Historic Buildings Monuments Commission for England (English Heritage) & Ors v Secretary of State for Communities and Local Government & Ors

This is an application by virtue of section 288 of the Town and Country Planning Act 1990 against a decision of the Secretary of State to grant planning permission for the development of land at Doon Street, Cornwall Road and Upper Ground, London SE1.

On the 1st of June 2007 Coin Street Community Builders Ltd (hereafter “CSCB”) applied to the London Borough of Lambeth for planning permission to undertake:

“Redevelopment of site to provide a 8,292 square metre multi purpose community sports centre and swimming pool, 902 square metres of retail/commercial/restaurant/bar floor space (use Classes A1, A 2, A3 and A4), 329 residential units and underground part car parking for 56 cars contained within a 43 storey tower measuring 144.3 metres in height and part 7, part 8 storey block with roof terraces and courtyard.”

The height of the tower and its visibility from and impact upon a number of sensitive locations, particularly Somerset House and the Royal Parks, were major issues. The viability of the project was a related matter, both in terms of the need for such a high tower and in terms of the possibility that it might be sought to amend the proposed development, once the principle of its development was established. English Heritage and Westminster City Council (hereafter "Westminster") objected to the proposal. English Heritage is the Government's statutory adviser on the historic environment. Somerset House and St James's Park fall within the area of Westminster.

The Secretary of State called in the application for decision. On the 12th of February 2008 a public inquiry opened before Mr Philip Wilson, DipArch, DipTP, RIBA, MRTPI, an Inspector appointed by the Secretary of State. CSCB, Lambeth and the GLA presented major cases for the application. English Heritage, Westminster, and The Royal Parks led the opposition. Both sides had support from a substantial number of objectors and interested persons.

Mr William Ashton is a local resident who lives 260 metres from where it is proposed to build the tower. It would be in full view of his flat. Mr Ashton is a member of the Waterloo Community Development Group (WCDG), which was an objector at the inquiry. He said he attended the inquiry in person. He wishes to challenge the decision on one point upon which it is claimed the Secretary of State fell into error. The question whether he is a person aggrieved is in issue and I consider it below.

The inquiry closed on the 7th of March 2008. The Inspector reported on the 22nd of May 2008. He recommended that planning permission should not be granted. However, in a decision dated 19th August 2008 the Secretary of State disagreed with the Inspector's recommendation and granted planning permission subject to conditions. It is that decision that the Claimants seek to quash.

Rather than start by setting out fully the Inspector’s report, followed by the Secretary of State’s decision letter, I think it will be more helpful to a clear understanding to deal with those documents broadly at this stage and return to a fuller account of specific passages in dealing with submissions.

In his conclusions the Inspector introduced the main considerations and his approach to them in these words:

“15.2

At a Pre-Inquiry Meeting … I provisionally identified the main considerations. With one small amendment, they remain as set out … and incorporate matters about which the Secretary of State particularly wished to be informed. I repeat them here for convenience. They are:

1.

The effect of the development proposed on its surroundings, having particular regard to;

1.

views of and across London

2.

the appropriateness of high buildings in this part of London

3.

the setting of conservation areas in Lambeth and Westminster

4.

the setting of listed buildings in Lambeth and Westminster

5.

the setting of the Westminster World Heritage Site;

2.

Whether the development proposed accords with relevant development plan policies and with national planning policy objectives on housing;

3.

Whether the proposals accord with relevant development plan policies and with national planning policy objectives for town centres;

4.

If harm were to be found in relation to any of the foregoing main issues, whether there are circumstances present to outweigh that harm and justify a grant of planning permission.

15.3

Although I address in this part of my report each of the matters set out above, evidence given at the Inquiry and the cases of the principal parties focus mainly on the effect of the tower element of the proposed development on the view from St James’s Park, its effect on the setting of Somerset House and other listed buildings and its effect on the setting of conservation areas in Lambeth and Westminster. Issues concerning the development’s benefits and the omission of affordable housing were also raised at the Inquiry and are addressed in this report.

15.4

Were no harm to be found in relation to matters set out above there would be no obstacle to the granting of a conditional planning permission, assuming no issues in connection with the section 106 agreement and no objection on other grounds. Were harm to be found, that harm would need to be outweighed by the scheme’s benefits. Those benefits are generally recognised as being a significant addition to Lambeth’s housing stock, the provision of sports and other community facilities, the generation of employment opportunities and enhancement of the application site and the public realm. The Applicants argue that the architectural quality of the development is an important material consideration that weighs in favour of the proposal.”

Under the heading of designated views the Inspector concentrated on the view from St James' Park Bridge to Horse Guards Road. He assessed the visual effects of the development bearing in mind the advice of the London View Management Framework (hereafter “LVMF”), which has the status of supplementary planning guidance.

The Inspector then turned to the appropriateness of high buildings, noting that the application site was within an area that included high buildings and where a continuing process of regeneration and renewal was encouraged. He referred to the Waterloo Opportunity Area Planning Framework (WOAPF) 2007 and development plan policies and concluded:

“15.42

In summary, therefore, there is planning policy and planning guidance support for a tall building on the application site. The acceptability of any such proposals would, however, depend on the quality of its design, its effect on local and strategic views, its contribution to London’s skyline and its relationship with other buildings and spaces.

Under the heading of Conservation Areas, the Inspector recalled the duty imposed by section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990:

"In the exercise, with respect to any buildings or other land in a conservation area, of any functions under or by virtue of any of the provisions mentioned in subsection 2, special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area." (emphasis added)

Since the application site is not within any conservation area the issue relates to the setting of conservation areas in Lambeth and the City of Westminster only as a matter of policy. PPG 15, paragraph 4.14 says:

"The desirability of preserving or enhancing the area should also, in the Secretary of State's view, be a material consideration in the planning authority's handling of development proposals which are outside the conservation area but would affect its setting, or views into or out of the area."

The Inspector found that in the cases of the Lambeth Waterloo, Savoy and Whitehall conservation areas and the City of Westminster Covent Garden, Adelphi and Trafalgar Square conservation areas the setting of those conservation areas would be preserved. In relation to other conservation areas the Inspector concluded that the development would fail to preserve or enhance the character or appearance of the South Bank CA, the Roupell Street CA, the Strand CA and the Royal Parks CA.

The Inspector then focused on the settings of listed buildings, concentrating mainly on the Royal National Theatre and Somerset House but also commenting on Waterloo Bridge and the Royal Festival Hall.

He found that the RNT would be overwhelmed and its civic and cultural significance would be greatly diminished.

I shall set out in full below what the Inspector said about the impact on Somerset House because Neil King QC, in his submissions on behalf of English Heritage, said that this was the impact about which that body had the greatest concern. The Inspector considered that “the failure of the development proposed to preserve a setting appropriate to Somerset House, a Grade I listed building and an important historic asset justifies, by itself, withholding planning permission.”

The Inspector found that the setting of Waterloo Bridge would be preserved. As for the Royal Festival Hall he found that the development would fail to preserve an appropriate setting for it because of the height and prominence of the proposed tower.

The Inspector was satisfied that the proposed development would not conflict with the purpose of the Westminster World Heritage Site designation nor any aim of development policies designed to protect such heritage assets. His overall conclusion on the first consideration was, however, that the development proposed would be harmful to its surroundings and to many of the heritage assets that contribute to that part of London.

The second consideration was whether the development proposed accorded with relevant development plan policies and with national planning policy objectives on housing. The Inspector noted that the 329 additional dwellings proposed would make a significant contribution towards meeting Lambeth’s housing target. He recorded the applicant’s case for not providing affordable housing and addressed the question of the scheme’s viability. The overall conclusion on this consideration (set out in paragraphs 15.112 and 15.113) was that the aims of national and local policies would be met. The contribution to housing in Lambeth would be significant and the viability reasons for omitting affordable housing withstood criticism. On balance the provision of housing would be a benefit.

The third consideration related to town centre policy. After noting that issues arising from town centre policies or PPS6 did not feature strongly in the parties cases the Inspector considered that the proposed development would bring a number of benefits and meet government and local policy objectives of PPS6 and not conflict with other policies concerned with town centres: IR/15.129.

The fourth consideration was whether any harm identified was outweighed by benefits so as to justify the grant of permission. The Inspector summarised his findings on the benefits and the harm he had identified. He said:

“15.141

The issue comes down to weighing tangible, local community benefits, which it is argued are achievable only through development of the form and intensity proposed, against the harm that would be caused to heritage assets of acknowledged local, metropolitan and national importance.

15.142

In recommending to the Secretary of State that planning permission should not be granted I am mindful that the Doon Street site is well located and capable, in my opinion, of accommodating development in a form more sensitive to its situation and of a kind better able to meet the requirements of development plan policies concerned with the protection of heritage assets. Insofar as it can be separated from the form that the development would take and the unwelcome consequences of so tall a building, I do not criticise the scheme’s architectural quality. The delivery of benefits of the kind proposed to the local community is an important consideration but it is not one that should, in my opinion, be allowed to override well-founded planning objections firmly based in policy.”

Then the Inspector turned to other material considerations. Under this heading he dealt with the obligations in the section 106 agreement and the submissions made about them. He considered that the tests of the Planning Obligations Circular (05/2005) were broadly met. He felt he could “ offer little legal or financial insight into the question of whether a performance bond is required in circumstances where a decision to grant planning permission might be influenced by certainty that a particular public benefit would be provided and retained for a long period.” (Paragraph 15.147)

The Inspector summarised his conclusions thus:

“16.1

In summary, the Doon Street site presently makes little contribution to the character of the South Bank but has considerable potential to satisfy the aims and objectives of strategic and local planning policies. The application which is the subject of this report is concerned with only a part of the Doon Street site, but one which would accommodate the greatest amount of built development.

16.2

The residential element of the scheme would make a significant contribution towards meeting the strategic, 10-year housing target for Lambeth. The scheme would provide no affordable housing; but the Applicants have already made a significant contribution to social housing in the area, of an amount that would roughly match the deficiency of the development proposed. The provision of housing as part of a mixed scheme of development may be regarded as a benefit.

16.3

A further and particular benefit argued in support of wholly private housing is its ability to fund the provision and operation of a sports complex for which a need has been identified. The Doon Street site is recorded in the Lambeth UDP as offering an opportunity to meet this need. Other, incidental, benefits would flow from development of the application site.

