Organisation for Promotion of Environmental Needs Ltd, R (on the application of) v London Borough of Hackney

MR JUSTICE COLLINS:

1. This is a claim for judicial review of the decision of the defendant council of 5 March 2014 granting planning permission for the development of twenty-three houses in Dalston Terrace within the London Borough of Hackney.

The issue which has led to this claim is whether the facade to about half of the relevant buildings can be preserved. The facade is important because it was constructed at dates variously given as 1807 and 1813, but perhaps that is not particularly material. It was when London was expanding at that time the construction of residential terraces, of which this was one. It is or was one of the last remaining in this particular area. There has been widespread disruption through lapse of time, to some extent no doubt enemy action during the war and otherwise. This particular terrace (if that is the correct word to use) used to be under the control of the Greater London Council. When that body was abolished it was transferred to Hackney. Hackney sold the buildings in 1984 to what is described in the somewhat pejorative sense as off-shore owners. They appear unfortunately not to have undertaken any work to preserve the buildings in question. By 2002 or thereabouts they had got into a state of considerable disrepair, and there had before then been a fire which had destroyed at least two of them in the middle of the row. In the result, Hackney bought them back.

3. There has been some criticism that still no work or no substantial work was done to put them back into a state of reasonable repair. But consideration was clearly given and has been given as to what form of development can properly take place. The use of the terrace was originally residential but in Victorian times (again precise dates do not matter but probably in the 1870s or thereabouts) on the ground floor or ground to first-floor level extensions were built to provide for retail trading. So there were shop premises sticking out from and covering what had formed the front gardens of the residential buildings. That remained the position and remains the position so far as use which is appropriate for this particular terrace is concerned.

4. It is necessary briefly to go through the history. The council produced in December 2009 what was described as a planning and design guidance. It is not necessary to go into any detail but at paragraph 6.7 of that document, under the heading "Conservation", the following was stated:

5. The relevant policies which were put in place in order to deal with any development in this conservation area are, so far as material, as follows. First, Policy DTC O3 Heritage provides so far as material (these provisions followed the meeting of the cabinet of the council in December 2012):

6. There is a more specific policy which relates to Dalston Lane which is DTC 28. This provides under the heading "Dalston Lane Character Area":

8. There was an application lodged in August 2012 for development which did retain the facades. The council engaged a firm, Peter Dann Ltd who were experts in this field, to give what is described as a stage 2 report. In fact, that report had been provided earlier in October 2011. It considered then that it was possible to retain the facades. The relevant passage in that report is at paragraph 2.1.1 which gives an option, and the option that was then considered feasible was for retaining the front facade only.

9. There had been a report from a firm called Sandberg about the brick work. It was then considered that notwithstanding some defects in the brickwork, it would be possible to maintain the facades. What the Dann report stated, in summary, was that they recommended that the new floor and roof structure be properly tied to the facade to provide lateral strength in the wall. It noted that the compressive strength in the brickwork varied considerably and that there was little, as it was put, "dependable reserve capacity" in the walls. Where signs of movement were shown, tying to the timber floor of the roof should be sufficient to arrest further movement in the majority of cases. They had not been able to inspect the supports by means above ground level but there needed to be provision for cleaning and repainting. They recommended replacement with appropriate bricks where necessary.

10. What they did say (paragraph 2.3) was that walls to be retained would required temporary propping and bracing. The brickwork and mortar were of low quality and would require some remedial works, particularly to external faces. The low quality of brickwork increased the risk of future failures. It would be difficult to justify any new works that increased the load on the building site or its foundations. This could be negated by the provision of the new load-bearing structures within the new build portion of the scheme.

11. Thus at that stage the information before the council from what was a relatively general report indicated that retention of the facades was certainly possible and the view of the council clearly was that that ought to occur in any development that was proposed. Indeed, the application in August 2012 was on the basis that the facade would be retained.

