Fielder & Fladgate Llp v Westminster City Council

MR JUSTICE COLLINS: There are before me two claims challenging grants of planning permission for the development of a site to the south of Oxford Street towards its west end near Marble Arch, lying between Park Street to the west and North Audley Street to the east and North Row to the south. The development involved the demolition of the existing building known as Park House and its replacement with a building consisting of two basements, a ground floor and eight storeys above. This will contain commercial uses in the form of office and retail and in addition there will be some 39 flats providing residential accommodation. The existing building dated from the 1960s. It was of no architectural interest and incorporated a tower which was something of an eyesore. Its demolition was, therefore, regarded as a significant planning benefit. I use the past tense because the demolition has already taken place and, as I understand it, the development has in fact commenced in accordance with the permissions that have been granted.

The first claim is directed to a permission granted on 16 November 2006. Permission for judicial review was granted by Sir Michael Harrison on 2 April 2007. There are two material grounds now relied on. First the conclusion of the council that the relevant planning policies, then contained in an emerging UDP which had not then been but was on the point of being approved, had not been properly applied. Secondly, the reasons given for the grant in accordance with the requirements of article 22 of the Town and Country Planning (General Development Procedure Order) 1995, as amended, together with the requirement to set out a summary of the relevant policies, had not been complied with.

Permission having been granted, the developers, the interested party, thought it sensible to make a fresh application and did so. Permission was granted by the council on 1 May 2008. The grant and the conditions attached were identical to those applicable in the first permission. The only changes were to a section 106 agreement and the result of those changes was that the interested party would have to pay something in the region of £600,000 more. That situation had resulted from variations in calculations of the amounts payable for different matters because of the passage of time. The reasons for those payments will become clear in the course of this judgment.

Permission to seek judicial review of the second claim was refused on paper. There was a renewed application and it was ordered on 9 January 2009 that the permission should be considered at the same time as the hearing of the first claim and if permission were granted, the substantive claim should be dealt with as well. I decided that it was sensible to grant permission and, indeed, counsel for the defendant and the interested party did not seek to argue to the contrary, to waive all subsequent procedural steps and to deal with the substance of the claim.

It is recognised by counsel for the defendant and for the interested party that if I were to decide that the second planning permission should be quashed for any of the reasons relied on, it would inevitably follow that the first had to be quashed; it could not survive in a challenge to the second. If, on the other hand, I decided that the second should be upheld it would still be necessary to consider whether the first should be because of the differences in the payments under the section 106 agreement. It is perhaps obvious that the developer would probably want to rely on the first since it would save them a relatively substantial sum of money. Mr Katkowski for the council did not argue that I should adopt an approach which meant that the council gained from the quashing of the first. He recognised that would be contrary to his arguments that each of the planning permissions was valid and accordingly he did not seek to try to gain what he properly regarded as an unfair advantage in those circumstances.

It is convenient to consider the second permission first. The claimants, a firm of solicitors with offices in North Row assert that the council committee which granted planning permission failed to comply with relevant policies. They purported, it is said, to conclude that the application did comply with those policies. In truth it did not and so permission should not have been granted. The first step, therefore, is to identify the relevant policies. Since the proposed development increased the commercial floor space over that which existed in the old building, policy CENT 3 applied. That is a policy which relates to Westminster’s central area which includes Oxford Street. CENT 3 is headed Mixed-Use Development in Central Westminster and it contains five sub-paragraphs. It reads as follows:

“(A)

Where appropriate and practical, when increases in commercial floor space are proposed, the provision of self-contained residential accommodation with separate access, where physically possible, will be required. The residential accommodation should comprise an amount of floor space equivalent to the increase in commercial floor space in the CAZ [Central Activity Zone] and within the defined CAZ Frontages.

(B)

Where it is clearly not practical to provide residential accommodation on site, the City Council will seek the provision of the required residential accommodation on another site in the vicinity (see also policy COM 3).

(C)

Where it is clearly not appropriate or not practical to provide residential accommodation on site under (A) above, or clearly not practical to provide it off-site under (B) above, other uses which contribute to the character and function of that part of the CAZ or the CAZ Frontage should be provided as part of the same development.

(D)

Where housing has not been achieved under (A) or (B) or appropriate alternative uses provided under (C) above an appropriate financial contribution to the City Council’s affordable housing fund (see also policy H 4) is likely to be sought.

(E)

In all cases the City Council will expect appropriate planning obligations and benefits to be provided as set out in policy STRA 7 [which I do not in fact need to consider because it is no part of the claim in this case].”