16.4

The site is well located to support a mix of uses and the uses proposed would be compatible with objectives for the South Bank and Waterloo areas. No particular issues arise in connection with town centre policies or guidance and development of the intensity proposed would not appear out of place in this part of central London. There are already tall buildings in this part of London that contribute to its character, but they are not so prevalent as to determine its identity or provide a compelling precedent for development of greater intensity.

16.5

The Doon Street site may well be capable of accommodating a tall building within parameters established by development plan policies and by national policy and guidance. However, the tower element of the scheme proposed would impose itself on both its immediate and wider context. It would appear prominent and disturbing within a view from St James’s Park identified as having significant townscape value and would conflict with policies designed to safeguard London’s strategic townscape views.

16.6

In addition, a tower of the height proposed would detract unacceptably from the setting of one of London’s most important public buildings, the Grade I listed Somerset House, and the settings of other buildings of special architectural or historic interest. Through its presence and prominence, the tower would also harm the settings of conservation areas in the Borough of Lambeth and the City of Westminster.

16.7

Even if linked with benefits that might accrue from development of the two other parts of the Doon Street site (PA2, PA3), in accordance with resolutions adopted by Lambeth Council, the scheme which is the subject of planning application PA1 would result in harm that would not be outweighed by benefits the scheme could secure.

16.8

The high quality of the design is a consideration to be taken into account, to the extent that it can be appreciated in local and distant views. However, I see no reason why an alternative scheme should not seek to achieve a similar high standard of design in a way more respectful of its surroundings.

16.9

The balance of my conclusions is that planning permission should be withheld.”

The Secretary of State disagreed with the Inspector and granted permission. She accepted that the main issues were as identified by the Inspector at IR paragraph 15.2 and sought to address them, one by one, in her decision letter. Much if not all of the argument in this case is directed to whether she did so adequately. What she said will be examined in detail when I turn to the submissions. Her overall conclusions were these:

“45.

The Secretary of State concludes that the application is not in accordance with the development plan, and has gone on to consider whether there are other material considerations which outweigh this lack of accordance. She considers that it is in accordance with national policy in PPS1, PPS3, PPS6 and PPG13 but that there is some conflict with national policies on the protection of heritage assets.

46.

The Secretary of State has carefully considered the effect of the proposed scheme on heritage assets and views of and across London. She considers that there would be limited harm to the settings of the Strand and Roupell Street Conservation Areas, and that this weighs against the proposal, although she considers that the harm would not be as great as the Inspector fears. She considers that there would also be harm to the setting of Somerset House, and gives this significant weight. She considers that the settings of the Royal Festival Hall and the Royal National Theatre would be preserved, and that there would be no unacceptable impact on the view from St James’s Park Footbridge.

47.

The Secretary of State considers that the benefits of the scheme to the local community are substantial. The provision and ongoing funding (for 50 years at no public cost) of a sports centre and swimming pool complex would address the lack of sports facilities and activities in what is acknowledged to be a deprived area. The scheme would also bring lasting wider social benefits, such as employment, and contribute to economic growth in this part of Lambeth. The scheme would contribute to a mix of uses and activity, of benefit to the immediate locality and the wider area, to be provided by the development of the Doon Street site overall. It would also improve the appearance of the local area. She also gives significant weight to the housing benefits of the scheme, albeit that no affordable housing is included. She concludes that these considerations outweigh the damage to the settings of the Strand and Roupell Street Conservation Areas and Somerset House. Overall, the Secretary of State concludes that the material considerations in favour of the application are of sufficient weight to determine the application other than in accordance with the development plan.

There is little dispute between the parties as to what the law is; more as to its application in this case.

A person ‘aggrieved’ may challenge, amongst other things, the decision of the Secretary of State on an appeal. The grounds for a challenge under section 288 of the Town and Country Planning Act 1990 are well known. The challenge can only be brought on the basis that the action is not within the powers of the Act, meaning that the decision maker has made an error of law, or that the relevant requirements have not been complied with and that the interests of the applicant have been substantially prejudiced thereby.

The decision-maker will have made an error of law if he has taken into consideration a matter that he ought not to have done; for example, he may have misunderstood or misapplied the relevant policy. Or he may be shown to have failed to consider something he should; for example, he may have ignored a matter that is plainly material to his decision. The decision-maker will also go wrong in law if he reaches a decision that is perverse and unreasonable in the sense that it is one that no reasonable decision-maker who properly understands the law and the relevant facts could reach. (Associated Picture Houses v Wednesbury Corporation(1948) 1 KB 223; Seddon Properties v Secretary of State (1981) 42 P&CR26 at 28.) The threshold of Wednesbury unreasonableness is difficult to surmount, particularly since the decision-maker is reaching a series of planning judgments. A challenge on this basis is not to be used as an opportunity to re-run the arguments on the planning merits. (Per Sullivan J. in Newsmith Stainless Ltd v Secretary of State[2001] EWHC Admin 74, at paragraphs 6 – 8). As Lord Hoffman said in Tesco Stores v Secretary of State [1995] 1 WLR 759 at 780:

“If there is one principle of planning law more firmly settled than any other it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”

Secondly, the court may quash the decision if any of the relevant requirements have not been complied with and the complainant has been substantially prejudiced thereby. A most important requirement is that the decision-maker must give adequate and intelligible reasons. The law on that point was authoritatively stated by Lord Brown in the case of South Bucks DC v Porter (No 2)[2004] 1 WLR, 1953. Lord Brown reviewed the cases, quoting (paragraph 33) Sir Thomas Bingham MR in Clarke Homes Ltd v Secretary of State for the Environment(1993) P&CR 263, where he “felicitously observed”:

“I hope I am not oversimplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved … on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication.”

Lord Brown then proceeded to a broad summary of the authorities that has become something of a touchstone:

"36.

The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for the decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such an adverse inference will not readily be drawn. The reasons indeed refer only to the main issues in the dispute not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

In Bolton Metropolitan District Council v Secretary of State for the Environment(1995) 71 P&CR 309 the House of Lords said:

“What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the ‘principal important controversial issues'. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden… Since there is no obligation to refer to every material consideration, but only the main issues in dispute, the scope for drawing any inference “-the inference suggested being ‘that the decision-maker has not fully understood the materiality of the matter to the decision’” will necessarily be limited to the main issues, and then only, as Lord Keith pointed out [in R v Secretary of State for Trade and Industry, Ex p Lonhro plc [1989] 1 WLR 525 , 540], when ‘all other known facts and circumstances appear to point overwhelmingly’ to a different decision.”

Development in a conservation area or affecting the setting of a listed building

The proper approach to the consideration of development in a conservation area was made plain by Lord Bridge in South Lakeland District Council v. Secretary of State for the Environment [1992] 2 A.C. 141. (Section 277(8) in that case was in substantially the same terms as section 72, set out above). At page 150 Lord Bridge quoted and approved Mann L.J. who said this in the Court of Appeal:

“The statutorily desirable object of preserving the character or appearance of an area is achieved either by a positive contribution to preservation or by development which leaves character or appearance unharmed that is to say preserved.”

Lord Bridge continued:

“My Lords, I have no hesitation in agreeing with this construction of section 277(8). It not only gives effect to the ordinary meaning of the statutory language; it also avoids imputing to the legislature a rigidity of planning policy for which it is difficult to see any rational justification. We may, I think, take judicial notice of the extensive areas, both urban and rural, which have been designated as conservation areas. It is entirely right that in any such area a much stricter control over development than elsewhere should be exercised with the object of preserving or, where possible, enhancing the qualities in the character or appearance of the area which underlie its designation as a conservation area under section 277. But where a particular development will not have any adverse effect on the character or appearance of the area and is otherwise unobjectionable on planning grounds, one may ask rhetorically what possible planning reason there can be for refusing to allow it. All building development must involve change and if the objective of section 277(8) were to inhibit any building development in a conservation area which was not either a development by way of reinstatement or restoration on the one hand ('positive preservation') or a development which positively enhanced the character or appearance of the area on the other hand, it would surely have been expressed in very different language from that which the draftsman has used.”

Development affecting the setting of a listed building is dealt with in section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990, which reads:

“66(1) In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.”

Mr King's first three grounds relate to the impact of the development on the setting of the Royal Parks Conservation Area, the Royal National Theatre, and the Royal Festival Hall. His starting point is that where a development will harm the setting of a conservation area it will not preserve the setting of that area and will thus be contrary to PPG 15, paragraph 4.14 and policy 47 of the UDP.

Mr King says that in paragraph 17 of her decision letter the Secretary of State found that there would be an adverse impact upon St James's Park but despite this went on to conclude that the proposed development would preserve the setting of the conservation area. This, he says, is irrational because once there is a degree of impact it cannot be concluded that no harm will be caused and it demonstrates that the Secretary of State has not properly understood the policy. A comparison between the Secretary of State’s paragraph 17 and the Inspector’s paragraphs 17.27 to 15.29 showed the inadequate and muddled nature of the former’s reasons.

Paragraphs 17 and 18 of the decision letter are as follows:

“17.

As regards designated views, objections to the proposed tower relate only to LPC/LVMF Townscape View 26: St James’s Park Bridge to Horse Guards Road. The Inspector has assessed the impacts of the proposed tower against the relevant tests identified in the LVMF (IR15.21-15.28), and has concluded that even if the Doon Street tower were to be constructed, the landscape of St James’s Park would continue to dominate the view (IR15.29). The Secretary of State agrees with this conclusion.She disagrees, however, with the Inspector’s judgement that the delicate balance between landscape and buildings would be seriously damaged by the appearance of the Doon Street tower (IR15.29), or that the tower would appear disturbingly prominent and oppressive in scale (IR15.21). She considers that the impact on this view would not be as great as the Inspector fears, and would not be unacceptable. In reaching this conclusion, she has taken into account the high quality of the design of the building which demonstrates technical virtuosity, imagination and keen attention to detail (IR15.26). Unlike the Inspector (IR15.27) she considers that the high quality of design would be a relevant factor even at this distance,as the form of the building would still be evident. She has taken into account the view of the Commission for Architecture and the Built Environment that the form of the tower reduces its apparent scale and produces an elegant form with an interesting roofline, and that the tower works well in this context (CD15/5, paras 2.3.9 and 2.3.11). She has further taken into account the view of the Greater London Authority and Lambeth Borough Council (IR7.71), that, given the presence of the city in the backdrop of the view and the fact that the Park is in an important city location, the development proposed would not have an unacceptable impact.