12. The council by now owned most of the properties in question, perhaps not at that stage all but in fact enough, certainly the bulk. It was decided that there should be a contract awarded to a building firm or housing development firm. That was done. The firm in question is Murphy Homes Ltd who are the interested party but who have not appeared before me albeit they did file an acknowledgement of service resisting the grant of permission. The points they make are essentially the same points as could have been made by the council. So it is not surprising that they have decided not to attend. Apart from anything else, they would have been, even if there was success, highly unlikely to have received any costs having regard to the approach of this court.

13. In January 2013 the Area Action Plan was adopted and that essentially contained or led to the policies to which I have already been referred. However it was decided that it was necessary to obtain a more detailed report from Peter Dann Ltd. That report was in due course produced. It is dated June 2013 and relates to the application for planning permission which was lodged in August 2012. This is an important document in the light of the matters that have been raised by the claimants and indeed the defence that is put forward on behalf of the council. The introduction at paragraph 3.1, so far as material, reads as follows:

14. It goes on:

16. In paragraph 3.3 it is noted that the survey identified that the remaining brickwork facade was generally of poor condition throughout, having suffered significant and general deterioration from years of weathering and lack of maintenance. The facade, it was said, was significantly out of plumb. Given its height, with most areas more than thirty millimetres out of plumb and in some areas in excess of one-hundred millimetres out of plumb, there was significant bowing from dishing across most of the elevations. Much of the elevation was therefore outside normal design limits for verticality. It would be in their opinion unsafe to attempt to retain the facade following any future demolition of the internal walls or floors or remaining roofs. It went on:

17. There is this paragraph which is of importance:

18. The conclusions, so far as material, were that the brickwork would not withstand the process of removing the existing paint and render finishes without significant damage and reduced capacity. There was a high risk of collapse during any attempt to retain the existing facades due to the degree of existing bowing, dishing and out of plumb to which I have already referred. Due to the extent of the defects and the inherent structural instability, it would be impossible for the facade to support any additional loading that might be imposed by the proposed additional floor at mansard level.

19. The final conclusion was this:

21. In dealing with the Sandberg tests, it is said they have shown that neither the existing facing bricks nor the offside stone bricks were suitable for re-use in re-building facades. Their low compressive strength meant that they could not be used where any substantial load-bearing capacity was required. Their high water absorbance meant that they should not be used in an external alignment where they would be susceptible to substantial frost damage. The recommendation therefore was to source new bricks with similar colour and textural qualities to match the original bricks and agree the use of these with the local authority conservation office.

22. That report was, so far as retention is concerned, to say the least, pessimistic. The submissions made by Mr Reed and that the report was obtained for the purpose of the planning application that had been put forward and should be read in that limited context. It was not intended, he submits, to deal with general matters. It seems to me that that submission simply cannot stand in the light of the passages to which I have referred. Some of it does relate to the particular development, for example the weight-bearing at mansard level, but some of it is far more general. Essentially, the view taken then - because of the plumbing, dishing, etc and the condition of the bricks themselves - was that it would not be possible to retain them at all. Furthermore, there was a real risk that in the course of any work that had to be carried out to enable the development to take place the facades simply would not stand up.

23. Accordingly, I do not accept the contention that this report should have been looked at as only dealing with the significant development proposal that had been put forward.

24. However the council - because no doubt of its concern to try to ensure if it really was at all possible that the facade remain which was consistent with the approach that it had set out that led to the planning polices to which I have already referred - decided that it would be right to obtain a further report to see whether the pessimistic view of Peter Dann could be relied upon. That report was obtained from a firm, Alan Baxter. The report helpfully contains photographs and consideration of the specific individual properties along the terrace. What it boils down to - before I go into any detail - is that essentially Nos 66 to 76, with the possible exception of No 66, were such that due to damage etc it would not be possible to retain the existing facade. As it happens, that is about half the terrace because Nos 60 to 64 had been destroyed by fire so there was no longer any facade to retain. But, as we shall see, the Baxter Report did indicate that in the author's view it would be possible to retain the facades for Nos 48 to 56. There was a single possibility in 66A but perhaps that on its own would not necessarily be particularly satisfactory if everything around it had to be the subject of re-build.