It is clear that the requirements under 3(A) apply to the situation where there is said to be an under-provision of residential accommodation just as it applies to the failure to provide any residential accommodation at all. The reason for that lies in the second sentence of (A) which, on the face of it, indicates that the amount of residential floor space should be equivalent to the increase in commercial floor space. As will become clear, what has happened in this case is that there has been an increase, as I have already said, in residential accommodation but it does not in fact coincide with the increase in the commercial floor space as that increase is properly to be determined. Equally it is apparent that the policy as a whole requires what has been described as a hierarchical approach. That is to say, the primary obligation is (A). If (A) cannot be complied with for whatever reason, then one goes to (B). If (B) cannot be complied with, then to (C); and if (C) cannot be complied with, then finally to (D) which is the financial contribution in lieu.

There is material in the narrative which has been relied on by Mr Lockhart-Mummery. The relevant principles as they are described for the purposes of this case are set out in the following paragraphs in the policy document:

“1.55

The aim of policy CENT 3 is to promote mixed use development incorporating housing where appropriate and practical. This will contribute to the mix of uses on sites and will provide more housing in the city centre in accordance with the objectives of PPG 3. Where it is not possible to provide housing, then the Council will require the provision of other appropriate uses, either in additional floorspace or new uses, which contribute to the character and function of localities within the CAZ. If it is not possible to provide housing or other appropriate uses the City Council will expect appropriate payments to use towards the funding of affordable housing.

1.56

Policy CENT 3 sets out a clear hierarchy that indicates the priority the City Council attaches to the provision of housing in achieving mixed use commercial schemes in Central Westminster. It will be for applicants to demonstrate to the satisfaction of the City Council that it is not appropriate or practical to provide housing within the development site before the City Council will consider the appropriateness of alternative uses instead of the housing required under the policy. Applicants should also demonstrate to the satisfaction of the City Council that consideration has been given to the provision of the required housing on another site in the vicinity of the development site, if this is a practical option.”

And then under the heading Housing as the Priority Use as Part of Mixed Use, there is this:

“1.58

In assessing whether the residential requirement is appropriate or practical and in assessing the proportion of residential floor space that will be required the following will be taken into account: (a) the size and nature of the development; (b) the physical constraints of the site and buildings; (c) the relationship of the site to adjoining properties; (d) the character and function of the locality.”

Mr Lockhart-Mummery sought to rely on the use of the word “possible” in 1.55 and suggested that that indicated that the test was a particularly stringent one. I do not think that there is anything in that argument. The use of the word, “possible”, is clearly there to indicate no more than that. It would not be appropriate or practical in terms, for example, of (A). It does not and could not vary the appropriate test that is set out in the policy itself. I therefore do not think that any argument based on the use of the word “possible” assists the claimant’s case.

Recognising the need to meet the increased commercial floor space with an equivalent residential floor space, the development proposed 39 flats. The floor space that made up those 39 flats was based on a miscalculation of the additional commercial floor space since the additional floor space that was applicable to plant and machinery to serve the building had been omitted in the belief that it was not part of the relevant floor space which needed to be taken into account. The glossary to the policy, which is referred to in 1.54 of the narrative made it clear that the definition did include the plant and machinery but this error has led to the challenge under this policy since it is said that there was no material put before the committee which would have justified the conclusion that the provisions of the policy were met.

Once it was accepted, as it was, that residential accommodation would be included, it became necessary to consider policy H 4 which deals with affordable housing. It is H 4(c) which is particularly material. This reads, under the general heading, Provision of Affordable Housing:

“(c)

The City Council will require an appropriate form of affordable housing to be provided on-site as part of the development, except where the applicant can satisfactorily demonstrate that the affordable housingcannot be designed for transfer to, and managementby, a registered social landlord (RSL) or otherappropriate body. The amount of affordable housingrequired will be assessed in accordance withparagraphs 3.41 and 3.42 but the Council will takeinto account whether: (1) there will be particular costs associated with the development of the site or (2) the provision of affordable housing would make it difficult to meet other planning objectives that need to be given priority in developing the site.”

(Quote unchecked)

It is not necessary to read 3.41 or 3.42 of the narrative but the relevant paragraphs indicate that there is a minimum size of development which will give rise to the requirement for affordable housing. This development is above that threshold. But I should read 3.33 and 3.34. These provide, under the heading, “Priority for Onsite Provision”:

“3.33

In accordance with Government policy guidelines the City Council will expect that, where affordable housing is appropriate, it should be provided as part of the proposed development itself. This will help the City Council to plan the provision of affordable housing throughout the City. In assessing the suitability of sites for on-site provision, the City Council will take account of the criteria set out below.

