or not the reasons are inadequate.
On the same date, 21 May 2008, the Council wrote to OPEN Shoreditch responding to letters sent to a member of the committee and the Corporate Director of Development and Renewal, Emma Peters. The letter concluded:
“I fully understand your position; you disagree with the Council's decision and you consider the process to have been flawed. As previously stated, the Council does not agree with you and are continuing to discharge its statutory role as local planning authority. I am sure that you are well aware of the options open to you and I trust that you will therefore appreciate why the Council has nothing further to add to the previous response you received from the Corporate Director”.
On 4 June OPEN Shoreditch with the assistance of a planning consultant saw counsel in conference. Despite the concluding terms of the Council’s letter of 21 May it was resolved to write a pre-action letter. It was not sent until 8 July 2008. It raised no matters not already the subject of complaint on 5 April 2008. On 23 July the Council sent a detailed response. The claim was issued on 18 August.
The impact of the proceedings upon the Interested Party is considered by Mr John Fitzgerald, managing director of Telford Homes plc, in his witness statement of 10 September 2008. The joint venture had expended over £30 million in development including acquisition of the land. Monthly costs of borrowing, lost investment interest and security were running at £165,000. A delay of 5 months between the committee’s decision in principle on 13 March and the issue of the claim thus prejudiced the claimant’s financial position. There were, he said, unquantifiable but important further consequences to the delivery of new homes, the worsening prospects for development finance, the renegotiation of loans and security of employment for those delivering the development.
Apart from the requirement of promptitude it was this identification of specific prejudice which caused the deputy judge to conclude that she should not give permission to advance ground 2 of the claim.
The Grounds
I have had the advantage of full argument both written and oral from all parties. While time was constrained during the oral hearing I am satisfied that I have received all the assistance the parties would have wished to provide me.
Design and Conservation Submission 22 February 2008
Mr Jones makes two submissions. First, the English Heritage objection was neither as extensive nor as detailed as Mr Puranik’s submission on behalf of the Design and Conservation Team. Accordingly, the committee would not have appreciated the scale of disagreement between the Development and Renewal Directorate and the Design and Conservation Team. Second, the identity of the holder of the views expressed was itself a consideration material to the decision making process. It was not enough that the objection of English Heritage in substantial measure reflected the views of the Design and Conservation Team.
In its response to the consultation on 5 February 2008 English Heritage wrote to the following effect:
The proposal would by virtue of its scale and massing be “significantly detrimental to the character and appearance of these [adjoining] Conservation Areas”.
For similar reasons the development “would be detrimental to the setting” of Grade II listed buildings including those at 149 Brick Lane and 25 Bethnal Green Road.
The development should aim to build on the scale of existing buildings which respected the historic character of the area. The layout required radical reconfiguration including the removal of the tower elements from the scheme.
The development would be inconsistent with the ‘masterplan framework’ being evolved for the Bishopsgate Goodsyard.
Planning policy and guidance was contrary to the scheme proposed, in particular:
Policy CON1 and CON2 Council Interim Planning Guidance (Case Strategy and Development Control) stating that permission would be refused for a development having an adverse impact on the setting of a listed building and, if it affected a conservation area, permission would be granted only where it would preserve or enhance the special architectural or historic interest of the conservation area.
Policy CFR 30 dealing with the height and street frontages of buildings based on the scale and massing of the existing 18th and 19th century architecture.
Planning Policy Guidance Note 15 requiring special regard for the setting of a listed building.
EH/CABE Guidance on Tall Buildings (July 2007) advising that ‘to be acceptable any new tall building should be in an appropriate location, should be of excellent design quality in its own right and should enhance the qualities of its immediate location and wider setting”.
The objection was fairly summarised in the case officer’s report. The English Heritage response did not draw specific attention to DEV 27 and CP 48, nor to design details which rendered the proposal in its opinion contrary to its Guidance on Tall Buildings. The principal objection to the proposal was to its mass and scale in the environmental context of listed buildings and conservation areas.
In my judgment, the objection from English Heritage and the statement of planning consideration contained in the case officer’s report fairly and properly brought to the attention of the committee members both the requirements of policy and guidance, on the one hand, and differing views as to compliance on the other. As to the complaint that English Heritage did not, while Mr Puranik did, draw attention to design and materials defects, it seems to me that, first, English Heritage were saying unmistakeably that the design and structure of the buildings proposed failed to achieve the quality required and, second, the overwhelming cause of objection was the scale and mass of the proposal as a whole rather than individual features of design or materials.