25. However clearly Nos 48 to 58 formed a substantial part of the terrace and if that could possibly be retained that was a desirable result. Indeed, it was a result which would have been in accordance with the planning policies which were in place. The report considered specifically the feasibility of keeping the facade. So far as material, at paragraph 5.4, it said:

26. The reporter then goes on to say in relation to Nos 66 to 66A and No 58 that those facades are so poor that they could not be feasibly retained in any scheme to repair the existing building or redevelop the site and incorporate the facades into such a redevelopment. It goes on that other facades - 66 and 56 -

27. That clearly challenged the view of Peter Dann on the condition of the bricks and the likelihood of them being able to be maintained in any way in the future, but also in relation to the proposed development indicated that it was not feasible to have open-plan as part of the retail development. It is, I think, envisaged in what was said that were it not to be open-plan for the retail units so that the existing facade would not have to be affected, then, in the view of the author of the Baxter Report, a relevant retained facade in that part of the terrace was a real possibility.

27. The council decided that in the circumstances it would be appropriate to obtain a further report from Peter Dann. That was after planning permission was granted. But the grant of planning permission was subject to a condition which is material, the condition in question being no. 3 which provided as follows:

29. It is obvious that although that talks about the historic planning structure, it is aimed essentially at the facades and the desirability of retaining and the need to retain the facades.

30. The view was taken overall that that was not in the end something that could be achievable. So, the decision was reached that that condition should be removed. Initially, the relevant officer took the view that it was open to him without there being a fresh application to remove that condition. However once that had happened there was a demolition attempt or demolition was sought to be commenced in November 2013 but the decision was quickly reached that that was not appropriate and that there was a need for a further application. I think it was the claimants' concerns which led to that change of heart.

31. So it was that in January 2014 the application which was approved in March and which is the subject of this claim was lodged. The application was for the demolition and re-build of the front facade. So it was limited, as that was all that was needed, to the ability to demolish the existing facades because it was considered the only way in which this development could go ahead, that is to say the development which had already been approved in principle in 2012.

32. The point is made by Mr Reed that the planning permission granted in 2012 was specifically on the basis that the facades would be retained, and that was something which had clearly to be borne in mind because this application was simply an application to remove the existing facades and thus meant that there was a conflict with the basis upon which the original planning permission had been granted. That seems to me to be an argument which owes more to form than substance because the reality is when one adds together the two applications - because we know that the one made in January 2014 was approved - one has the position that there is now a permission which does enable the development, which was the subject of the original permission to go ahead with the demolition of the facades.

33. Further, the decision was made to obtain a further report from Peter Dann essentially to comment on the Alan Baxter Report. That - again, so far as material - contested the view given in the Baxter Report that the Dann conclusions relating to brick strength were flawed. They disagreed with that and made the point that well-maintained London stock brick buildings could be simply retained and re-used. They had been involved in many such projects but this particular facade was what was described as mostly third-class poor quality bricks which were usually reserved for internal use and not expected in well-built external sides. They were therefore built using poor quality material and now - some two-hundred years later - they were in poor condition. Such third-class brick work was very easily damaged and did not perform well when being drilled and fixed with resin anchors; it simply crushed. The bolts were torqued up, meaning that no or little tensile strength could be achieved. It went on:

34. Finally, there was the paragraph (item 5.6 of the Baxter Report) referring to -

35. It is obvious that that report, if accepted, establishes that in the view of Peter Dann the bricks in the facade would simply not be capable - when cleaned - of being able to be retained in place. That does not depend upon the nature of any development that was proposed. It was simply a conclusion, on the face of it, that any development would be likely to have that effect.

36. That is not necessarily a view that dominates. It is right to say, as is apparent, that when one comes to the committee meeting which decided the issue other views were put forward. Other reports from experts in their own field did indicate that there were contrary views which meant that the facades might well have been able to remain.