3.34

The City Council will require applicants to provide on-site affordable housing unless they can satisfactorily show that: (a) it would not be reasonably practical to do so because the affordable housing cannot be designed for transfer and management to an RSL or other appropriate body or (b) providing on-site affordable housing would reduce the viability of the whole development proposal to such an extent that it would not proceed, or that the site would be developed for non-residential purposes.”

(Quote unchecked)

The approach, therefore, is that affordable housing will be required unless the developer can show that in the particular circumstances, it would not be practical or, to use the word in 3.33, “appropriate”, to provide it within that development. Although in 3.34(a), practicality relates, on the face of it, to the inability for it to be designed for transfer of management to an RSL or other appropriate body, the reality is that if it is not practical for it to be provided at all, it clearly would not be practical to say that it was able to be designed for transfer of management to an RSL. It may be that the limitation, or the apparent limitation in 3.34(a), is not a very satisfactory way of describing the matter. But it is obvious that the greater includes the lesser in the circumstances of any particular case.

Recognising that the proposal did not contain any affordable housing, the developers obtained a report from a firm EC Harris which was entitled, “Affordable Housing Strategy Report.” Its purpose was set out in the introduction in paragraph 1.2 in these terms:

“1.2

This Report reviews the options available for the development of the Park House site.

It then demonstrates how an off-site option for affordable housing is the only viable scheme for the developer. It does this by reviewing the following: whether it would be economically viable to provide affordable housing on site; what level of affordable housing, if any, could be accommodated in a viable scheme and the viability of benefits of the off-site solution.

They then pointed out that the scheme showed the affordable housing in the central portion of the development and that was considered to be the most appropriate. This is a significant point because the site is one which widens as one goes from east to west. The residential accommodation is designed to be included at the eastern end where the building is narrower. As it widens out, it is said, and there is no reason to indicate that this was not a reasonable view to take, it became more difficult to provide residential accommodation because there would be a need for light wells in order to enable the rooms to be properly illuminated and if that were done, the light available would not meet the standard that was necessary and which was applicable in Westminster. It was largely for that reason that accommodation beyond the eastern end of the site was not, it was said, a practical consideration. And in 4.4, it is said:

“The advantage of the central location is it allows the creation of a self-contained block with a separate core. This minimises the impact on the scheme as a whole and creates a block that can be managed separately. However, the introduction of the core and isolation of the uses does reduce the lettable retail space, which has a significant impact on the financial viability of the development.”

It is incidentally to be noted that in 4.3, the report says this:

“Locating the affordable housing at the west end will have an impact on the office entrance location and the office floor plates above, but more importantly the western end is very deep due to the progressive expanding shape of the site and would be considered less appropriate for residential use of any type.”

4.7 deals with the lightwell point which I have already referred to. It says:

“In order to be able to accommodate the balanced mix of units for the affordable housing within what is a deep building footprint and to keep the core to an acceptable size and efficiency ratio, it is necessary to incorporate light wells. Due to the deep plan and the amount of façade available to habitable rooms, bedrooms had to be located in the dark space towards the centre of the building requiring light wells to provide natural light and ventilation to these rooms. This is not desirable from a “living experience” point of view and in nearly all areas does not achieve the ADF [the ADF being a test of appropriate light to render rooms properly habitable].”

Since the Harris Report was concerned with affordable housing rather than residential accommodation generally, the first ground of the challenge to the first planning permission asserted that there was no evidence before the committee which could show that it was not appropriate or practical to meet the equivalence requirements. In the second challenge, therefore, the Harris organisation was asked to consider the matter more generally and to adapt the report accordingly. This they did. The purpose of the report was stated in paragraph 1.2, as follows:

“The Report reviews the options available for the development of the Park House site. It then demonstrates how it is not practical or viable to provide all of the residential accommodation within the development. It will do this by reviewing the requirements of policy around four key areas: whether it would be practical and economically viable to provide all of the housing on-site; the viability of an off-site provision; what level of market of affordable housing if any can be accommodated in a viable scheme and what other contributions are being made; and if a financial contribution in lieu is the only viable option and satisfies the policy requirements.

1.4

LS Park House Limited’s (hereinafter referred to as LS Park House) desire is to develop the Park House for mixed use; providing new retail, office and residential space. The requirement of Policy CENT 3 to match any increase in commercial floor space with residential accommodation is more than satisfied by the provision of 39 on-site residential units and the provision of alternative uses beneficial to that part of the Central Activities Zone (CAZ) in addition to a financial contribution.