18.

The Secretary of State has also had regard to the fact that planning permissions have already been granted for two tall buildings that would be visible in this designated view (the Bishopsgate Tower and the IPC Tower), although with limited visual impact on it (IR15.19).”

In these paragraphs of the Secretary of State is dealing with views across London but she bases her conclusion in paragraph 23 about the conservation area on what she says in paragraphs 17 and 18. The decision letter says:

“23.

Given her conclusions on the impact of the tower on the designated strategic view from St James’s Park (paragraphs 17-18 above), the Secretary of State disagrees with the Inspector’s conclusion at IR15.60 that the proposed development would fail to preserve or enhance the setting of the Royal Parks Conservation Area.”

Mr King emphasises her statement "that the impact on this view would not be as great as the Inspector fears, and would not be unacceptable." He says that amounts to a finding that there would be an adverse impact.

In reply, Mr James Maurici for the Secretary of State and Mr Forsdick for CSCB say that "impact" is not tantamount to "harm". Mr Maurici contrasts the express reference at the end of paragraph 17 to the view of the Greater London Authority and Lambeth Borough Council in IR 7.71 that "the development proposed would not have an unacceptable impact". He points out that this is a direct quote from paragraph IR7.71 which, if it is read in its entirety, makes it plain that the "impact" was said to amount to a positive enhancement. It is in that context that the Secretary of State is manifestly using the phrase; 'no unacceptable impact' means 'no harm'. Furthermore, the Secretary of State has approved the way the Inspector set out the issues at IR 15.2 in which the Inspector set the appropriate test and referred to PPG 15. It would be very surprising, he remarks, if the Secretary of State then made the error the Claimants attribute to her.

The second ground related to the impact upon the setting of the Royal National Theatre. Mr King pointed out that the Secretary of State agreed with the Inspector that the tower would 'intrude' on the setting of the RNT. The Inspector had said:

“15.69

The tower would, by reason of its height, scale, distinctive form and elevational treatment be readily distinguishable from the Royal National Theatre. However, the sheer bulk of the tower, to which height would be the greatest contributor, would overwhelm the listed building. It would intrude upon its setting in a way unlikely to have been anticipated when the theatre was conceived. Its civic and cultural significance would, as a result, be greatly diminished. [7.82, 8.102-8.106, 11.44, 11.46, 11.50]

15.70

In considering the effect of the tower element on the setting of the RNT, I have taken into account the quality of its design and the benefit to aspects of the setting of the theatre that would follow from development of a vacant and underused site. However, these are not considerations that outweigh what I conclude would be the harmfully intrusive effect of the development on the building’s setting.”

The Secretary of State's response was:

“28.

As regards the Royal National Theatre, the Secretary of State has taken into account that the theatre building is not seen in isolation of other development and that other buildings assume some prominence in local views (IR15.67). She has also taken into account the high quality of the proposed design, and the benefit to aspects of the setting of the theatre that would follow from the development of a vacant and underused site (IR15.70), as well as the view expressed by the Royal National Theatre that the tower would not detract from the setting of the listed building (IR12.6). She agrees with the Inspector at IR15.69 that the tower would be readily distinguishable from the Royal National Theatre, and would intrude on its setting, but disagrees that the effect would be to ‘overwhelm’ the listed building, or that the civic and cultural significance of the Royal National Theatre would be greatly diminished (IR15.69). Overall she considers that the development does preserve the setting of the listed building.”

The word “intrude” plainly had a negative connotation in the way the Inspector used it, said Mr King, and it amounted to saying that there was a degree of adverse impact on the setting of the RNT. The Secretary of State agreed that the tower would intrude on the setting and must therefore have adopted the acceptance of adverse impact, which equates to harm. But the Secretary of State then went on to say that she considered that the development “does preserve the setting of the listed building.” That gave rise to the same error of law as mentioned under ground 1.

To this Mr Maurici and Mr Forsdick made essentially the same answer as they did to ground 1. They said that the Secretary of State was making an overall planning judgment based upon a number of subsidiary subjective judgments. The Secretary of State was entitled to come to a different view on such matters. To "intrude" is not necessarily harmful. Whatever flavour the Inspector may have given the word it is clear from the context that the Secretary of State is not saying that intrusion must be harmful.

Ground 3 related to the impact on the setting of the Royal Festival Hall. The Inspector said, at paragraph 15.89:

“The Royal Festival Hall is listed in Grade I. It has historical and cultural associations with the South Bank but is restrained in its outward appearance. Its Grade I status suggests a particular sensitivity to changes within its setting. The Doon Street tower would be visible in association with the Royal Festival Hall from many viewpoints, most obviously from the Jubilee Footbridge, to the west. From here and from other places, it would be seen to dominate the Royal Festival Hall. Accordingly, I conclude that the development proposed would, by reason of the height and prominence of its tower, fail to preserve an appropriate setting for this Grade I listed building. [2.9, 7.81, 7.83, 7.85, 8.45, 8.107, 11.11]”

The Secretary of State addressed that at paragraph 27 in these words:

“27.

The Secretary of State has carefully considered the effect on the Royal Festival Hall, and the Inspector’s comments at IR15.89. She considers that the height and prominence of the tower would have an impact on the setting, but that this impact would not be unacceptable, and would not fail to preserve the setting of the Royal Festival Hall. In reaching this view, she has had regard to the view expressed by the Chief Executive of the South Bank Centre (IR11.11) that the Doon Street scheme would result in the area’s further enhancement and that the tower element of the scheme would not be detrimental to the Royal Festival Hall but would form part of a development that would complement the architecture, urban design and dynamism of the South Bank. She has further taken into account the views of the Commission for Architecture and the Built Environment that the Royal Festival Hall is not experienced in isolation and has a dynamic relationship with the neighbouring buildings and urban context, and that the impact of the proposal does not raise design concerns in this respect (CD15/5, para. 2.3.14).”

The challenge of the claimants once more focused upon the alleged error of finding an impact but viewing it as ‘not unacceptable’. The response was also the same.

The Secretary of State began her decision letter, in paragraph 5, by accurately noting the relevant statutory and policy provisions and the proper approach. The Court will not readily assume that she had forgotten those matters 20 or so paragraphs later. In my judgment when the decision letter is read fairly and in context it is plain that the Secretary of State was not equating "impact" or "intrude" with "harm" anymore than the words "impact" or" intrude" necessarily mean or imply harm in normal English usage. Impact on its own is not inevitably harmful; it can be good or bad. The same is true for intrusion. The Secretary of State quotes paragraph 7.71 of the Inspector's report in which "would not have unacceptable impact" plainly meant "would do no harm". I also observe that when the Secretary of State meant that the impact would be detrimental and therefore cause harm she said so, as in the cases of the Roupell Street Conservation Area (paragraph 21) and the Strand Conservation Area (paragraph 22). In this, as in Mr King’s analysis of IR 15.27 to 15.29 and DL 17, despite his eloquent submissions, I think that what the Secretary of State meant was plain enough.

The Inspector's use of "intrude" in paragraph 15.69 was qualified. It was not the intrusion in itself that would cause harm but an intrusion in a way "unlikely to have been anticipated when the theatre was conceived" which, the Inspector judged, would greatly diminish the RNT's civic and cultural significance and, as a result, would be harmfully intrusive. (My underlining. The use of "harmfully" suggests to me that the Inspector did not think that to be intrusive was necessarily harmful). That was a value judgment with which the Secretary of State was perfectly entitled to disagree if she saw fit. She was entitled to give such weight as she thought proper to the view expressed by the RNT itself that the proposed tower would not detract from the setting of the listed building.

In the same way and for the same reasons there is nothing in the point about the Royal Festival Hall. The Secretary of State was entitled to reach a different view and entitled to put more weight than the Inspector on the views of the Chief Executive of the South Bank Centre and CABE. Grounds 1, 2 and 3 disclose no error of law.

Mr King made it plain that English Heritage's concern about what it regards as a hugely damaging impact upon the setting of Somerset House is at the core of its challenge. I was taken to English Heritage's case (IR 8.62) which records its view that the special nature of Somerset House is that both the architecture and, largely, the setting of that building has remained unaltered since it was constructed. It was said that "it is a perfect unity, designed by one architect and built as a single building." English Heritage is the Secretary of State's adviser on heritage conservation matters, and it had issued this claim with considerable reluctance. Indeed this was the first occasion on which English Heritage had made a legal challenge to a planning decision taken by a Secretary of State. The reason it had done so is that it believed, as did Westminster, that the development would do irreparable harm to historic assets of the highest importance. Whilst acknowledging that the weight to be given to competing considerations is for the Secretary of State, the claimants believed, he said, that she has been unable to rework the balance in a way that would entitle her lawfully to disagree with her Inspector.

The Inspector dealt with the impact on the setting of Somerset House in paragraphs IR15.72 to 15.87.