In R (Weir) v London Borough of Camden [2005] EWHC 1875 (Admin) Collins J considered the significance of a failure to draw to the attention of the planning committee the objection of the adjoining borough of Westminster to the proposed development. He said, at paragraphs 13 and 14 of his judgment that the source of an objection can be a relevant consideration, depending on the circumstances, and may affect the weight to be given to its content. Knowledge that an adjoining borough affected by a development supported specific objections “might well” have influenced the committee and the grant of permission was quashed.
In Weir the court was concerned with an objection received from an authoritative source during the external consultation process. Sullivan J has considered issues arising from the contents of the case officer’s report to a planning committee in two cases. In R v Mendip District Council ex parte Fabre [2000] JPL 810 at 821 he drew attention to the fact that reports were addressed to a “knowledgeable readership”. The purpose was not to decide the issue but to inform members of the relevant planning considerations. Case officers must be permitted a measure of discretion when deciding what it was necessary to include in the report.
Weir was not cited in R (Park Pharmacy Trust) v Plymouth City Council and Emeris Coolart [2008] EWHC 445 (Admin) in which Sullivan J was considering, as here, responses to internal, rather than external consultation on a development. Reminiscent of the facts of the current dispute is that a member of the planning team considering the application (Mr Marsh), wrote an email to a Development Officer in the authority’s Development Consents Unit in which he expressed concerns about the height of the proposed building and the inappropriateness of design. Objection was not otherwise taken to the principle or extent of the development. It was submitted on behalf of the claimant that since there was an internal difference of view within the planning development it should have been brought to the attention of the decision makers in the case officer’s report. The submission was rejected. At paragraph 43, the judge said:
“There will often be differences of professional opinion among planning officers responsible for assessing the merits of a planning application. A report prepared for the assistance of members will reflect the professional judgment of the officer responsible for the report (who may or may not have been its author). Members will be well aware that he or she will have formed that professional judgment having considered the, possibly conflicting, views of colleagues within the department. There is no reason to impose a legal duty on the responsible officer to identify difference of view within the planning department.”
I gratefully adopt this analysis. The requirement upon the case officer is to identify the planning issues, policies and guidance relevant to the application for the assistance of members. That does not include a need to conduct a head count within his own planning authority to ascertain who is and who is not in favour of any particular feature of the proposal. If that were so the process would never end. Where the difference is over planning judgment the need is to identify the issue and assist members with relevant references to policy and guidance, not to explore the source of different opinions. On the other hand, I do not exclude the possibility that there may be cases even of internal disagreement in which the identity of the holder of the opinion will have a significant effect upon the weight to be attached to the opinion itself. Since, however, the author of the report and his superior supervising officer are likely to be applying a more experienced and considered judgment upon the proposal as a whole I would expect such an occurrence to be rare.
It is not suggested that Mr Puranik’s opinion was entitled to any particular weight by reason of his exceptional experience or expertise. It is suggested that his opinion should have been identified as the expert view of the Design and Conservation Team. I disagree. The email is expressed in the first person. No doubt his view was expressed as a member of the DCT but there is no evidence that Mr Puranik had sought the views of senior or other colleagues within his team. Mr Puranik’s opinion was deserving of no greater prominence than that of Mr Marsh in Park Pharmacy Trust. The committee report was the work of the case officer under the supervision of and issued by the Corporate Director Development and Renewal. It seems to me they were perfectly entitled to consult departmental teams and to reach their own view upon the merits of the application without rehearsing the process of consultation. There is no reason to think that committee members might have been unaware of this process which is commonplace.
I agree with the conclusion of the deputy judge that the complaint made in ground 1 is one of form rather than substance. I do not consider, subject to CP48 point made in ground 2, that there was planning issue raised by Mr Puranik which was not placed properly before the committee by the report for decision.
DEV27 and CP48 Interim Planning Guidance
As I have noted, the essential issues arising from CP48 and DEV27 were placed before the committee in the case officer’s report at paragraphs 8.39 and 8.43. DEV27 is a reference to development control policy adopted by the defendant. The DCP includes criteria which “will be taken into account by the Council when determining planning applications”. DEV27.3 gave notice that the Council would expect an applicant for permission to be able to demonstrate “the consideration of built form design alternatives other than tall buildings.