1.10

The policy outlined in 1.2 above for the development of the Park House scheme is examined in this report.

1.11

The findings support the conclusion that the development of Park House with on-site affordable housing is not a viable proposition and that a financial contribution in lieu, in addition to the on-site provision of alternative beneficial uses to this part of the CAZ, in the form of quality retail and office floorspace is the only practical alternative to deliver the redevelopment within the timescale of the 2012 Olympic Games and to meet the aspirations of the new West End Company (NEWC), and the vision laid down in the draft Oxford Street, Regent Street and Bond Street Action Plan (ORB).”

There has, it seems, been a failure to read the amended plan through properly to ensure that the necessary adaptations have been properly carried out. I say that because the inclusion of the word “affordable” in 1.11 is, on the face of it, not appropriate because it is clear, when one reads the report as a whole, that Harris are saying that an increase of residential accommodation to meet precisely the increase in commercial floor space, was not either practical or viable. However, Mr Lockhart-Mummery relies on that sort of inclusion in the report where there has been a failure to marry the wording of the report to its scope, as extended, as an indication that this is merely what he describes as “tinkering” and does not properly achieve what it sets out to achieve.

Chapter 4 again deals with the key issues under consideration. It is introduced in 4.1, thus:

“Various studies to maximise the residential element and incorporate the affordable housing on-site have been undertaken by Hamilton Architects. The challenge has been to find a suitable location for the accommodation that can be provided in a self-contained block, enabling maintenance expenditure of communal space security to be separately controlled. This section looks at the inherent problems of achieving such a scheme that was both practical and viable.”

It seems to me that that makes clear beyond any doubt that the purpose behind the consideration was directed both at residential accommodation generally and at affordable housing as an element in that residential accommodation.

Thus, 4.3, which is in the same terms as was 4.3 in the first report, means that greater emphasis can be placed on the last few words, namely:

“... and would be considered less appropriate for residential use of any type.”

4.7 still deals with the question of accommodating the balanced mix of units for the affordable housing within what is a deep building footprint but the point of the need for lightwells in the wider part of the building is one which is clearly general and which is not limited to affordable housing. That that is so was demonstrated, if such demonstration was needed, by a memorandum sent by email to the development planning officer by a planning consultant who was acting for the developers which said this, insofar as material:

“You requested information regarding the justification for not fully providing the 50% residential matched floor space on- or off-site. As you surmised, the information is contained within the Report.”

Paragraph 5.14 of the report is the key section. It succinctly demonstrates that the developers have followed policy tests A, B, C and D set out in policy CENT 3 and COM 2 which is, as I understand it, in identical terms. The paragraph relates the justification for not providing a full 50 per cent residential match on-site or off-site to that given in the previous parts of the report but more specifically refers to the inability of LS Park House Limited to provide the affordable housing requirement on-or off-site. Then it reiterates the points which it says are set out in more detail in the report and in the third bullet point this is said:

“In providing additional on-site residential floorspace to meet the 50% target, the Report demonstrates that there are substantial costs associated with creating additional suitable residential units at Park House, for example in including longer cores, deep lightwells (which in any case produce compromised habitable rooms) and other ‘inefficiencies’. It is therefore not practical or appropriate to include additional residential floorspace at Park House.”

Going back to the Harris report, in 5.14, which is specifically referred to in that memorandum, this is said:

“As demonstrated above it is not practical to provide any additional residential floor space on-site and there is no appropriate alternative site; alternative additional benefits to this part of the CAZ in the form of increased quality retail and office floorspace are proposed as well as a financial contribution in lieu.”

And then there is a reference to how that financial contribution can be quantified and it is, indeed, substantial.

The officer’s report to the committee contains the following observations in relation to this issue:

“An objection has been received on the grounds that the proposal fails to comply with Policy CENT 3 on the grounds that the increase in commercial floorspace is not matched by an equivalent amount of residential floorspace. This objection is one of the grounds of the Judicial Review and given this, it is considered that the Committee should consider the issues raised by this policy afresh, and give no weight to their previous deliberations on these issues. [So far, as Mr Lockhart-Mummery accepts, so good.]

The applicants have put forward an argument under Part (A) of policy CENT 3 as to why is it is not practical or appropriate to provide thefull on-site residential requirement in this instance. In particular the applicants make reference to: (I) the provision of increased residential floorspace on-site would involve substantial costs to the requirement for longer cores and deep lightwells; (II) the provision of additional residential units, due to the depth of the building would require central lightwells, which would reduce the quality of the accommodation. In particular, habitable rooms would have to be located adjacent to central deep lightwells and could not be designed to achieve minimum internal light standards.

