QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| HARRINGAY MEAT TRADERS LIMITED
|- and -
|THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
|- and -
|(1) LONDON BOROUGH OF HACKNEY and (2) THE GREATER LONDON AUTHORITY
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Richard Honey (instructed by Treasury Solicitor) for the Defendant
Richard Glover QC (instructed by Eversheds LLP) for the Second Interested Party
The First Interested Party was not represented
Hearing dates: 31 May and 1 June 2012
(Final written submissions received on 18 June 2012)
Crown Copyright ©
The Hon. Mr. Justice McCombe:
"for a building up to 15 storeys in height, including up to two levels of basement car parking and a ground floor comprising entrances to upper and lower floors along with refuse and plant areas and commercial space within Use Classes A1, A2, A3, B1, C1, D1 and/or D2. Above this there would be commercial development comprising at least 1950 m² of Class B1 space. Above this there would be either more Class B1, Class C1 (hotel) and/or Class C3 (residential development)…"
(B) The Law
"The question which the local planning authority, and in his turn the Secretary of State for the Environment, had to answer in this case was therefore a relatively simple one. It was capable of being determined, on the assumption that the proposal had been cancelled on the relevant date, in the light of the circumstances existing at that date and by application of ordinary planning principles. The question was whether reasons existed for the refusal of planning permission which were quite independent of any scheme for the acquisition of the land for the use for the purposes of the proposed [CPO scheme]."
i) The proceedings before the court are not for reviewing the planning merits of a decision: R (Newsmith Stainless Limited.) v Secretary of State  EWHC 74 (Admin).
ii) Matters of fact and planning judgment are for the decision-maker: City of Edinburgh v Secretary of State  1 WLR 1447.
iii) Decision letters are not to be analysed over-zealously. They must be read in a straightforward manner, recognising that they are addressed to parties well versed in the issues in the case; the decision-maker is only required to deal with substantial points that have been raised and not with every argument, however peripheral. The reasons given can be briefly stated and what is necessary is to enable a reader to understand why the matter was decided as it was and what conclusions were reached on the main issues. (See S. Bucks DC v Porter (No. 2)  1 WLR 1953.)
(C) The Grounds of Challenge
i) Fairness. HMT says that it was given no fair opportunity to make representations to the Inspector in respect of his position (as reported by him to the parties at the start of the Inquiry) as Inspector in an earlier case, affecting land in a nearby area. The case had been the subject of a challenge in court: see Rooff Ltd. v Secretary of State  EWCA Civ 435.
ii) Traffic. HMT argues that the conclusion of the Inspector relating to traffic on the road passing the Site was based on inadequate evidence and was inadequately dealt with during oral evidence.
iii) Services and Facilities. It is submitted that the Inspector failed to give adequate reasons in respect of his conclusions on this aspect of the case.
iv) Residential use. It is argued that the Inspector reached unjustifiable conclusions on the evidence as to the potential areas for residential development under the Development Plan, in particular with regard to the contents of the additional materials to be found in the Lower Lea Valley Joint Area Action Plan and Opportunity Framework Interim Draft (Hackney) ("JAAP").
v) Bus routes. It is said that the Inspector impermissibly placed reliance on the large modern bus station and the Stratford mainline station which were features of the area under the CPO scheme, but failed to have regard to another bus interchange facility south of the Channel Tunnel Rail Link the creation of which was an obligation under development plans for Stratford International Station and "Stratford City" existing at the relevant date.
vi) Classes A1, A3 and D1. The argument is that the Inspector made a flawed decision that A1 and A3 classes had to be confined to "kiosks" subsumed into "broader brush land uses without affecting the fair market value of the land" and that "Small-scale Class A1 and/or A3 may have taken place but were not reasonably foreseeable nor was a Class D1 crèche". It is submitted that his approach here reflects what was found by the Court of Appeal to have been an erroneous approach by him, in similar circumstances, in the Rooff case.
vii) Finally, it is argued that the Inspector adopted an unlawful approach to the issue of permission for a building of more than 6 and less than 15 storeys in height, having regard to the local authority's Tall Buildings Study indicating that 6-9 storey buildings would be acceptable as part of the regeneration strategy for the area.
(D) Ground 1
"The vital requirements are that the party waiving should be aware of all the material facts, of the consequences of the choice open to him, and given a fair opportunity to reach an unpressured decision".
Mr Hill argues that HMT was not aware of all material facts or of the consequences of any choice that might be open, and that it had no fair opportunity to reach a proper decision.