“15.72

There is no dispute concerning the architectural quality of Somerset House. It is an outstanding example of late 18^th century architecture prominently positioned on the north side of the Thames. The main access, for both vehicles and pedestrians, is from the Strand. Here, a carriage entrance and flanking footways form a vestibule. The vestibule opens into a quadrangle defined by the building’s four main ranges – north, east, south and west. [2.9, 6.56, 7.72, 8.53, 9.27]

15.73

The list description, CD11/15, does not distinguish between various parts of the quadrangle but it comprises an upper terrace, on roughly the same level as the entrance vestibule, and a courtyard, set slightly below the upper terrace and accessible from it by way of shallow ramps. Stone balustrades between the two main parts of the quadrangle enclose light wells to basement areas. The balustrade is interrupted on its southern side by a statue of George III, separately listed in Grade I and positioned on the quadrangle’s central north/south axis. [2.9]

15.74

The quadrangle has undergone extensive restoration and resurfacing. Apart from concealed fountain heads set within the cobbled surface of the courtyard, it resembles, so far as can be determined from contemporary illustrations, the quadrangle in its original state. The quadrangle, which is normally accessible to the public, is available for up to 120 days each year for commercial events or public performances. A broad terrace, extending across the south side of the south range and facing the Thames and the Royal National Theatre, is also accessible to the public. [6.57, 6.71, 7.79, 8.64, 8.72, 9.30]

15.75

Objections to the tower element of the development proposed arise from its appearance, in particular views, above the south range. The Applicants’ visual material is accepted as being as accurate as current photographic techniques will allow. It confirms that the topmost part of the Doon Street tower could be seen by visitors emerging into the quadrangle from the Strand entrance and passing onto the upper terrace. The tower would disappear progressively from view as the visitor approaches and descends into the courtyard. [6.56, 6.73, 7.77, 8.54, 8.70, 9.35. 9.36]

15.76

At present, nothing that does not form part of Somerset House appears above the roof of the south range. That is also the position with the east and west ranges. From the southern part of the courtyard, looking north, buildings in the Strand - including the King’s College building and the church of St Mary-le-Strand – are seen rising above the roof of the north range. The south face of the north range is architecturally more complex than the inner elevations of the east and west ranges. The central pavilion, pedimented attic and shallow dome of the south range emphasises the symmetrical composition of this range and of the quadrangle as a whole. [6.62, 6.63, 6.73, 7.77, 8.56, 8.64, 9.35, 9.36, 9.40]

15.77

Disagreement between the principal parties concerning the effect of the tower on the setting of Somerset House centres on the amount of building that would be exposed, its discernibility, the extent to which it would be visible from different parts the quadrangle, its effect on the symmetry of the composition, the subjective nature of any response to the tower and whether an awareness of the tower would be significant, given the urban setting of Somerset House. I deal with each of these in turn. [6.56, 7.74, 8.56, 9.30, 9.36]

15.78

Assuming an awareness of the presence of the tower in the view, a viewer would almost certainly conclude that the portion of the building visible from the quadrangle was the top part of a tall, or very tall, building positioned well beyond the south range. The angle at which the building would be visible would prevent a full appreciation of its depth and bulk. That said, the viewer might reasonable infer from what could be seen that the building was, in its entirety, large. [6.61, 6.66, 6.73, 6.76, 7.77, 7.78, 8.55, 8.70, 8.73, 8.74, 8.75, 9.29, 9.35]

15.79

The extent to which the building would be discernible in daytime views from the quadrangle would depend largely on atmospheric conditions, light intensity and direction, the colour of facing materials and the reflectivity of the building’s outer surface. The first two factors are subject to almost infinite variation but there would be times when, even at a distance of more than 600 metres, the building’s form and features would be very apparent. In other conditions, the building might not be visible at all. Although the colours of facing materials proposed would fall within a fairly neutral range, in most conditions of daylight they would differ in tone from a background of sky or clouds. [6.65, 6.71, 6.76, 7.77, 8.62, 8.73, 9.35, 9.36, 9.39]

15.80

The evidence of my site inspections bears out the Applicants’ evidence concerning those parts of the quadrangle from which the tower would be visible. I draw particular attention to a Visibility Study diagram and images at pages 26 and 27 of Document CSCB36a. In producing images, it is clear that assumptions have been made concerning factors mentioned in the preceding paragraph. The illustrations are, nevertheless, helpful.

15.81

A key issue between supporters and objectors to the proposal is whether views from the upper terrace are of the same significance as those obtainable from the courtyard. Were those available from the upper terrace considered to be of little or no importance to the setting of the listed building objections on this ground fall away. [6.61, 6.62, 6.69, 7.74, 8.57, 8.58, 8.66, 9.30, 9.32]

15.82

While the layout of Somerset House includes subsidiary courts to the east and west, the geometric arrangement of four main ranges combine to form a quadrangle – a feature of many civic, cultural and educational buildings. It is a single, defined space all of which, in my opinion, carries equal value. The fact that visitors might favour being in one part rather than another does not alter the architectural concept or diminish the value of any less visited part. [6.61, 6.69, 6.70, 6.71, 7.79, 8.64, 9.32, 9.33]

15.83

In reality, most visitor’s first impression of the grandeur and quality of Somerset House will be gained from the upper terrace, immediately on emerging from the Strand entrance vestibule. At that point a visitor might be expected to pause. Any distinction that might be made between the courtyard and upper terrace for the purpose of weighing the significance of particular views or appreciating the setting of the listed building is, in my opinion, artificial. The possibility that more time might subsequently be spent in the courtyard area does not diminish the importance of views from the upper terrace. [6.61, 7.75, 8.57, 8.58, 8.64, 9.32]

15.84

The power of the composition of Somerset House lies in its studied symmetry. It is a quality that allows the building to accommodate minor departures of form, features or details - provided that they form an integral part of the building. [8.65, 9.30]

15.85

The appearance of other buildings above the north range is disturbing, even though the north range is more complex in its detail and architecturally more assertive than the other three ranges. They are a reminder of the context in which Somerset House now exists but they make no contribution to its special architectural or historic interest. Although the topmost part of the Doon Street tower would have less impact and would, perhaps, be less exposed to view from within the quadrangle, it would still detract from an appreciation of the architecture and symmetry of the composition. [6.63, 6.73, 6.74, 7.75, 7.77, 8.62, 8.67, 8.68, 9.34]

15.86

Individual responses to the appearance a tower rising above the southern skyline will vary and might well be determined by a viewer’s knowledge and expectations. These are matters to be weighed in the balance, together with an almost unique experience, in central London, of being able to withdraw from a busy urban environment. In comparison with conditions in the Strand, the quadrangle is a place into which the city barely intrudes, either visually or aurally. [6.62, 6.72, 6.73, 6.75, 6.83, 6.84, 6.85, 7.75, 7.78, 8.69, 8.72, 9.29, 9.30, 9.33, 9.40]

15.87

In conclusion, I consider the failure of the development proposed to preserve a setting appropriate to Somerset House, a Grade I listed building and an important historic asset justifies, by itself, withholding planning permission.”

The Secretary of State addressed the issue in paragraphs DL 29 to 31.

“29.

The Secretary of State has given very careful consideration to the impacts of the proposed development on the setting of Somerset House, and to the views of the principal parties, who disagree about the effect of the tower on the setting of Somerset House (IR15.77). She notes that the extent to which the building would be discernable in daytime views would depend largely on atmospheric conditions, light intensity and direction, the colour of facing materials and the reflectivity of the building’s outer surface (IR15.79). She further notes that while the view from the courtyard would not change, the view from the upper terrace of the quadrangle would be affected. For the reasons given at IR15.81-15.83, she agrees with the Inspector that views from the upper terrace are of equal importance to those from the courtyard.

30.

The Secretary of State notes that currently nothing that does not form part of Somerset House appears above the south, east and west ranges although buildings in the Strand are visible above the north range (IR15.76). She has taken into account that the topmost part of the Doon Street tower would have less impact than the buildings visible above the north range, and would, perhaps, be less exposed to view from within the quadrangle, but agrees with the Inspector at IR15.85 that it would still detract from an appreciation of the architecture and symmetry of the composition of the building. For the reasons given at IR15.72-IR15.86, she agrees with the Inspector that the proposed development fails to preserve a setting appropriate to Somerset House. However, she considers that the harm is somewhat mitigated by the non-visibility of the tower from the courtyard, and the variation in its visibility from the terrace, as well as by the fact that other more intrusive buildings are visible above the north range, and for these reasons, while she considers the harm is significant, she disagrees with the Inspector at IR15.87 that it is sufficiently great to justify, by itself,withholding planning permission.

31.

The Secretary of State concludes that, whilst the proposal would preserve the settings of the Royal Festival Hall and the Royal National Theatre, there would be significant harm to the setting of Somerset House, and that the proposal is therefore not in accordance with UDP Policy 45.”

The challenge on ground 4 is on the basis of both irrationality and the taking into account of immaterial considerations.

Mr King submitted that the reasoning of the Inspector in relation to Somerset House was powerful and cogent. He noted that the Secretary of State agreed with the Inspector that the proposed development would fail to preserve the setting of Somerset House and would do it significant harm. It was difficult to understand how she could agree with the Inspector’s analysis but then disagree with his conclusion. What she tried to do, he submitted, was to minimize the harm by claiming that it would be "somewhat mitigated" by three factors. They were firstly that it would not be possible to see the top of the tower from the courtyard; secondly that the visibility of the top of the tower from the upper terrace would vary; and thirdly that other existing buildings were more intrusive above the northern range when viewed from south to north. Mr King argued that those three factors could not mitigate the harm in the proper sense of lessening it. When the Inspector referred to those matters he was, in effect, saying “it could have been worse”. That was not at all the same as saying that those matters lessened the harm or made it better, which is what the Secretary of State seems to have meant. To take those matters into account in that way was to take into account immaterial considerations. Her conclusion was unjustified and inexplicable.

Both Mr Maurici and Mr Forsdick said that this was entirely a matter of balancing competing considerations which was for the Secretary of State alone. Mr Maurici pointed out that the Secretary of State had found that there would be significant harm by reason of the visibility of the tower over the Southern range of Somerset House and took that into account. She simply gave that harm different weight from the Inspector. Her disagreement was not with the proposition that the harm was significant, but with the proposition that it was so harmful that it justified refusal by itself (see IR 15.86). This was a Wednesbury challenge on the basis that the Secretary of State's decision was perverse or irrational. The threshold is high. It is not irrational to say that because the setting is already compromised to a degree in the northern view from the courtyard that further compromising it in the view to the south does not matter as much as if it were not. This was one of those cases, like R v Secretary of State for the Environment , Ex p. Gosport BC [1992] JPL 476, where the decision-maker need do no more than simply say ‘I disagree’.