Given the above constraints identified by the applicants, it is accepted that there are difficulties in providing additional residential onsite. In particular, with regard to the applicants’ comment regarding the inability to achieve internal light standards, the applicants have based their assessments on the Average Daylight Factor (ADF) which is a less rigorous test than the Vertical Sky Component (VSC) test that the City Council normally requires to be satisfied. In this regard, it can be argued that the standard of accommodation would be far lower in terms of provision of daylight than that which the City Council would ordinarily find acceptable. The applicants’ arguments regarding the appropriateness and practicality of additional residential accommodation are therefore persuasive.”

Under the heading “Compliance with Policy CENT 3”, the conclusion is this:

“It is considered that the applicants have satisfactorily demonstrated that it is not practical or appropriate to provide additional residential either on or off site. As alternative uses have not been achieved, the applicants have agreed to address the shortfall in residential by a financial contribution to the City Council’s affordable housing fund, in accordance with the formula set out in Policy CENT 3. This would amount to £2,955,000. It is considered that a financial contribution is acceptable and would comply with the requirements of Policy CENT 3.”

Finally, one should have regard to what was considered at the meeting itself because, of course, it is the decision of the committee and not the report of the officer which is the decision under final attack. It is often the case that matters are discussed at a committee which may go beyond, or may put a gloss on, what was in the officer’s report. I have before me a note which in fact was prepared by a representative of the solicitors on behalf of the developers but which has not been challenged in any way as being an accurate report of what was said at the meeting. In 3.16 it states this:

“MP [that is one of the members of the committee; there were, fact four] queried certain distances on the plans and, following the carrying out of his own calculation, queried whether the residential accommodation could be moved around to overcome the problems of practicality identified by the Applicant.

KO, [that is to say, the senior officer in the planning department] however, stated that the same problems would be faced regardless of how the accommodation was configured. KO stated that the need for corridors and logical office floorplates was one of the constraints on alternative configurations.

Following this discussion, MP confirmed that he was satisfied with the Applicant’s contention that additional residential accommodation was impractical on-site.

3.17

AM [the chairman] took the Committee through the four steps of the CENT 3 Policy. With regard to Part A, he stated that he was convinced by the Applicant’s arguments. He stated that the residential accommodation would be of poor quality if pushed into the middle of the building and that he did not believe that the Committee would approve an application which included residential units lit only by an internal light well. He also stated that the Applicant could not be expected to provide large unused cores in the proposed building. He recognised that large unlet areas would affect viability. On this basis, AM considered that the provision of on-site residential accommodation which matched the commercial uplift would be impractical.”

Thus it is apparent that the committee members did consider for themselves the question of practicality in relation to the provision of the equivalent amount of residential accommodation and decided that it would not, indeed, have been practical. In reaching that conclusion, they did, of course, take account of the Harris report and no doubt were, to an extent, swayed by what was there set out. Mr Lockhart-Mummery accepts that he can only succeed on this ground if he can show that it was not reasonable for the committee to have placed any weight upon, or relied upon, the report to produce the result which they found to have been produced by it. I have gone through the report, so far as material. It seems to me that it is quite impossible to suggest that the committee were not entitled, as a matter of judgment, to conclude as they did. I say as a matter of judgment because it is apparent that the question of practicality or appropriateness does involve an exercise of judgment. It is not a question of black and white. It is not a policy which, for example, provides that such and such must be contained in a particular area. There is for example a policy that requires that a building in Oxford Street providing retail accommodation must have retail available in basement, ground floor and first floor. That is a sort of provision which is in absolute terms. CENT 3 is not such a provision. This was, in my view, a perfectly proper exercise, by the committee, of a planning judgment. In those circumstances, he has failed to discharge the burden upon him of showing that what they did was perverse.

The second ground relied on is a submission that the committee should not have limited themselves to a consideration of the actual proposal. If it did not, on its face, comply with the requirements of the policy, they should have sent it back to the drawing board. Mr Lockhart-Mummery submitted that it beggared belief that on a site of this size, there could not be provided a sufficiency of residential accommodation that would be equivalent to the commercial floor space which was added.

