QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| HISTORIC BUILDINGS AND MONUMENTS COMMISSION FOR ENGLAND
WESTMINSTER CITY COUNCIL
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
LONDON BOROUGH of LAMBETH COUNCIL
GREATER LONDON AUTHORITY
COIN STREET COMMUNITY BUILDERS
(instructed by Messrs Bircham Dyson Bell LLP) for the 1st and 2nd Claimants
Mr Richard Harwood (instructed by Richard Buxton Solicitors) for the 3rd Claimant
Mr James Maurici (instructed by Treasury Solicitor) for the 1st Defendant
Mr David Forsdick (instructed by SJ Berwin Solicitors) for the 4th Defendant
The 2nd and 3rd Defendants did not appear and were not represented
Hearing dates: 15, 16, 17 June 2009
Crown Copyright ©
His Honour Judge Mole QC :
"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 Inspector's Report
"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."
"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.
"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)
"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."
"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."
"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's Decision Letter
"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.
Grounds for Challenge
"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."
"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."
"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."
"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  1 WLR 525 , 540], when 'all other known facts and circumstances appear to point overwhelmingly' to a different decision."
(ii) Development in a conservation area or affecting the setting of a listed building
"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."
"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."
"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."
"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)."
"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."
"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."
"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 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]"
"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)."
Conclusion on Grounds 1, 2 and 3.
Ground 4 – the impact on the setting of Somerset House.
"15.72 There is no dispute concerning the architectural quality of Somerset House. It is an outstanding example of late 18th 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."
"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."
Conclusion on Ground 4
Ground five - Alternative means of securing benefits
"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."
"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. "
"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."
Conclusion on Ground 5
Ground 6 - Viability and Mr Ashton's challenge.
"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]"
"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."
"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)
Mr Ashton's Challenge
"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."
"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 Board case. ( 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."
Ground 7 – The Bond
"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."
"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."
Ground 8 – Inadequate Reasons
Is Mr Ashton a "person aggrieved"?
"(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 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."
"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."
"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."
"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."
"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."
"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 Ashton's position
Submissions on 'aggrieved'