I turn to the Inspector's consideration of the impact on the setting of Somerset House. In paragraph 15.77 he started by noting the points of disagreement between the parties and their essentially subjective nature. He followed this, in paragraphs 15.78 and 15.79 with an objective assessment of the visibility of the tower and the likely conclusions of an observer. In paragraphs 15 .80 to 15.83 he began with a finding of fact, based partly on his site inspection, about those parts of the quadrangle from which the tower would be visible. He then moved to a judgment that the view from the upper terrace deserves no less weight than the view from the courtyard. That was a value judgment that he explained well and it was perfectly open to him to make. In paragraph 15.84 he gave a brief account of the special quality of Somerset House as a starting point for his judgment that even though the proposed tower would have less impact and be less exposed to view than the other buildings to the north it would still detract from an appreciation of the architecture and symmetry of the building. His message in paragraph 15.86 was that responses to the proposal would be subjective. He said. "individual responses ... might well be determined by a viewer's knowledge and expectations." That is an interesting point. It could be read as meaning that while the knowledgeable and sensitive architectural eye might be offended by the sight of the proposed tower, that of the more casual (and possibly much more numerous) lay visitor might not be so troubled. It is a point that emphasises the complexity of the judgment that has to be made and the degree to which it relies upon the values of the decision-maker. The Inspector continues by drawing attention to the "almost unique experience ... of being able to withdraw from a busy urban environment" and that "the quadrangle is a place into which the city barely intrudes, either visually or aurally." Powerful though those points are they remain entirely a matter of weight. With the proposed tower in place it would still be reasonably arguable that Somerset House would offer "an almost unique experience" into which the city would still "barely intrude". That experience would be diminished to a degree but to what degree and how much the diminution would matter would still be a matter of judgment and weight. In the second paragraph 15.87 the Inspector reaches his conclusion that the failure to preserve the setting appropriate to Somerset House "justifies, by itself, withholding permission."

The Inspector's reasoning starts with four paragraphs in which he records the arguments and makes objective judgments of fact but thereafter it proceeds, perfectly properly, by making a series of value judgments. While the path is carefully paced out and easy to follow, when he reaches the end of it he could just as easily have turned in one direction as in the other. The Inspector says the failure to preserve the setting justifies by itself withholding permission. That judgment was entirely open to him and could not have been challenged on the basis that it was irrational or disclosed any other error of law. But if the Inspector had said that the failure to preserve the setting of Somerset house would amount to significant harm but would not be sufficiently great, by itself, to justify withholding planning permission, his judgment would have been equally unassailable and equally consistent with all he had said before. The reasoning in the preceding paragraphs compels neither one conclusion nor the other. That, it seems to me, is the answer to Mr King's question as to how the Secretary of State could have agreed with the analysis but disagreed with the conclusion.

I have some sympathy with Mr King's difficulties with the slightly uncomfortable use of the words "somewhat mitigated". However, it is a short step from 'the harm is not as bad as it could be' to 'the harm is not as bad as all that.' In my judgment the Secretary of Statement made it quite sufficiently clear that what she was doing was simply reaching a different judgment about the degree of harm, significant though she agreed that it was. This probably was one of those instances where it would have been enough for the Secretary of State to say no more than "I agree with what the Inspector said but reach a different conclusion." I am satisfied that that on a fair reading of the decision letter it is plain that is what she meant. There is nothing irrational about such a conclusion. She did not take into account any immaterial consideration. It was a planning judgment open to her.

All of the main parties had made submissions to the Inspector as to whether the benefits of the proposal might be secured by a different form of development. The developer, CSCB, gave evidence explaining in detail the choice of design including the other options that had been examined and rejected. (Paragraphs IR 6.22 -- 6.37). Lambeth LBC dealt with the same topic saying that it was not possible to predict how they or, perhaps, the GLA would respond to an alternative. A twin tower scheme would be likely to be controversial. There was considerable uncertainty that the benefits could be obtained by other means. (Paragraphs 7.89 and 7.90.). English Heritage referred to other options and discussions that had been held with it and asserted that there had been no genuine consultation or testing of alternatives. Without it, it could not be said that the current scheme was the only way of achieving the proposed benefits. A refusal of planning permission would allow further consideration of the design options. (Paragraphs 8.14 - 8.25).

The Inspector touched on this issue at paragraph IR 15.152. He said:

“15.152

I have addressed the issues identified and agreed by the main parties at the Pre-Inquiry Meeting held in December 2007. In my opinion, those issues incorporate all those matters about which the Secretary of State wished to be informed in order to determine the planning application. To the extent that alternative forms of development might be achievable, I have not dwelt upon these as they are subject to infinite variation and raise issues that go beyond those that are required to be addressed in order to establish the acceptability of the scheme which is the subject of this report. The application site is clearly suitable for development and I would expect alternative proposals to come forward for consideration if a decision is made in accordance with my recommendation.”

He added, at paragraph 16.8:

“The high quality of the design is a consideration to be taken into account, to the extent that it can be appreciated in local and distant views. However, I see no reason why an alternative scheme should not seek to achieve a similar high standard of design in a way more respectful of its surroundings. ”

The Secretary of State did not deal with this issue in her decision letter. That is the basis of English Heritage's complaint. It was submitted that the passages recorded by the Inspector (to which I have referred above) demonstrate that the parties did not regard this as a marginal or peripheral issue. It was a material consideration to which the Secretary of State should have had regard. The Inspector dealt with it. My attention was drawn to First Secretary of State and West End Green (Properties) Ltd v Sainsbury's Supermarkets Ltd [2007] EWCA Civ 1083 in support of the proposition that alternative designs which would avoid harm to heritage assets could be a material consideration. In that case, at paragraph 38, Keene LJ said:

"There is certainly no legal principle of which I am aware of that permission must be refused if a different scheme could achieve similar benefits with a lesser degree of harmful effects. In such a situation, permission may be refused but it does not have to be refused. The decision-maker is entitled to weigh the benefits and the disbenefits of the proposal before him and to decide (if that is his planning judgement) that the proposal is acceptable, even if an improved balance of benefits and disbenefits could be achieved by a different scheme. As Miss Lieven pointed out and as is obvious, and certainly to anyone with experience of the planning system, a refusal of permission will inevitably lead to delay and may mean considerable uncertainty about what results. A fresh application to the local planning authority would be required, by which time circumstances may have changed. The economics of redevelopment may be different, but the attitude of the local planning authority may not be exactly the same as before, and so on. Fresh planning judgements would have to be made on a new scheme. Inevitably the benefits of redevelopment would be later in coming. I therefore reject any proposition that the Secretary of State could logically only decide to refuse permission."

Mr King emphasises that he is not saying that the Secretary of State could only refuse permission. It is not that the Secretary of State dealt with the matter wrongly; the Secretary of State did not deal with it at all. Because the Secretary of State has found that there would be significant harm to Somerset house and therefore had to strike a balance between harm and benefit, it is important to know what she found on this point, which must go to the weight of benefits. Had she considered it, she might have concluded that the weight to be attached to benefits should be reduced.

Mr Maurici and Mr Forsdick point out that the Inspector did not identify this as a main issue in paragraph IR 15.2. Paragraph 15.152 is really a sweeping up exercise after all the main issues have been dealt with. The Secretary of State does not have to "refer to every material consideration, however insignificant, and to deal with every argument, however peripheral". (See the Bolton MDC case.) The argument about alternatives was not a principal controversial issue. It was peripheral and the Secretary of state was not required to refer to it expressly.

There is some force in Mr King's submissions. It would have been easy and probably helpful for the Secretary of State to address this point, however briefly. But the issue is whether the failure to do so amounts to an error of law. In my consideration of that I start with what the Inspector said in IR 15.152. As I read what he says about alternative forms of development, it is inaccurate to describe this as a paragraph in which he deals with the issue. On the contrary I read this as a paragraph in which he gives reasons for not dealing with it. He says he has not dwelt upon alternative forms of development "as they are subject to infinite variation and raise issues that go beyond those that are required to be addressed in order to establish the acceptability of the scheme". That is another way of saying that it is not an exercise that he considers to be useful. In the next sentence he simply remarks that he would expect alternative proposals to come forward if permission is refused. That uncontroversial statement of the obvious is a reason for not addressing the point, rather than the contrary. Nor does it seem to me that the last sentence of paragraph IR 16.8 takes the point any further.

Whatever the parties may have thought and argued, it is for the decision-maker to decide what considerations are important and what are peripheral and insignificant. It is not unknown for a tribunal to decide that some matter upon which the parties have expended a great deal of time and effort is, in the end, unimportant. In my judgement, the Inspector was plainly of the view that the issue of alternatives was one he did not have to resolve for the reasons he sketched out. That was a decision that was entirely open to him. The Secretary of State was entitled to adopt his approach and to do so without expressly saying in her decision letter that she agreed with him and thought she did not have to resolve it either. I therefore find against the Claimants on ground 5.

I shall deal with the challenge on ground 6 put forward by English Heritage and Westminster CC and then turn to the challenge advanced by Mr Harwood on behalf of Mr Ashton. Although these challenges raise different issues they have similarities and require examination of many of the same passages in the Inspector's report and the decision letter, so it is convenient to deal with them together.

English Heritage's argument about viability was that a grant of £23 million would be required to make the proposed development financially viable. Not only had this sum not been secured, there was no prospect of securing it so the proposed development was unlikely to happen and the claimed benefits would be unlikely to materialise. But the grant of permission would set a precedent that might be used to justify a more damaging and less beneficial proposal. The Inspector's consideration of the question of viability was bound up with his assessment of the developer's case for not providing affordable housing. He said:

“15.101

The Applicants’ case for not providing affordable housing is based on the premise that the development would deliver a sports centre and swimming pool in accordance with a site specific Major Development Opportunity identified in the Lambeth UDP (MDO 103) and at no public costs and under a financial arrangement intended to provide for the operation and maintenance of the facility for a period of 50 years. That, the Applicants argue, could not be achieved without the income generated by 329 units of private, open-market housing. The provision of any affordable housing would, it is said, undermine the financial basis of the scheme and preclude provision of the sports centre and swimming pool. [6.17, 6.20, 7.15, 7.16, 8.10, 8.26, 11.7, 11.15, 11.22, 11.35, 11.38, 11.40, 11.44, 11.55]

15.102

Arrangements by which the sports centre and swimming pool facility would be provided and operated are included in a section 106 agreement. Lambeth Council accepts that the omission of affordable housing falls within the exception provided for by UDP policy 16. The Greater London Authority is content that the Applicants have made a case for not providing affordable housing, having regard to the flexibility that LPC policy 3A.10 provides. The GLA is also satisfied that the development meets the Mayor’s guidance on affordable housing because it would carry the cost of providing social infrastructure. [3.6, 3.22, 7.1, 7.12, 11.18]