It seems to me that one has to bear in mind the circumstances of the individual case. The plan that had been put forward depended, it is true, upon a mistaken calculation of the increase in commercial floor space. Nevertheless, in the judgment of the committee, it was a development that should, if possible, be permitted to go ahead because it was beneficial and overcame what had been an unsatisfactory building in this part of Oxford Street. It is to be noted that the narrative in 1.58, indicates that the size and nature of the development and the physical constraints of the site and buildings was something that would be taken into account. It was apparent that they accepted that the nature of the site, that is to say the widening from east to west, meant that it was impractical to provide residential accommodation beyond the eastern end. There were also financial considerations which obviously were material in the sense that it would be difficult to provide so much space. The test in 3(A) is whether it is appropriate and practical and there is clearly a distinction to be drawn between those two adjectives. There is no definition of what is to be covered by “appropriate” or indeed what is to be covered by “practical”, hence, as I have said, there is an exercise of judgment. It was in my view open to the committee to consider generally the desirability of the development and in the circumstances, having regard to the error that was made and the reasons for the error and the indication of the difficulty to put it no higher, of providing extra residential accommodation over that which was provided by the scheme, that it would not be, in all the circumstances of this case, appropriate to require the matter to be reconsidered. That judgment is one which they were clearly entitled to apply and in those circumstances I reject that second ground.

The third ground is not relied on because there was a question raised about CENT B as to whether it would be practical to provide residential accommodation off-site. That ground has not been pursued and therefore I do not need to consider that aspect. But it is said that the committee failed to properly consider that other uses contributing to the character and function could be provided. This was dealt with in the officer’s report, as follows:

“With regard to the provision of alternative uses (Part C), the applicants assert that the enhanced retail and office floorspace contribute to the character of this part of the CAZ. The increase of retail floorspace within this part of the West End International Shopping Centre is welcomed and would also meet one of the main aims of the Oxford Street, Regent Street and Bond Street Action Plan which seeks the creation of high quality retail space. Despite this, given that the increase in retail accommodation is only part of the overall uplift of commercial floorspace on this site, it is not considered to off-set the policy requirement to provide additional residential accommodation.”

Mr Lockhart-Mummery says there the officers recognise that 3(C) is not met. The officer then goes on to assert that the financial contribution was acceptable but nowhere does the officer consider, or draw the committee’s attention to the need in the circumstances, to consider whether, indeed, other appropriate uses could be included. If matters stopped there, there might be some apparent validity in that submission but matters do not stop there because it is plain from the notes from the record of the meeting that this very issue was indeed taken into account. In 3.19 of the representative’s note, this is said:

“With regard to part C he [that is the chairman] noted that while the retail space is welcome, it would be impractical and inappropriate to provide alternative additional uses on site such as a hotel or leisure use in addition to retail in order to satisfy this criterion within the policy.”

Mr Lockhart-Mummery says he does not mention all the possible other additional uses that might be considered. That, with respect, is not a good argument. It is plain that the committee did consider the possibility of alternative uses (those are given as examples) and decided as they were, in my view, entitled to decide as a matter of planning judgment, that no other uses were suitable. There is nothing in that ground.

I turn therefore to consider H 4 and this can be dealt with relatively briefly. The officer’s report says, so far as material:

“It is recognised, given the design of this building, that it would be both difficult and impractical to provide a separate residential core and reception area without compromising the retail floorplates on this site. In considering the previous application on this site, the Committee considered that the practical arguments put forward by the applicant were persuasive. The provision of affordable housing on-site has not been subject to Judicial Review and it is considered that substantial weight can be given to the Committee’s previous resolution on this issue.

The applicants have undertaken an assessment of the viability of the scheme using the GLA Toolkit which concludes that it is not economically viable to provide on site affordable housing at even 10% provision. This assessment, however, has not been submitted as part of this application, as it contains commercially sensitive information. Neither has it been verified by the GLA. In this regard, Members should bear in mind that only limited weight can be attached to the applicants’ assertion that the provision of affordable housing would not be viable without that further information being submitted and without this information being assessed by the Council’s independent consultants.”

That is an entirely appropriate direction to the committee. Mr Lockhart-Mummery quarrels with the reference to limited weight, submitting, as I understand it, that no weight should have been attached but that is an impossible argument and in the end he accepted that it was a relevant consideration although he suggested, as indeed the officer has recommended, that little weight should be attached to it; but the extent to which it was appropriate to apply weight is essentially a matter for the judgment of the committee and there are umpteen authorities which make in plain that weight is not a matter which can be taken into account in establishing an error of law as a general proposition. The officer’s report continues:

“The applicants’ Affordable Housing Strategy has also been reviewed by the City Council’s Housing Supply Manager who concludes that without the full viability assessment being provided, then it cannot be demonstrated that it would not be financially viable for the development to proceed with the provision of on-site affordable housing.”