No requirement was made at the meeting of the SDC that the proposer demonstrate consideration of alternative designs. It follows that the members themselves were not asked to consider any alternative proposal or to consider whether they should reject the proposal in the absence of consideration of an alternative. I agree with the deputy judge that this omission arguably constitutes a failure to take account of a material consideration.
The history of the application is, however, relevant. The defendant had been in discussion and negotiation with officers of the Borough, including Mr Puranik, for some 18 months. Alternative proposals were requested which resulted in the original scheme being somewhat reduced in scale. Improvements were made to the design quality of the structures. It was not suggested by Mr Puranik in his email objections that there had been a failure to consider alternative proposals. Mr Puranik confined himself, as did the case officer, to a consideration of the justification for the proposal on its merits.
The GLA had indicated general approval for the siting of tall buildings subject to modifications which had been addressed. As time progressed it is apparent that the case officer concentrated not upon the principle whether tall buildings would be permitted at all but upon the question whether the tall buildings proposed otherwise complied with the development policy set out in the Interim Guidance.
It cannot have escaped the attention of members that they were being asked to consider approval of a scheme as an exception to the CP48 policy that tall buildings were to be situated in specified cluster locations. It necessarily followed that alternative low build would have been the presumptive option, and that there was no such option being proposed. Having regard to the depth of discussion on whether a tall building was appropriate for this particular site it seems to me virtually certain that the planning decision would not have been any different had DEV27.3 been brought explicitly to members’ attention. Had its effect required explanation to members they would have been advised that the terms of DEV27.3 did not operate as an exclusion of the grant of planning permission where consideration had not already been given to the low build option. It gave notice that the Council might, when determining applications, require the developer to give consideration to the low build option. Here the Council’s officers had been in discussion for some 18 months on a proposal to site a tall building outside the designated cluster areas. The issue had become not whether the alternative was viable or preferable but whether the tall build proposal was otherwise compliant. Having heard full argument on ground two I have come to the conclusion that if established it would not result in an order quashing the grant of planning permission.
Reasons
The claimant now asserts that the reasons provided by the committee for its grant of permission fail to meet the standard required by Article 22(1)(a) Town & Country Planning (General Development Procedure) Order 1995, as amended, since they failed to include “a summary of their reasons for the grant and a summary of the policies and proposals in the development plan which are relevant to the decision….” Missing was a reference to the requirements of DEV27.3 and a summary of reasons for finding compliance with DEV27 and CP48.
This failure, Mr Jones submits, amounts both to a free standing ground for challenging the grant of permission and as collateral assistance for ground two.
My attention has been drawn to observations upon need for reasons and the scope of them by Sullivan J in R (Wall) v Brighton & Hove City Council [2005] 1 P&CR 566 and by Collins J in R (Tratt) v Horsham District Council and Hutchison 3G UK Ltd [2007] EWHC 1485 (Admin).
Where permission is granted the necessity is for the summary of reasons to identify why the application was successful. That may amount to no more than an explanation that the proposal complied with identified planning policy and guidance. (See, for example, R (Roundham and Larling Parish Council v Breckland Council and Paul Rackham Ltd [2008] EWCA Civ 714 at paras 9 and 10).
In Smith v Cotswold District Council [2007] EWCA Civ 1341, an appeal against refusal of permission, the Court of Appeal held that while the reasons might be inadequate permission would not in that case be granted when there was no realistic prospect of a change in the planning decision.
The reasons given in the defendant’s notice included that “the development complies with …. GLA and Council criteria for tall buildings …. Policies DEV27 …..of the Council’s Interim Planning Guidance (2007) which seek to ensure buildings are of a high quality design and suitably located”. Since DEV27 requires reference to CP48 which was complementary in its terms it is my view implicit that the committee found the proposal to be in accordance with DEV27 when read with CP48. The reasons given were accordingly adequate both for the purposes of the applicant and interested members of the public.
This does not imply that I accept the terms of DEV27.3 were considered and applied by the committee. I have already found that they were probably not considered. This does not, however, affect my view that had consideration been given to paragraph 3 the planning decision would have been the same.