15.103

A financial appraisal of the scheme, undertaken by the Applicants, has been independently assessed on behalf of the GLA and Lambeth Council. Its conclusion that affordable housing cannot be provided without adversely affecting the scheme’s viability has been accepted. It is also significant that both the strategic and local planning authorities, both of whom appear strongly committed to securing affordable housing, are prepared to forego the provision of more than 160 affordable dwellings in order that a local deficiency in sports and leisure facilities can be addressed. [6.17, 6.21, 7.15, 7.16]

15.104

English Heritage, in objecting to the proposal, point out that viability depends on the receipt of grants, or `soft funding`, before commercial funding for the development can be obtained. The Applicants confirm that no such funding has been obtained. In the absence of viability, English Heritage argue, the scheme would either not proceed, notwithstanding a grant of planning permission, or the Applicants might return with financially more ambitious and environmentally more damaging proposals. [8.10, 8.11, 8.12]

15.105

Third party supporters focus on the benefits of the sports centre and swimming pool. Where comments are made, there is recognition of the need for cross subsidy from the profitable elements of the scheme. Many third party objectors acknowledge the benefits of the development but are concerned at the omission of affordable housing. Attention is drawn to a mixed use scheme elsewhere in the borough where leisure facilities have been provided alongside housing, 40% of which is affordable. [11.3, 11.8, 11.13, 11.18, 11.34, 11.38]

15.106

Comparison is also made by objectors between the current priorities of Coin Street Community Builders and the purpose for which they were originally formed. This included the provision of social housing. Lambeth, it is pointed out, is currently failing to meet its affordable housing targets while homelessness increases in the borough. In 2007 only 85 applicants were housed from Lambeth’s register of 11,000 households requiring accommodation. An analysis of housing supply and availability in the Waterloo area indicates that the supply of private housing is increasing at a faster rate than affordable housing. [11.40, 11.54, 11.60]

15.107

Looked at in isolation, the provision of 329 dwellings within the next ten years is important to achieving target established by its own policies and by the GLA. The South Bank is an attractive area in which to live. It is well situated in relation to central London and highly accessible. Accepting that there may be fluctuations in the housing market, the South Bank area is likely to maintain its attraction for particular sectors of the community and to offer choice, as advocated by Planning Policy Statement 3 Housing (PPS3). [5.8, 6.8, 7.11, 11.8]

. . . . . .

15.112

In conclusion, therefore, the development proposed would meet the aims and objectives of national, strategic and local plan policies concerned with housing and the scheme’s housing element would contribute significantly towards meeting a need for additional housing in Lambeth, albeit wholly within the private housing sector.

15.113

The Applicants reasons for omitting affordable housing withstand examination, notwithstanding criticisms of the financial robustness of the scheme. In arriving at this conclusion, I am conscious that there are factors that might, in times of economic uncertainty, affect the basis upon which viability is assessed. On balance, the provision of housing of the amount proposed is a benefit to be weighed in favour of the proposal.

. . . . . .

15.135

The viability of the scheme has been tested by the Applicants and jointly by Lambeth Council and the GLA. There remain uncertainties concerning the availability of grants which might need to be resolved before a commitment to implement the scheme for which planning permission is sought. No other viability appraisal has come forward to demonstrate that the scheme would not be viable, notwithstanding the value of the residential element, or that it would also be viable if affordable housing was provided. [7.16]”

The Secretary of State addressed the case for not providing affordable housing in paragraph 33:

“33.

The Secretary of State has carefully considered the case for not providing affordable housing. This rests on the fact that the development would deliver a sports centre and swimming pool, in accordance with a site specific Major Development Opportunity, at no public cost, and with the operation and maintenance of the facility funded for 50 years. A financial appraisal of the scheme has been independently assessed on behalf of the GLA and Lambeth Council, who have accepted its conclusion that affordable housing cannot be provided without adversely affecting the scheme’s viability (IR103). The Secretary of State sees no reason to disagree with this conclusion. For the reasons given in IR15.101-15.111, she agrees with the Inspector at IR15.113 that the reasons for not providing affordable housing as part of the scheme withstand examination. She also agrees that the omission of affordable housing in this case falls within the exceptions provided for in UDP and LPC housing policies because of the provision of social infrastructure (IR15.102), and considers therefore that the lack of provision of affordable housing is not in conflict with the development plan.”

Mr King said of paragraph 33 that it did not go far enough. The Inspector had acknowledged the economic uncertainty and the uncertainties as to grants and that these might need to be resolved before the scheme would be implemented. The Secretary of State, on the other hand, failed to consider whether the scheme was likely to be viable and therefore likely to be built or to consider the question of a damaging precedent. These were material considerations to which the Secretary of State failed to pay regard or alternatively if she did have regard to them she failed to give any adequate or intelligible reasons explaining how.

Mr Maurici submitted that the Secretary of State had effectively adopted the Inspector's conclusions in IR 15.113 and did not need to say more. The Secretary of State mentioned the financial appraisal of the scheme and the acceptance by the GLA and Lambeth of its conclusion and in that context referred to IR 15.103. IR 15.103 in its turn referred to the paragraphs recording the cases of the parties on the viability issue. He took me to IR 7.16, also cross-referenced by the Inspector in paragraph IR 15.135. In this passage the Inspector records the arguments of the Greater London Authority and Lambeth LBC in these words:

“The Applicants have submitted financial appraisals to Lambeth and to the GLA indicating that the proposed development could not provide both affordable housing and the sport and leisure facilities sought in connection with the development (CD2/26). These have been independently assessed and the assumptions upon which they are based found to be robust and the overall conclusion justified.” (CD2/27)

The complaint about setting a precedent was misconceived. English Heritage's argument proceeded on the basis that the proposed development would not be viable. But if it were indeed not viable it would not be capable of forming a precedent. To constitute a fallback position there has to be a realistic prospect of the fallback development coming forward.

In any event for precedent to be a material consideration it would have to amount to more than ‘mere fear or generalised concern’. (See Poundstretcher Ltd v Secretary of State for the Environment [1988] 3 PLR 69 at 74F.) There was nothing of any substance in the suggestion in this case.

I agree with Mr. Maurici. The Secretary of State had adopted the Inspector’s conclusion in IR 15.113 and did not need to say more. In the context of the Inspector’s comments she was entitled not to feel it necessary to say more about the issue of precedent.

Mr Ashton challenges the scheme on the single issue of the Secretary of State's alleged error in stating in paragraph 33 (above) that the leisure facilities would be provided "at no public cost". The sentence in which this phrase appears is evidently taken, almost word for word, from paragraph IR 15.101. Mr Harwood, in his careful and thorough submissions, took me through the evidence that dealt with the sources of funding for the development. In short, he submitted and none of the parties denied, it was perfectly plain that the scheme had already obtained and spent £890,000 of public money by the time of the inquiry and it was clearly contemplated that a substantial, although uncertain, proportion of the necessary further £23.4 million "soft funding" might be coming from sources that could only be described as "public". There was a minor debate about whether Lottery funding was properly described as being ‘at public cost’ or not but that was of little significance given that there was no basis for saying that all the funds would be from private sources and good reason for supposing the contrary.

Mr Forsdick, for CSCB, who also took me to the evidence in helpful detail, did not suggest that submission was wrong. On the contrary, his argument was that it was so clear from all the evidence, including the evidence as the Inspector recorded it in his report, that ‘public’ funding had already been received and that further public funding might well form a proportion of the necessary soft funding, that the Inspector cannot have meant to include the soft funding in his reference to ‘at no public cost’. It may be that the Inspector had in mind the evidence of Councillor McGlone (recorded by him at IR 11.18) that “The scheme represents the only available option of achieving facilities which, through a section 106 agreement, would be secured for 50 years with no cost to the taxpayer.” Mr Maurici suggested that by ‘public funding’ was meant further revenue funding direct from the Government, the GLA or the Council. It may be that submission gains force when read in the light of Cllr McGlone’s evidence.

Mr Harwood developed his argument by saying that the Inspector had simply made an error which the Secretary of State had blindly latched onto and repeated. This could be analysed as having had regard to an immaterial consideration which was unsupported, indeed contradicted, by the evidence. Or to put it another way, she had made an error of fact capable of vitiating her decision. In support of that submission I was taken to Simplex GE (Holdings) Ltd v Secretary of State for the Environment(1988) 57 P&CR 306 and E v Secretary of State for the HomeDepartment [2004] EWCA Civ 49. [2004] QB 1044. Or, finally, she had at least failed to give adequate reasons to explain her finding.

E v Secretary of State for the Home Department was a decision of the Court of Appeal arising from immigration appeal decisions. Carnwath LJ gave the judgment of the court and reviewed the authorities relating to mistakes of fact. He did not overlook the planning cases on the topic. He said of the Simplexcase, at paragraph 59:

"more significant, because it was a fully reasoned decision of the Court of Appeal, was another planning case, Simplex GE (Holdings) v Secretary of State for the Environment …. The Secretary of State in rejecting the planning appeal had mistakenly thought that the council had carried out a study relevant to the inclusion of the site in the Green Belt, whereas the study related only to what uses should be made within the Green Belt designation. The decision was challenged on the basis that "as a result of the error of fact" the minister had "taken into consideration matters which he was not entitled to consider": p 322. The Court of Appeal accepted that formulation, holding that the error was "undeniably a significant factor in the decision-making process" (p 327, per Purchas LJ), or was one which "was or may have been material": p 329, per Staughton LJ. The decision was therefore quashed."

Carnwath LJ went on to identify the underlying principle and concluded in paragraph 66 as follows:

"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. . . Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Boardcase. ([1999] 2 AC 330.) First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence of a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive part in the tribunal's reasoning."

Mr Harwood submits that first there was a mistake: it was as to the evidence on public funding for the scheme; second the facts about public funding for the scheme were established in the sense that they were uncontentious and objectively verifiable; thirdly neither the appellant nor his advisers were responsible for the mistake; fourthly this mistake must have played a material, though not necessarily a decisive part in the reasoning of the Secretary of State.

As to the fourth point Mr Harwood submitted that, given the Secretary of State's acceptance that the project was contrary to the development plan and caused harm, she had to find benefits which counterbalanced those factors. The reference to "at no public cost" was part of the bundle of benefits. Since that was wrong, she overestimated the benefits of the scheme. He argued that it was possible, indeed probable, that the Secretary of State would have refused the application if she had appreciated that substantial public funds had been and were likely to be required by the scheme. However, it was not necessary for him to go that far; it is enough that it was plain that the Secretary of State might have come to a different decision.