37. The original report of the officers for the meeting of 5 March is dated 24 February. The new report from Peter Dann in the form of a letter to the interested party is dated 10 February. The defendant's legal officer has indicated that the planning officer is no longer employed by the council but he was able to speak to him and he indicated that he had not seen the new Peter Dann letter when he drafted the report of 24 February. There is evidence on behalf of the claimants that it was on the council's website at least from 10 February, which is the date it bears. That may well be so. It does not mean necessarily that the officer had it drawn to his attention. He should have done. It may be there was some mix-up in the council. It may even be that albeit it is dated 24 February, the report was drafted at an earlier date. It matters not in my judgment because what is important is whether the full information was properly put before the committee at the relevant time.

38. There was a subsequent addendum report, to which I will come, which did deal with the matter and clearly dealt with it having regard to the new Dann approach. I call it "new approach"; it was perhaps better to be regarded as confirmation that there were real concerns about the ability to retain the facades. It is not - and cannot be suggested - that there was anything that could be regarded as a deliberate attempt to avoid putting confirmation to the committee. Indeed, it was obviously entirely counter-productive so far as the council is concerned if that had been the position. The committee needed to know all, and, in the end, in my judgment, quite clearly did subject to one point to which I will in due course come.

39. The officer's main report is a lengthy document and it certainly covers, on the face of it, all material matters subject to the additional Dann report. So far as the loss of the facade is concerned, at paragraph 4.7.8 the report stated:

40. There was reference to various paragraphs of the National Planning Policy Framework ("NPPF") which were said to be material. I will come to one in due course.

41. At paragraph 4.7.19 it is stated under the heading "Considerations":

43. At paragraph 6.2 the point is made that since the grant of planning permission more detailed structural survey work had been undertaken which raised significant structural issues with the retained building facades and considered that their retention as part of the above redevelopment scheme was no longer feasible. At paragraph 6.5.7 it is said:

At paragraph 6.6.1 it is stated:

45. The loss of historic building fabric has also been considered to result in some less than substantial harm in a conservation area (see NPPF paragraph 134). So it is made perfectly clear that the proposal is, on the face of it, contrary to the relevant planning policies because of the harmful - albeit less than substantially harmful - effect upon the conservation area. Mr Reed has not submitted that it was wrong to regard the harm as being less than substantial within the meaning of that term in the NPPF.

46. It was made clear that the retention of the front facade was part of the approved development and now no longer possible, and demolition could be supported subject to further consideration. Paragraphs 6.8.1 and 2 have been said to be important. Accordingly I recite them in full:

47. There was an addendum produced which was for the day of hearing which sought to answer and certainly deal with responses that had been made. It said there were significant numbers of responses, a total of some seven-hundred-and-eighty-five, and it seems that the bulk were opposed to demolition of the facades. Perhaps that is not altogether surprising. What happened was that the officer set out a number of these opposition points and gave responses. The officer maintained the view that this was an application which should be permitted. Essentially the poor quality of the bricks was referred to. In those circumstances the bricks were not in a fit state to be used once cleaned. The fact was that the facade was out of plumb, it needed to bear loading from its own weight even if carrying no weight and it was not really fit for the purpose.

48. The claimants' objections relied upon their own reports and the Alan Baxter Report and made the point that there could be an alternative which did not involve open plan. That ought to be considered. The comment was -

49. There was a similar attack by the Hackney Society. The officer's response was that Peter Dann who advised had a wealth of experience in dealing with this sort of situation and the position of the reports, to the contrary, as regards the brickwork durability was not accepted. The condition of the bricks, it was said, was not considered to be of sufficient quality or in adequate condition to be retained as part of the previous approved development.

50. At the meeting, evidence was given by four objectors, one of whom was representing the claimants, which essentially made the points to which I have already referred. Three witnesses gave evidence, including the representative of Peter Dann, that is to say an engineer and two architects in support of the scheme. They noted that after gaining close access to the buildings it was found that they were in an appalling state. Therefore, it was not possible to retain the facade of the terrace. This decision, it is said, was challenged with an independent assessment. Stock brick was found to be of a poorer quality than expected from the Georgian era than properties from a similar time. It was felt that the bricks were already at the end of their life. Therefore, methods of strengthening the terrace would not be possible.