(E) Section 17(7) of the Act and section 38(6) of the 2004 Act
"In determining for the purposes of the issue of a certificate under this section, whether planning permission for any particular class of development would have been granted in respect of any land, the local planning authority shall not treat development of that class as development for which planning permission would have been refused by reason only that it would have involved development of the land…otherwise than in accordance with the provisions of the development plan relating thereto".
Section 38(6) of the 2004 Act is in these terms:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise".
"The fact that a class may not be in accordance with the development plan is not in itself a reason for treating it as inappropriate (s17(7)). However, under ordinary principles of planning law, the determination should be made in accordance with the development plan unless material considerations otherwise indicate (…s38(6) [of the 2004 Act])".
"(1) A reference to the development plan in any enactment mentioned in subsection (7) must be construed in accordance with subsections (2) to (5)". (NB no mention of subsection (6))
Subsection (7) then states that:
"The enactments are –
(a) this Act;
(b) the planning Acts;
(c) any other enactment relating to town and country planning;
(d) the Land Compensation Act 1961…"
"(4) The planning Acts are-
(a) the Principal Act;
(b) the listed buildings Act;
(c) the hazardous substances Act;
(d) the Planning (Consequential Provisions) Act 1990".
That list excludes the Act of 1961. Thus, Mr Hill argues section 38(6) does not apply to matters to be decided under that Act, leaving only section 17(7) of that same Act to be applied. He goes on to submit,
"Thus section 38(6) has no application to a CAAD determination pursuant to LCA 1961, although Parliament could plainly have provided otherwise had it chosen to do so.
7. This then resolves the apparent tension between section 38(6) PCA and section 17(7), which provides that conflict with the development plan is an insufficient basis without more to refuse a CAAD application. Section 17(7) places a duty upon the person responsible for determining the CAAD to undertake a more searching analysis than section 38(6). It requires the decision maker to look beyond mere conflict with the provisions of the development plan and identify some real and substantial, practical reason why a CAAD should not be issued on the basis sought, ie "significant and insuperable planning objections to the particular development" (per Carnwath LJ at para.35 in Rooff.)"
"…to help local planning authorities to use their compulsory purchase powers to best effect and, by advising on the application of the correct procedures and statutory or administrative requirements…"
The relevant paragraph reads:
"14. Section 17(7) of the 1961 Act provides that a certificate may not be refused for a particular class of development solely on the grounds that it would be contrary to the relevant development plan. The purpose of this provision is to avoid the whole purpose of the certificate system being defeated, where land is allocated in the development plan for the use for which it is being acquired. It follows that the local planning authority (or the Secretary of state as the case may be) must ignore development plan policies with no function beyond the acquisition scheme-for example, policies that earmark land for a road or school. But the decision maker may take account of broader policies-for example, Green Belts and countryside protection policies-if these imply that the classes of alternative development suggested by the applicant or appellant would not have been acceptable in the 'no scheme world'."
"…in dealing with such an application [i.e. for planning permission] the authority shall have regard to the provisions of the development plan, so far as material to the application, and to other material considerations".
Section 38(6) of the 2004 Act has already been recited. Both subsections require the authority to consider not just the development plan but also other material considerations. In a Section 17 case the decision maker is reminded that the development plan is not the "be all and end all". In my judgment, on its proper construction it means no more than that.
(F) The Inspector's Report and his Approach to the Issues
(G) Ground 2
"the principal road connecting not only Hackney Wick but much of the Lower Lea Valley regeneration area to the strategic road network. This meant that it carried significant flows of heavy commercial traffic…often at unsocial hours. It is accepted that residential development is frequently to be found alongside busy traffic corridors across much of Inner London. On the other hand, in my professional experience, it is much rarer to find residential accommodation sited alongside routes where a high preponderance of heavy goods vehicles, moving about either very early in the morning and/or late at night, is a noteworthy feature of traffic generation."
(H) Ground 3
(I) Ground 4
"173. From all of this I conclude that the JAAP gives very helpful site specific guidance as to the range and disposition of uses that the East Cross Centre would have incorporated in the no-scheme world. The primarily employment nature of the site is maintained from its DEA designation in the UDP . Unlike most if not all other Hackney DEAs, the London Plan and SRDF designate this part of Hackney Wick as an SEL in conjunction with other land straddling three London Boroughs, so that the UDP employment land protection here is effectively preserved at the relevant date .