Delay
The defendant accepts that the claim was filed 3 days before the expiration of 3 months after the issue of the planning permission. This is the outer time limit set by CPR54.5(1)(b). Time begins to run from the date of issue (21 May 2008) notwithstanding the decision was made on 13 March 2008 (see Burkett v LB Hammersmith & Fulham [2002] 1 WLR 1593; [2002] UKHL 23).
However, CPR54.5(1)(a) requires the claim to be issued promptly; permission may otherwise be refused.
I accept the submission made on behalf of the claimant that I should not when considering promptness impose some hypothetical yardstick, for example, the six weeks period allowed for statutory challenge under section 288 Town & Country Planning Act 1990 following refusal (c.f Burkett supra and Finn-Kelcey v Milton Keynes Council and MK Windfarm Ltd [2008] EWCA Civ 1067 per Keene LJ at para 24 and 25).
It is common ground between the parties that while good administration requires adherence to time limits, what is required by the duty of promptness may depend upon the circumstances and upon the effect on others of any delay. As Sedley LJ said in R (Lichfield Securities Ltd v Lichfield District Council [2000] EWCA Civ 304; [2001] 3 PLR 33, at para 37:
“But promptness, like undue delay, is not to be gauged simply by locating the earliest practicable opportunity and adding a short time for lawyers to advise and launch proceedings. It is crucially affected by the potential or actual effects of the passage of time on others. This is the reason for the particular pressure on applicants in many planning cases.”
The claimant drew my attention to the decision of Sir Michael Harrison in R (Norton & Others) v London Borough of Lambeth [2007] EWHC 3476 (Admin) in which he accepted that while the claim was not issued until the last day of the three month limit it was nevertheless issued with sufficient promptness having regard to the way in which the issue subject of the claim had emerged. It is not clear whether Sir Michael made a finding that the claim was filed promptly or held that it was not but nevertheless permitted the claim to proceed as an exercise of discretion. He certainly considered the claim on its merits. What is clear is that the facts of that case were very different from the present. The critical error made by the planning committee which, Sir Michael found, vitiated the planning decision was not spotted by anyone until nearly 3 months after planning permission was granted. The objectors were not legally represented and not previously organised save by the co-ordination of individual objections. There was no evidence of prejudice suffered by the developer. I do not consider that the circumstances of that case are analogous.
Here, OPEN Shoreditch was aware of the decision in principle on 13 March 2008 because two of its members were present at the meeting. Within three weeks the claimant had articulated its complaints in detail in letters to the defendant, the GLA and the Secretary of State. The claimant had some experience of litigation. Mr Parry-Davies, a partner in the claimant’s solicitors’ firm, is a member of the claimant company. The need to take instructions and secure funding was quickly apparent. It was clear that by the time the planning permission was issued on 21 May 2008 the planning authority was immoveable, the Mayor of London would not be cancelling the resolution, and the Secretary of State would not be calling the matter in.
The grounds have not changed since the issue of the decision, save for the addition of new ground three following a change of counsel after refusal of permission by the Deputy Judge. It seems to me there was no acceptable reason why proceedings should not have been commenced within a month or so of the issue of the decision. Actual financial and other prejudice was being suffered by the interested party during the passage of time. Mr Jones asserted that the interested party should not now be heard to complain of delay when neither it nor the defendant demanded expedition following the issue of the letter of complaint in April and the letter before claim in July. In my view the obligation was upon the claimant to comply with the requirement of the rule. It was not entitled to assume that the absence of litigation advice from the other parties somehow relaxed the requirement of the rule. It could not be and was not argued that the claimant was in any way misled.
Mr Jones complained that the claimant was placed in a difficult position by the requirement of CPR54.5. Precipitate action leads to criticism that the consideration of the Administrative Court has been prematurely and wastefully required; on the other hand, utilising the three month period to exhaust all non-litigious methods of redress leads to criticism that the claimant has failed to act promptly. I have tried to be careful not to exact an unrealistic standard from the claimant. I have reached the conclusion I have upon a consideration of the particular facts of the present case.
Quite apart from my view upon the merits of the grounds I agree with the opinion of the deputy judge that there has been such leisurely progress of this claim that it cannot be said to have been issued promptly.
For these reasons the renewed application is refused.
At the hearing, I was informed that the claimant was content, should permission be granted, that submissions upon its application for a Protective Costs Order should be made in writing. I have since received written evidence on behalf of the claimant in support of the application, to which the defendant has expressed objection. In view of my decision upon the renewed application it has not been necessary for me to consider the further material.