51. There was reference to a question from the chair regarding potential for alternative to demolition as the previously approved application in 2012 had agreed the retention of the site. In response, it was explained that there were two stages to the scheme. Parts of the building included in phase 1 were in a worse state of disrepair, with two of those properties being unsafe to enter. Phase 2 included the more attractive buildings although the works required to repair the facade of the buildings would make them unsafe. That is slightly ambiguous. Phase 1 refers to the numbers in which, on any view, the retention of the facade was not maintainable. Phase 2 was slightly better but the works required, it was said in answer to the chair, would make the buildings unsafe if the facade had to be repaired. It is not entirely clear, I am bound to say, how that question was answered. Nonetheless, it is entirely consistent clearly with the evidence that is recorded that the state of the bricks was such that it was quite impossible, in view of Peter Dann, to maintain the existing facades.

52. Mr Reed contends that there was a distinction drawn between what the officers had said in their original report and the addendum. There was no proper explanation given as to why that change had occurred. Furthermore, he submits that the original approach had been clearly to say that the retention of the facades was feasible and that there was an alternative which could achieve that result.

53. It is plain, in my view, from the extracts that I have cited and the overall picture, that the officer never stated that in positive terms. Certainly it was said that there might be the possibility of a different development which produced that result but looking at the reports as a whole it was apparent that the state of the brickwork was such that really it was not possible to retain, even on the better part of the terrace, the existing facade. It was not only the state of the brickwork but also the out of plumb and what is called dishing and bowing, all of which meant that the facades were inherently unstable and unsafe and there was a real likelihood that any works needed to carry out any redevelopment would result in their fall and thus their loss.

54. It seems to me that all that is apparent on a fair consideration of the generality of the reports and it is not possible to say that the Dann reports were limited only to the existing proposal for development. Clearly, when read in context and as a whole, they dealt with the whole of the question of whether development could take place with the retention of the facades. I recognise that there was a different view which was clearly put before the committee on behalf of those who objected but I can only intervene if persuaded that there was an error of law. Whether, on the facts and as a matter of judgment, the committee were right or wrong is not a matter which I can take into account because I am not concerned - and this court cannot be concerned - with matters of planning judgment.

55. Mr Reed does not - because he recognises he could not possibly - assert that it was irrational for the committee, provided they received proper information from their officers, to prefer the evidence given on behalf of those who supported the application rather than those who opposed it. That was a matter for the committee to judge on the basis of the material and information that was put before them. However Mr Reed submits, and properly submits, that there was an obligation - because this was contrary to the conservation planning system - that consideration should be given to whether there was indeed an alternative which would have created lesser harm. It is clear beyond any argument that retention of the facades would mean less harm to the conservation area. Indeed, it is probably fair to say no harm. The thrust of his submission is that there has been a failure to receive sufficient information to enable a judgment properly to be formed as to whether there was indeed any possible alternative.

56. The approach that came through the officers and was based properly upon the Dann reports - not only the Dann reports but also the Sandberg consideration as to the state of the bricks - meant that any development would not be possible without the destruction of the facades. Therefore, since the facades had to go, general demolition and rebuild was the only sensible option whatever was the development proposal. That it was to be retail at ground level with residential above was in accordance with the planning provisions and maintenance of what had been the use hitherto. Indeed, when pressed on an argument relating to paragraph 134 of the NPPF, Mr Reed did not suggest - indeed, could not suggest - that there was any other use in planning terms which was appropriate or possible for this particular terrace.

57. It seems that in those circumstances it is impossible for me to decide that there was an error of law in the decision that was reached. It is of course regrettable that these - like so many buildings in London - whether through neglect, accident (because obviously the fire was an element) or enemy action in some cases - have been lost. But, sadly, such losses are sometimes inevitable. I cannot say the council was wrong in law in deciding on the information that was properly before the Committee that this particular loss was other than inevitable. It has of course taken steps to ensure that any rebuild is in such a way as is sympathetic to the form of the original street scene there and chimes in with what is left, as I understand it, on the other side of Dalston Lane. Therefore, at least - albeit obviously it is not as good as retaining – this means that the look will not be damaged any more than is necessary so that any rebuild will be as sympathetic as possible.