174. On the other hand, the JAAP recognises that there is scope in Area 4.1b for 10% residential development; it does not say explicitly where it should go within this area but identifies Waterden Road as being environmentally depleted and that in strategic terms housing should be concentrated near waterways and parks . Based on this analysis, the message from the local planning guidance to emerge closest to the relevant date, the JAAP, is to my mind reasonably clear and foreseeable at that time. Most of the south-east sector of Hackney Wick (90%) would remain in employment use (Use Classes B1 and B2). 10% of development would be residential but it would be sited next to a waterway, the Hackney Cut, and away from the environmentally substandard Waterden Road. It may be opposite a rather unattractive industrial building (a printing works) on the west side of The Cut . However, the canalised river would act at least as a buffer against the activity in those premises, whereas residential development on the CAAD site could be left isolated cheek-by-jowl with B2 general industrial uses and an unimproved Waterden Road.
175. I am reinforced in this by the phasing scheme set out on page 9 of the JAAP. Getting housing development underway is described there as an intermediate priority but no specific mention is made anywhere of the timing of any Waterden Road environmental improvements. "
"…analysis of firstly the state of the land and, more importantly, the then emerging forward planning on the relevant date, determines that residential development would be an unacceptable alternative on this land".
This reasoning was supplemented in the Summary of Conclusions, paragraphs 186-7, having considered the additional points, in these terms:
"186. Any form of residential use within a mix of uses would not have been acceptable on the Appeal Site at the relevant date. The Appeal Site was a Defined Employment Area (DEA) in the adopted Unitary Development Plan, as far as section 38(6) of the 2004 Act is concerned. Whilst many Hackney DEAs had lost that status in this rather old Development Plan, the London Plan of 2004, the second limb of the Statutory Development Plan had preserved this status for Hackney Wick by declaring it to be a Strategic Employment Area (SEL).
187. Very specific advice on the south east area of Hackney Wick containing the appeal site (Area 4.1b) was given in the Supplementary Planning Guidance, the JAAP, also of 2004 and therefore from the year before the relevant date. 90% of land in the area was to be developed for employment. The 10% residential of land (according to JAAP's strategic guidance) was to be concentrated next to water courses i.e. the Hackney Cut in Area 4.1b; in sharp contrast Waterden Road, fronting the appeal site, was said to be in need of environmental improvement and no timetable for these improvements was given. Therefore, residential development was not appropriate and a semi-residential use as an hotel was similarly unacceptable."
(J) Ground 5
"Two elements of the no scheme world are either in being or currently nearing completion, the Stratford International Station and Stratford City shopping complex. I have no evidence before me to substantiate that with these two no-scheme features in place, the numbers of bus routes operating in the area is going to increase markedly, as surmised by Newham Council in 2005. A far more likely scenario is that existing bus routes will be rerouted to serve new bus facilities in both developments before making for their final destination at the large modern bus station at the south side of Stratford main line railway station. "
The point is then made that,
"The Inspector impermissibly placed reliance on the large modern bus station and Stratford mainline railway station, which are features of the scheme world. By contrast, the Inspector failed to have regard to "a new bus interchange facility south of the Channel Tunnel Rail Link box", which was an obligation in the s.106 agreement accompanying the planning permission for the Stratford International Station and then Stratford City…"
(K) Ground 7
"4.1 A planning permission was granted for redevelopment of the Appeal Site in June 2004. The application (submitted by the appellants) was for a 6 storey office building. The application was in outline (LBH ref 2004/0132) and was submitted to LBH on behalf of the Appellants on 20th January 2004 for: "Outline planning application for demolition of existing 2-storey building and erection of a part 5, part 6-storey office building with ancillary car parking provision."
4.2 LBH officers originally recommended the proposals for refusal. A report was prepared for planning committee on 22nd April 2004 which concluded that: "The scale and bulk of the building is considered excessive in a position close to Waterden Road and would detract from the street scene and townscape in general. In addition the level of parking provision on the site is considered excessive and would encourage car dependency".
4.3 This report was subsequently withdrawn from committee at the Applicant's request, and revised plans were prepared in discussion with officers. Correspondence relating to the changes required is at Appendix JW6 (letter from LBH to applicant's agent dated 23rd April 2004.)"
On the basis of the revised plan, permission was granted for the six storey building. HMT's expert submitted to the Inspector that, "…it was possible to reach a view in principle as to the broad height that would be acceptable". He went on to argue that the permission for six storeys was a "starting point" and that there was no suggestion in the contemporaneous documents that permission represented the maximum permissible height. He submitted further that the planning scenario had changed in two respects: the JAAP "with its emphasis on intensification" and the granting of the Stratford City planning permission with tall buildings intended to be clearly in view and the construction of the access road and bridge to the Stratford International Station opposite the Site.