The document in question is a memorandum from the Housing Association supply manager to the planning committee. It concludes thus:

“As the applicants have raised a number of key arguments against the provision of on-site affordable housing, the housing department makes the following recommendations: (a) that full details of Land Securities’ financial appraisal be released to officers of the City Council so that any financial justification supporting the non-provision of affordable housing on site can be clearly understood; (b) that the applicant provide written evidence from a minimum of two registered social landlords nominated by the City Council demonstrating that it would not be practical for an RSL to take handover of affordable housing units at Park House with any design features or service charges associated with the scheme which contribute to the non-viability of affordable housing at Park House could not be designed out.”

(Quote unchecked)

That recommendation, (b), is one which it would be pointless to pursue if the view was properly taken that affordable housing was not practical in this site for the reasons that have been set out in the Harris report. That view was formed. Accordingly, as I say, it was quite unnecessary and would have taken the matter no further to have referred it to an RSL.

Finally, going back to the officer’s report, this is the conclusion:

“However, given the previous resolution on this site, it is considered that sufficient justification has been provided to demonstrate that it would be difficult to provide affordable housing on site. In such circumstances, the payment of a financial contribution of £3,414,000 would be in accordance with Policy H 4 and is therefore considered acceptable. The objection on grounds that the affordable housing should be provided on site is not, therefore, considered to be sustainable.”

Mr Lockhart-Mummery raises two points against the report. First he says it is limited to the design of the building and he makes the same point as he made in relation to CENT 3, namely that it was not right for the committee simply to accept the design as presented. I have already dealt with that point in relation to CENT 3. It is no better in relation to H 4. Further he relies on the use of the word “difficult” in the conclusion and submits that that is applying a test which is far below that which is appropriate having regard to the policy. As to that, it is necessary to bear in mind that the committee dealing with the application are experienced. They know what the policies are. They are used to applying those policies and they are not going to be swayed by the use of the word “difficult” insofar as that is suggested to be a substitute for the appropriate test in the policy. Accordingly I see nothing in the complaint about the use of the word “difficult”. In fact the question of affordable housing was raised specifically at the meeting. One of the members was concerned at the lack of affordable housing and in 3.21 of the notes of the meeting we see this:

“BG [that is the committee member in question] queried why no affordable housing was being provided. KO clarified that the issue of affordable housing was different from CENT 3. He reminded members that in the original Park House application they had accepted the Applicant’s viability arguments without seeing the figures for themselves. KO noted that viability figures had been shown to Officers, although the applicant had not left copies of these figures with Officers. KO queried whether on this occasion, as with the original application, BG was happy not to view the viability figures. She confirmed that she did not require sight of the figures.”

A point is made that it was wrong to take account of the viability point without seeing the figures. It seems to me that had the officers taken the view that the viability figures shown to them did not support and were not capable of supporting the contention put forward by the developers, then they would have been under a duty to inform the committee in their report that that was indeed their view. It is true that the weight to be attached to the contention is obviously going to be limited by virtue of the fact that the committee have not seen the figures. Nonetheless in the circumstances described in paragraph 3.21, it seems to me that the committee was entitled to attach some weight to that aspect in the knowledge that the figures had at least been passed by and considered by the officer responsible for reporting on the application in question. Then the relevant member came back to the question of affordable housing and in 3.25 we find this:

“BG stated that she was not happy with regard to affordable housing. She said that she recalled that when the application for the original scheme was made, affordable housing was offered at Wilton Plaza. KO explained that following the Wilton Plaza Judicial Review in relation to that, the Committee had agreed that a commuted sum was acceptable. KO said that the Committee could not say that a commuted was unacceptable now, since this had been accepted last time.

3.26

AM [that is the chairman] concluded by stating that the rest of the Committee disagreed with BG on the above issue. He then reaffirmed that the scheme was approved.”

Of course, the committee’s decision is that of a majority. Accordingly my judgment is that there is nothing in the complaint made in relation to affordable housing. Thus I reject the complaints made against the second planning permission and dismiss that claim.

I turn, therefore, to consider the first. I have already referred to ground 1. The officer report dealt with the matter thus, under the heading “Compliance with Policy CENT 3”:

“Policy CENT 3 states that where appropriate and practical, when increases in commercial floor space are proposed, the provision of self-contained residential accommodation will be required. Residential floor space should comprise an amount of floor space equivalent to the increase in commercial. According to the floor space figures ... [then he goes into the mistake and miscalculation that was made] the applicants have agreed to address this shortfall of residential by a financial contribution to the City Council’s affordable housing fund in accordance with the formula set out in policy CENT 3. This will amount to £2,667,000 [it had gone up to £2,299,000 by the time of the second application]. Given that this commercial floor space relates to plant only, it is considered that the combination of the provision of 39 off-site residential units and the financial contribution is acceptable and would comply with the requirements of policy CENT 3.”