58. I have referred to paragraph 134 of the NPPF because that is noted as having relevance in the officer's report and Mr Reed has raised an argument based upon it. Paragraphs 134 and 133 together deal with issues where proposed development would lead to harm to a designated heritage asset. Paragraph 133 deals with a case where the development would lead to substantial harm, a total loss; paragraph 134, which is material here, to where a development would lead to less than substantial harm. It reads as follows:

59. An argument has been raised on optimum viable use. What is essentially submitted by Mr Reed is that that includes consideration of the form of any development and that must be optimum, as it were, in the manner in which it seeks to protect the conservation area which it would otherwise harm.

60. However it seems to me that that reference to "optimum viable use" is, in the context of a case where there is an alternative that may exist, in respect of what use can there be. This in my view is supported by the Planning Practice Guidance ("PPG") that has been issued which, under the heading "What is a viable use for a heritage asset and how is it taken into account in planning decisions?", says, amongst other things:

62. But, here, there is only one viable use and, accordingly, as it seems to me, the PPG makes clear that what is then to be considered is, as paragraph 134 indicates, that the harm must be weighed against the public benefits of the proposal. In fact, in the circumstances of this case it does not seem to me that reference to the optimum viable use in paragraph 134 really adds anything because the policy in question makes it clear that it is important in Dalston Lane to maintain the conservation area and not to allow any development which does harm it unless of course there is no alternative or the approach must be that only a development which does the least harm should be allowed.

63. It is obvious that there must be development of this terrace. At the moment it is in an appallingly run-down delapidated state and frankly is an eyesore as it stands. Accordingly, having seen the photographs, a development - and a development as soon as reasonably practicable - is necessary. And that is a benefit which, in my view, can properly be taken into account in deciding whether - notwithstanding the harm from the demolition - the proposal should be approved.

64. I would emphasise that in my view the argument about the precise meaning of paragraph 134 is not central to this claim. I should perhaps say that the construction that I have put forward is one that comes from me and is not one that was submitted to me by the parties. One must always be careful about points that are raised to by a judge. I am satisfied that that is the only sensible approach to paragraph 134. As I say, on the facts of this case, it does not affect the result.

65. There was another ground which was taken which depended upon an argument that the council, as owners, had not made any decision which enabled the demolition to take place because all they had had was the original planning application which had been allowed which preserved the existence - or at least a part - of the facade. It was contended that there was unlawfulness in that failing. I do not need to go into that because Mr Reed has accepted that were I against him - as I am - in relation to his attack on the grant of permission, that is not a matter which he can properly raise on its own. Obviously, if I had been with him on the planning permission, it would have been an unnecessary argument on its own.

66. In the circumstances - not without considerable sympathy for the approach of the objectors, and indeed in fairness to the council they equally wanted if it was possible to retain the facades but they have decided, and in my judgment have lawfully decided, that that was not possible and therefore the proposal should be allowed to go ahead - accordingly, I must dismiss this claim.

MR FINDLAY: I am grateful. Your Lordship will recall the claimants are in receipt of a protective costs order or effectively so. I understand it is £10,000. It has been agreed that my costs would exceed that. I simply ask for an order for costs in my favour of £10,000.

MR JUSTICE COLLINS: Mr Reed, you cannot resist that, can you?

MR REED: No.

MR JUSTICE COLLINS: In that case I shall have to make the order.

MR REED: I ask for permission to appeal. There is a real prospect of success on the basis of the interpretation that I put forward before your Lordship. I put my case in that simple way.

MR JUSTICE COLLINS: No. I do not agree with you. You will have to persuade the Court of Appeal to grant permission if you wish to take the matter further.

MR REED: Thank you.

MR JUSTICE COLLINS: Thank you both for your assistance.