"Building up to 15 storeys high
184. This is largely based on the tall building study carried out for Hackney Council and issued in 2005, the proximity of tall buildings at Stratford City and the justification of a landmark building for the new road junction between Waterden Road and the access road to the International Station [53,54]. Paragraph 5.7 of the Tall Building Study describes the Lee Valley opportunity area, because of its proximity to the visually sensitive river corridor, is seen to be suitable for no more than mid-rise buildings .
185. Planning permission was granted in 2004 for an office building up to six-storeys high on the CAAD site. This height seems to have been determined in large part by building heights prevalent on other sub-divisions of the East Cross Centre. Tall buildings had been approved as part of the major new development at Stratford City but this was a new urban form representing the important new transport node of the International Station, the important expansion/improvement of the main-line/underground station and the DLR link between the two, all of which also formed part of the no-scheme world. I do not consider that a new junction between Waterden Road and the access road to the International Station, a fairly unimpressive location in a relatively featureless employment area, warranted any increase in height for development on this site over and above the six storeys approved on the same area of land the year before the relevant date.
188. There was no reason why a building of fifteen stories in height was suitable for this site. A multiple storey building of B1 offices only was likely to be built and in a mid-rise area of the Lower Lea Valley, adjoined by other buildings of a similar height, there was no reason why it should be more than six stories high."
(K) Ground 6
"181. No real evidence was advanced in support of Class A2 offices. Class A1 and A3 were seen effectively as corner shops/cafes catering for workers in the surrounding area. Paragraph 8 of Appendix P to Circular 06/2004 calls for the certificate system to be operated on broad and commonsense lines, pointing out that a certificate is not a planning permission. If, as seems to be the case, that the proposals are little more than kiosks then they can be subsumed into broader brush land uses without affecting the fair market value of land."
"8. The First Secretary of State ('the Secretary of State') considers it important as far as possible that the certificate system should be operated on broad and common-sense lines; it should be borne in mind that a certificate is not a planning permission but a statement to be used in ascertaining the fair market value of land. An example of how the system could work might be where land is allocated in the development plan as part of an open space or a site for a school, and is being acquired for that or a similar purpose. If there had been no question of public acquisition, the owner might have expected to be able to sell it with planning permission for some other form or forms of development. The purpose of the certificate is to state what, if any, are those other forms of development. In determining this question, the Secretary of State would expect the local planning authority to exercise its planning judgement, on the basis of the absence of the scheme, taking into account those factors which would normally apply to consideration of planning applications eg. the character of the development in the surrounding area, any general policy of the development plan, and national planning policy along with other relevant considerations where the site raises more complex issues which it would be unreasonable to disregard. Only those forms of development which for some reason or other are inappropriate should be excluded. Local planning authorities will note from section 17(7) that their certificate can be at variance with the use shown by the development plan for the particular site."
"…the advice in paragraph 8 of Appendix P to Circular 06/2004 is that general policies of the development should be followed so that small pockets of residential provision associated with office development can be disregarded for the purposes of issuing a certificate…".
"34. ….His reasons…are not those put forward by the planning authority, nor are they based on considerations applicable to an ordinary planning application. Rather they appear to be based upon his understanding of the Secretary of State's guidance in relation to the section 17 procedure: first, that it allows him to disregard the residential element of such a scheme as a "small pocket" not relevant to the general policies on which the section 17 consideration is based; secondly, that it enables him to disregard proposals which "deliberately ignore" the policy framework
35. I find on any view that reasoning difficult to understand or support. In the first place, it is unclear what is meant by the reference to "small pockets of residential provision". If he is suggesting that a housing element on the appeal site can be disregarded for section 17 purposes because it is small in relation to the area to which the general policies apply, that is clearly wrong. The certificate should specify any uses appropriate for the appeal site, regardless of their scale in relation to the wider area. Whether or not the general policies are designed to deal with "small pockets" of individual uses, what matters is whether residential use would be acceptable as a significant element of the development of this site. Similarly, the reference to "current and foreseeable policies" in paragraph 16 is nothing to the point. As the earlier parts of the appendix make clear that is not intended to rule out consideration of the planning merits of an individual proposal, even if it may depart from the approved policies. The question is whether, notwithstanding the lack of specific support in the policy documents, there are significant and insuperable planning objections to the particular development."
As a result, the Court upheld the challenge to this and other parts of the Inspector's reasoning and quashed the certificate.