Mr Maurici submitted that what is plain is that the Secretary of State must have been well aware of the position in relation to the funding that had already been obtained and to the soft funding. She cannot have supposed that the Inspector was referring to that when she adopted his reference to "at no public cost" in her decision letter.

I agree that it is not clear what the Inspector in paragraph IR 15.101 and the Secretary of State in paragraph 33 meant by the phrase "at no public cost". It may well be that Mr Maurici's interpretation is right and that it was a reference to the developer being responsible for funding the revenue costs of the centre. In paragraph 47 of her overall conclusions the Secretary of State referred to “the provision and ongoing funding (for 50 years at no public cost) of a sports centre and swimming pool complex…” That was plainly a reference to revenue costs.

But it is much easier to say what they cannot have meant. I cannot accept that the Inspector, who gave a very thorough and careful account of the evidence on this matter, had overlooked or forgotten the public money already spent and the possibility, at the lowest, of further public money within the soft funding. Whatever he meant, he did not mean that. In my view, nobody who reads his report fairly and in context could think he did. Nor can I accept that the Secretary of State unthinkingly parroted a mistaken formula produced by the Inspector. It is clear from paragraph 47 that she had in mind that the revenue cost would fall on the developer, not the public purse. Furthermore it must not be forgotten that not only did the Secretary of State and her advisers have the Inspector's report before them, they would have had a copy of every significant document that had been put in evidence before the inquiry. As counsel helpfully demonstrated to me, the more closely that evidence is studied, the more obvious it is what the true position is. In the light of all that I am not prepared to say that the Inspector and then the Secretary of State must have made such a glaring and inexplicable error of fact.

On that basis, when Mr Ashton's case is put to the tests posed by Carnwath LJ in E v Secretary of State for the Home Department, it falls at the first fence. I do not accept that the Secretary of State made a mistake of fact or had regard to an immaterial consideration.

The final basis for Mr Ashton's challenge is that, if nothing else, the Secretary of State's reasons on this point are unintelligible and inadequate. Since I have already acknowledged that I cannot be sure what they mean it is obvious that I must have some sympathy for that submission. But I am not persuaded that this was something the Secretary of State was obliged to explain more fully. It was a material consideration certainly, but not, to use the language of the House of Lords in Bolton MDC a main issue in dispute. On the contrary, there seems to have been little or no dispute about the basic facts. There is no scope for drawing the inference that the decision-maker “has not fully understood the materiality of the matter to the decision”, to recall the words of Lord Keith.

In any event, even if there had been a failure to comply with the duty to give comprehensible reasons on this point, I would not consider that the interests of the applicant had been substantially prejudiced thereby. Mr Ashton’s interests must be judged, it seems to me, in the light of his participation in the planning process and the inquiry and any issues he particularly sought to pursue. On that basis I find that Mr Ashton’s claim that he has been substantially prejudiced by the Secretary of State’s lack of clarity rings rather hollow. His real interest in that lack of clarity seems rather to be that it gives him a basis to challenge the decision.

At the inquiry English Heritage argued that the planning obligation on its own was not sufficient to guarantee the payment of the annual running costs of the swimming pool and sports facilities. English Heritage asked that the section 106 agreement be amended, or a fresh agreement entered into "which would put in place an appropriate form of security -- such as a bond -- to guarantee the payment of the annual running costs of the swimming pool and sports facilities. The default provisions in the agreement, as drafted, would not achieve this and therefore cannot ensure that these facilities would remain open." (See IR 8.112.) In paragraph IR 8.113 and 8.114 the Inspector recorded English Heritage's reasons why Lambeth Council's response was not thought to be adequate. The Inspector's conclusions were set out at paragraph 15.145 to15.149 in these words:

“15.145

I set out earlier in this report, a summary of obligations contained in a section 106 agreement submitted at the Inquiry. Its most important provision is in the linkage it proposes to establish between the two main components of the scheme, namely the residential element and the leisure centre. English Heritage express concern that the agreement does not guarantee payment of the future running costs of the leisure centre, leaving open the prospect of it ceasing to operate through loss of funding. The annual payment is defined in the agreement as £412,000, not index linked and payable for 49 years. English Heritage consider that the matter should be addressed by means of a bond. [8.112, 14.2]

15.146

Lambeth Council points out that, should the Applicants default on payment to the operator, under the terms of the agreement payment is then due to the Council. Should payment not be made, the Council could enforce against the Applicants, or any successor in title, in the knowledge that the application site constituted a substantial asset. English Heritage are concerned that Coin Street Community Builders might dispose of their interest or manage the asset in a way that reduced its value.

15.147

In broad terms, the section 106 agreement meets the test for planning obligations set out in B5 of Annex B to Circular 05/2005 Planning Obligations. Setting aside the issue of a bond, I consider that its provisions fairly and reasonably relate in scale and kind to the development proposed. I can offer little legal or financial insight into the question of whether a performance bond is required in circumstances where a decision to grant planning permission might be influenced by certainty that a particular public benefit would be provided and retained for a long period.

15.148

The DCLG publication Planning Obligations: Practice Guidance, published in July 2006, offers advice on performance bonds, or sureties, and gives examples of circumstances in which they might be used. While it might be possible to speculate on the value of the Doon Street site and the development it could support, a great deal turns on whether that value would be maintained for the duration of the developer’s commitment, notwithstanding the fact that the level of that commitment would, in the absence of index linking, almost certainly reduce year by year.

15.149

Given the premise on which the scheme is based, I consider that a performance bond would provide the level of certainty that English Heritage suggest is missing from the agreement. The Secretary of State might wish to take further advice or seek additional information on the matter.”

The Secretary of state referred to those conclusions in paragraph 43:

“43.

The Secretary of State has considered the arguments that have been put forward in respect of whether a performance bond is required (IR15.145-146). She is content that the planning obligation makes adequate arrangements for payment of the money required to secure the future of the leisure centre over a 50 year period, thereby ensuring ongoing operation of this significant community benefit.”

Mr King submitted that her conclusion was irrational. In support of that contention he set out the arguments, essentially, that were rehearsed at the inquiry. Alternatively her reasons were unintelligible. Why, he asks rhetorically, was the Secretary of State ‘content’? The Secretary of State failed to grapple with English Heritage's submission and thereby erred in law. I was referred to the case of Mahajan v Secretary of State [2002] JPL 928, in which Ouseley J. pithily remarked (at paragraph 20) "Unintelligible reasons amount to no reasons at all. Inadequate reasons fail to grapple with the principal substantial issues that have been raised".

Mr Maurici responded that the Secretary of State certainly did grapple with the issue; she did so at paragraph 43 by agreeing with the submissions of Lambeth LBC. She was not required to do more.

The Inspector set out the arguments briefly but fairly in front of the Secretary of State. In that light she said "she is content that the planning obligation makes adequate arrangements for payment of the money required." That was her planning judgment. She did not need to say more in the context of this complex and substantial matter. The decision-maker is entitled to do no more than say that the arguments of one party are accepted. It was as much an answer to the tentative suggestion in the last sentence of IR 15.149 as it was to the arguments in paragraphs 15.145 and 15.146.

The challenge under this head is on the basis that the claimants are unable to understand what conclusions were reached on the principal controversial issues that were raised in their objections and they have been substantially prejudiced by the failure to provide adequate reasons.

It does not seem to me that this head adds anything to the grounds I have already considered. Both Mr King's submissions and my consideration of them dealt with the adequacy or otherwise of the reasons under the specific grounds.

Section 288 reads

“(1)

if any person --

(b)

is aggrieved by any action on the part of the Secretary of State

he may make application to the High Court under this section.”

The action includes making a decision on an appeal.

The word "aggrieved", used in several different statutes, has been the subject of much judicial examination. There was a time when the courts reluctantly felt obliged to interpret the word strictly. (See Buxton v Minister of Housing and Local Government[1961] 1 QB 278, especially Salmon J. at 282 - 285.) But a much less restrictive approach was emerging. In Attorney General of the Gambia v N'Jie [1961] AC 617, Lord Denning said –

“The words ‘person aggrieved’ are of wide import and should not be subject to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.”

This more relaxed approach was followed in Maurice v London County Council[1964] 2 QB 362 and Turner v Secretary of State for the Environment [1974] 28 P&CR 123, where Ackner J. reviewed the authorities and said (at page 138) –

“I see no merit in the proposition that a person who has merely been given notice of the existence of the inquiry at the request of and not by the requirement of the Secretary of State and whose right to attend and make his representations has resulted from the exercise of the inspector's discretion should be obliged to sit by and accept the decision, which, ex hypothesi , is bad in law. I can see no compelling matter of policy which requires this form of silence to be imposed on a person who has, again ex hypothesi , a clear grievance in law. On the other hand I see good reason, so long as the grounds of appeal are so restricted, for ensuring that any person who, in the ordinary sense of the word, is aggrieved by the decision, and certainly any person who has attended and made representations at the inquiry, should have the right to establish in the courts that the decision is bad in law because it is ultra vires or for some other good reason.”

Ackner J rejected the proposition that there was a distinction between an interested person who appeared at the discretion of the Inspector and a person who was required to be served. He said:

“In his report the inspector classifies the applicants, inter alios, as “interested persons,” a classification which is clearly justified by the facts. They were persons whom the appointed person in his discretion had allowed to appear at the inquiry and make representations in relation to the subject-matter of the inquiry, which representations had to be recorded by the inspector and transmitted with his, the inspector's, findings of fact and conclusions to the Secretary of State with a view to the Secretary of State accepting or rejecting those findings of fact and conclusions. Such persons have, in my judgment, impliedly the right that the Secretary of State in considering those representations shall act within the powers conferred on him by the statute and shall comply with the relevant requirements of the statute, in just the same way (as is conceded to be the case) as has a person who makes representations at the inquiry being a person on whom the Secretary of State has required notice of the inquiry to be served. I thus conclude that no valid differentiation can be made between a person who appears at an inquiry and makes his representations having had notice of the inquiry at the insistence of the Secretary of State and a person who appears and makes his representations by permission of the appointed person.”

This decision was relied upon by the Court of Appeal in Times Investment v Secretary of the State for the Environment and London Borough of Tower Hamlets(1990) 61 P&CR 98.