(Quote unchecked)

Mr Lockhart-Mummery submits that this fails to direct his attention to the need to consider the hierarchical approach in CENT 3 and he says that it was for the committee itself to consider that and to direct its attention to the precise requirements of the policy. Again, one must not forget that the committee is an expert committee in the sense that it is a committee of members who are well versed in applying the council’s policies and although I have no evidence as to what was actually said before the committee, it would be, to say the least, strange if the committee had not had in mind what actually were the requirements of the policy. It is said that this was a pragmatic and reasonable judgment; that the need for the development meant that payment in lieu in the circumstances was the right solution. It may be argued that this is to an extent a borderline decision and that it would have been better had the report referred specifically to the requirements of the policy. Nonetheless, I am not persuaded in all the circumstances that the approach adopted by the officer, combined with what one knows about the experience of the committee, gives any validity to this particular ground.

The second ground is that there was a failure to comply with the requirements of article 22. That there was such a failure, there can, in my view, be no doubt. Mr Katkowski accepted that there was a failure to set out a summary of the policies. He did not seek to argue before me that there was a compliance with the obligation to give reasons although he did not concede that there was a failure. The reason for that was because he recognised that the decision in relation to what was required for reasons was a decision of mine and he accepted that I was unlikely to change my mind and, indeed, it has been at least not frowned on by the Court of Appeal in a case which considered the exercise of discretion in relation to a failure to comply with article 22 and was aware of the approach which I had adopted. Accordingly it seems to me that it is unnecessary to go into any detail as to what actually was put forward in the ground in relation to reasons. As I say, there was a failure.

That then gives rise to a question as to whether, in all the circumstances, I should exercise discretion to refuse relief. It is submitted that I should by both Mr Katkowski and Mr Lindblom. First it is said there is no prejudice to the claimant. Indeed it is obvious that this site is going to have to be developed at some stage and the precise nature of that development could not, so it would seem, really be a major concern for the claimant. Certainly it is difficult to see what prejudice it has suffered as a result of the decision in question. But the second question is whether the same decision would, in any event, have been reached or, to put it the other way round, is it reasonably possible that a different decision would have been reached? One has to look at the situation as at the time the decision was made. But it is certainly permissible to consider what has happened since and we know that since there has been a decision to grant precisely the same planning permission on precisely the same terms and conditions. The only changes are in the section 106 agreement in that the sum now is something just over £6 million. Before, it would have been something between £500,000 and £600,000 less. Mr Katkowski submitted that it was only if any variations were in respect of matters in issue in any challenge, that discretion should not be exercised in favour of upholding the decision. I am not prepared to go that far although I have not given detailed consideration to the point since apart from anything else, there is clearly a public interest in ensuring that proper permissions are granted, that is to say, permissions with proper conditions, if such conditions are necessary, and therefore there is a wider public interest than merely the interests of the individual claimant in challenging a decision. But of course here I have to deal with the facts of this case and since the only change is the financial change, it seems to me that it is quite impossible to say other than that the decision would inevitably have been the same had the council given proper reasons. However, there is a relief that is appropriate in the circumstances and that is to require that proper reasons are given and put on the register because as was made clear from the decision of mine in Tratt v Horsham District Council [2007] EWHC 1485 (Admin), one of the purposes of requiring the giving of reasons is that it is put on the register. Indeed there is an obligation that they should be put on the register under, I think, article 20. This is to enable anyone who is interested to see why permission was granted. Accordingly, that relief is appropriate and will be granted. The precise terms of it perhaps is a matter for possible discussion or agreement between counsel. But subject to that, I do not grant any relief which involves the quashing of the permission.

Simply as a postscript, I only add this. The interested party produced for me bundles in an A5 form. These are much easier to carry around and take up very much less space than bundles in the usual form. It seems to me that not only would the court not disapprove but quite the contrary, the court would welcome the submission of bundles, particularly in cases which have a quasi commercial flavour and where solicitors are able to do it in this way, in this form. They are easier to store. They are easier to carry around and I would encourage the submission of cases, authorities, or of bundles generally, in this form unless there is a very good reason not to. Obviously, for example, photographs may well have to come separately but there is no great problem in a separate bundle of photographs.

In those circumstances, subject to the limited relief on the first claim, the second is dismissed and those are the orders that I propose to make.