The Scottish case of Lardner v Renfrewshire Council [1992] SLT 1027 was concerned with the adoption of a local plan. The Lord President, Lord Rodger, said:

“The appellant is not a person whose own property is directly affected by the adoption of the local plan. On the other hand we readily accept that, as someone who lives near the site and uses it, he is not ‘a mere busybody’. It may be that, had the appellant lodged an objection to the plan and appeared at the inquiry, he would have fallen into the category of an ‘aggrieved person’ if he could have averred a genuine grievance of the kind contemplated by the section. (The equivalent in the Scottish legislation to s. 288.) The difficulty for the appellant in this case, however, is precisely that he did not object at the proper time and did not take part in the public inquiry at which issues relating to the draft plan were explored. Counsel accepted that the appellant's failure to use the prescribed statutory procedures caused serious difficulties for the appellant in now arguing that he is aggrieved …

The appellant in this case … is a member of the public who has an interest in what happens to the site because it is near him and he uses it, but on the other hand he did not avail himself of the opportunities which Parliament has afforded for participating in the process for adopting the local plan. We do not suggest, of course, that someone who has not objected to a draft plan or taken part in an inquiry can never be ‘a person aggrieved’. On the other hand, there is a difference between feeling aggrieved and being aggrieved: for the latter expression to be appropriate, some external basis for feeling ‘upset’ is required — some denial of or affront to his expectations or rights …. The particular circumstances of any case require to be considered and the question must always be whether the appellant can properly be said to be aggrieved by what has happened. In deciding that question it would usually be a relevant factor that, though no fault of counsel, the appellant has failed to state his objection at the appropriate stage of the procedure laid down by Parliament since that procedure is designed to allow objections and problems to be aired and a decision then to be reached by the Council. The nature of the grounds on which the appellant claims to be aggrieved may also be relevant.”

This quotation was relied upon in Morbaine Ltd v First Secretary of State and Stoke on Trent City [2004] EWHC 1078 (Admin), a case with unusual facts in which the court found that Morbaine Ltd was not aggrieved. The decision of the Court of Appeal in Eco-Energy (GB) Ltd v First Secretary of State[2004] EWCA CIV 1566 followed a few months later. Buxton LJ, giving the judgment of the court, said (at paragraph 7):

“The first question that arises is: who indeed can apply to the court under s.288? The judge considered, and there is before us, the case of Times Investment Ltd v Secretary of State for the Environment (1991) 61 P. & C.R. 98 . In my judgement, the upshot of that authority (which of course is binding on us) is that persons aggrieved under s.288 are either (1) the appellant in the planning process, or (2) someone who took a sufficiently active role in the planning process—that is to say, probably a substantial objector, not just somebody who objected and did no more about it—or (3) someone who has a relevant interest in the land. It will apparent that EE Ltd can only qualify as a person aggrieved under the third category.”

In submissions on behalf of the Secretary of State, considerable emphasis was put on Buxton LJ's second category, which, it was said, bound me to find that a person who was not an objector was not a person aggrieved. That case was determined on a rather narrow point, which was whether Eco-Energy Ltd fell within the third category. It was not necessary to the decision of the Court of Appeal to lay down a precise definition of the second category. I certainly do not read Buxton LJ as seeking to do so. It seems to me that under category 2 he states as an uncontroversial basic test for qualification "someone who took a sufficiently active role in the planning process". When he continues "probably a substantial objector, not someone who objected and did no more about it"(my underlining) that is, it seems to me, his indication of what he had in mind by taking a "sufficiently active role". It would not be enough simply to be an objector; a person would have to be a "substantial" one, in the sense that he actively pursued the objection by one means or another. But I do not understand Buxton LJ to be saying that only an objector - and a substantial one at that - could be aggrieved. Nor do I think he was using the term ‘objector’ in any technical sense or seeking to draw the distinction Ackner J addressed in Turner with an ‘interested party’. I do not read him as ruling out the possibility that someone not an objector, but who "took a sufficiently active role in the planning process" might, depending on the facts, be "aggrieved".

I was also shown the authorities concerned with "standing" to bring an application for judicial review in planning matters. Mr Harwood showed me the case of R (on the application of Erine Kides v South Cambridgeshire DC and another [2002] EWCA CIV 1370. At paragraph 132 Parker LJ, with whom Laws and Aldous LJJ agreed, said:

“132.

That leaves the issue of standing. As to that, it seems to me that there is an important distinction to be drawn between, on the one hand, a person who brings proceedings having no real or genuine interest in obtaining the relief sought, and on the other hand a person who, whilst legitimately and perhaps passionately interested in obtaining the relief sought, relies as grounds for seeking that relief on matters in which he has no personal interest.

133.

I cannot see how it can be just to debar a litigant who has a real and genuine interest in obtaining the relief which he seeks from relying, in support of his claim for that relief, on grounds (which may be good grounds) in which he has no personal interest.

134.

It seems to me that a litigant who has a real and genuine interest in challenging an administrative decision must be entitled to present his challenge on all available grounds.”

Mr Harwood also referred me to the Environmental Impact Assessment Directive, Article 10 (a) and Article 9 (3) of the Aarhus Convention. He pointed out that the present scheme is subject to an environmental impact assessment and the grant of planning permission is subject to the provisions of that Directive.

There has been debate about the facts of Mr Ashton's involvement in the planning process. There is no doubt that the proposed tower would directly affect him, like many others. He would be 260 metres away from it and it would cast a shadow on his balcony. He says he has been a member of the Waterloo Community Development Group for years and attended two meetings in the months before the inquiry, at one of which the proposals were on the agenda. Mr Ball (IR 11.3 2 - 11.42) and Mr Weighton (IR 11.51) gave evidence at the inquiry, as did other WCDG residents. Many objectors referred to the height and the adverse visual impact of the proposed tower (IR 12.14). Mr Ball put the point about the tower overshadowing residential areas in general terms (IR 11.41). Neither he nor Mr Weighton is recorded as having raised any point that has much bearing on the point Mr Ashton wishes to raise now. Mr Ashton says he attended the inquiry on two or three days, despite the fact that his name never appeared on the attendance sheet. In addition to oral submissions the Inspector considered written representations made at the inquiry stage, of which more than half were objectors (IR 12.11 - 12.12). Some stressed the adverse affect the proposed tower would have on them (IR 12.14).

On behalf of Mr Ashton, Mr Harwood submits that a broad view should be taken of the meaning of ‘aggrieved’, consistent with its natural and ordinary meaning. On a proper reading of Eco-Energy that word should not be confined to those who object formally. Nor should it be limited to those who take a direct part in the inquiry. An Inspector at a large inquiry with significant numbers of people who wish to oppose the proposals, whether or not they are technically objectors, will encourage those persons, where they can, to rely upon the submissions of others and not to feel that they will be disadvantaged in any way if they do not make any submissions themselves.

There was no reason for the definition of "aggrieved" to be any different to the courts' approach to "standing" in judicial review cases. Kides shows that this is very broad. Such a broad reading would also be consistent with Article 10 (a) of the Directive and the Aarhus Convention.

On the facts Mr Ashton was a concerned local resident directly affected by the proposals. He made a sensible decision to support WCDG in their objection, rather than seek to object himself. He did attend the inquiry on some days: there are many reasons why not everybody signs the attendance sheets, even if they do hear the Inspector encourage them to do so. If the point he takes is a good one, it should not matter that he did not raise it before the Inspector, particularly since the essence of Mr Ashton's point is that the Secretary of State made a mistake in striking the balance between benefits and harm.

Mr Maurici submitted that the tests for standing on an application for judicial review and for whether somebody is a "person aggrieved" on a statutory appeal under section 288, are different for good reason. Parliament could have provided that the tests were the same but chose not to do so. The authorities had respected the distinction.

There is a temptation to equate the test of "standing" in judicial review, as illustrated in Kidesand the test of being a person aggrieved. In my judgment that would be wrong. Parliament has chosen to use the word "aggrieved" as setting the threshold for being able to bring a statutory challenge to certain planning acts or orders. There are sound reasons for setting the threshold higher than on a judicial review. The right of statutory challenge comes at the end of a complex and formal series of opportunities for consultation, objection and hearing. It is understandable that Parliament should intend to limit the right of appeal to those who have played an active part in the process that is designed to ensure that the important issues are identified and properly examined as early in the process as possible, as Lord Rodger said in Lardner. I do not see that there is anything in Article 10(a) or in the Aarhus Convention that suggests that such an approach and the interpretation that the courts have given to the word ‘aggrieved’ needs to be modified.

I do not accept that to be "aggrieved" an applicant must necessarily have been an objector. For the reasons I have given above, I do not think that is what Buxton LJ said in Eco-Energy. I respectfully agree with what he actually did say: the question is whether the person in question took a "sufficiently active role in the planning process". That means considering whether the person claiming to be aggrieved has played a substantial role in the process, for example as an active objector or possibly as an active interested person. Whether a challenger will meet that test will always be a matter of fact and degree depending upon the circumstances. The cases show that the facts are endlessly varied.

Mr Ashton was neither an objector nor an ‘interested person’ in the technical sense. He did not seek to make oral submissions at the inquiry. (Nor did he seek to make written representations, which might have been more comfortable for somebody lacking in the confidence to make his point orally in public). Taking the evidence at its highest in his favour, it cannot be said that he played any part in the presentation of the WCDG case, nor any significant part in its preparation.

As Lord Rodger said in Lardner, the nature of the grounds on which the appellant claims to be aggrieved may also be relevant. As an illustration, there can be no doubt that the nature of the grounds English Heritage raise in relation to Somerset House in particular are of very serious particular concern to that body (and indeed to Westminster) and are matters for which it has a special responsibility. However, the point Mr Ashton seeks to take is not one in which he has any particular interest other than that it is, he maintains, an arguable point with which to challenge the decision. In my view, it is not without significance that none of the major objectors at the inquiry, including WCDG, have thought it worthwhile to challenge the Secretary of State's decision on that basis.

I do not doubt the genuineness of Mr Ashton’s interest in the outcome of the decision-making process but in my judgment he did not play a sufficiently active role in the planning process properly to be described as "aggrieved" within section 288. However, if I were wrong on that, I would dismiss his challenge on the merits for the reasons I have given above.

For all the reasons I have given, all these challenges to the Secretary of State’s decision are dismissed.