QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (on the application of NICHOLAS PERRY)
|- and -
|LONDON BOROUGH OF HACKNEY
- and -
|(1) NEWMARK PROPERTIES LTD
(2) SAINSBURY'S SUPERMARKETS LTD
William Upton and Emmaline Lambert (instructed by London Borough of Hackney Legal Services) for the Defendant
Reuben Taylor QC (instructed by Berwin Leighton Paisner) for the First Interested Party
Hearing dates: 14-16 October 2014
Crown Copyright ©
Mrs Justice Patterson:
"Demolition of buildings on land at Wilmer Place and the rear parts of 193-201 Stoke Newington High Street, with retention of front Stoke Newington High Street façade, in connection with associated planning application for redevelopment to provide a retail unit at ground floor level with 53 units above."
i) In both applications was there a proper consideration of the viability appraisal with regard to affordable housing in the development?
ii) In both applications was there was a proper assessment of the impact of the development on heritage assets?
iii) In JR1 only, did the defendant fail to adopt and publish on the planning register a screening opinion in accordance with the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the Environmental Impact Assessment Directive and obligations under the EU Treaty?
iv) In JR2 only, did the defendant act unlawfully in failing to provide the claimant with the proposed section 106 obligation to enable the public to comment upon?
v) In JR2 only, did the defendant adopt an erroneous approach to the first grant planning permission in that it failed to direct members' attention in JR2 to the claimant's grounds of challenge in JR1?
vi) In both applications, did the defendant act unlawfully in that it gave inadequate reasons for the way that it proceeded and/or act irrationally?
i) The proposal, by reason of its siting, design and massing would fail to respond to the local character of the site and result in substantial harm to the character and setting of the surrounding heritage assets, which harm would not be outweighed by any associated public benefits from the development.
ii) The proposal, by reason of its siting, design and massing would result in substantial adverse impacts upon natural habitats and biodiversity within Abney Park Cemetery, which harm would not be outweighed by any associated public benefits from the development.
iii) The proposal would fail to provide an adequate proportion of family sized units and would not provide a sufficient mix of smaller and larger units to fully meet housing need in the borough.
Ground One: Was there a proper consideration of the viability appraisal which led to the defendant accepting 17% of affordable housing?
"Negotiations on sites should take account of their individual circumstances including development viability, the availability of public subsidy, the implications of phased development including provisions for reappraising the viability of schemes prior to implementation (contingent obligations) and other scheme requirements."
"Affordable housing should be sought on all developments comprising ten residential units or more. New housing should seek to meet a borough-wide affordable housing target of 50% of all units subject to site characteristics, location and overall scheme viability. The Greater London authorities' affordable housing toolkit assessment or a similar scheme appraisal model should be used in presenting the viability of a scheme."
"6.5.12. As less than 50% affordable housing is proposed a 'GLA Three Dragons' viability appraisal is required to be submitted to accord with London Plan policy 3.12 and Hackney Core Strategy policy 20. This appraisal has been submitted along with additional explanatory information with regard to sales values, build costs and information on the existing use value of the site.
6.5.13. The appraisal and accompanying information have been reviewed by external consultants appointed by Property Services surveyors. The appraisal shows that provision of affordable housing is constrained by the reduced amount of residential floorspace as a result of the site's location in proximity to a number of heritage assets, as well as lack of grant funding for delivery of affordable housing. As such the level of affordable housing proposed is the maximum amount that can be reasonably achieved on the site.
6.5.14. It should also be noted that a greater amount of affordable housing has been submitted in comparison to the previously refused scheme on this site (ref: 2009/1264, see history section). In addition the amount of affordable housing has been fully justified in terms of viability. As such officers are of the view that the proposals would overcome reason 3 of this previously refused scheme."
"The proposed housing provision would help to meet housing need in the borough and would make a contribution towards provision of much needed affordable housing."
"Discussion took place surrounding the level of affordable housing being proposed and it was explained that although the core strategy specifies a guide of 50% affordable units, the reduction in grant funding from the government had made this difficult to achieve in many cases. It was advised that each application should be considered on its own merits and given the complexity of the site, it was considered that this was the maximum amount of affordable housing that could be achieved and was in accordance with policy."
"I am afraid the financial viability appraisal has been submitted in confidence, as it contains confidential information with regard to commercial interest. As such these appraisals are exempt from the Freedom of Information Act and are not put on the website. I appreciate it is not ideal from the perspective of a member of the public wanting to look into the scheme but it is the standard approach which councils take."
"6.9.12. As less than 50% affordable housing is proposed a 'GLA Three Dragons' viability appraisal is required to be submitted to accord with London Plan policy 3.12 and Hackney Core Strategy policy 20. This appraisal has been submitted along with additional explanatory information with regard to sales values, build costs and information on the existing use value of the site.
6.9.13. The appraisal and accompanying information have been reviewed by external consultants appointed by Property Services surveyors. The appraisal shows that provision of affordable housing is constrained by the site constraints such as a proximity to a number of heritage assets, which limits the scale of development that can [be] accommodated on site. When taking into account the existing use value of the site, build costs and associated professional fees for the development, alongside potential sales values from residential units and rental yield from the proposed retail unit, the amount of affordable housing proposed is the maximum amount that can be reasonably achieved on the site.
6.9.14. It should be noted that the Core Strategy 50% affordable housing target was developed at a time when grant funding was available from the Homes and Communities Agency to deliver affordable housing. When such funding was available the Council's Affordable Housing Viability Study which forms part of the evidence base for the Core Strategy noted that 50% affordable housing would be achievable in a high number of scenarios. When grant funding is not available then the 50% affordable target is only achievable in a limited number of scenarios, usually involving sites with low existing use values.
6.9.15. Both London Plan and Core Strategy policies therefore recognise that the 50% target is an aspiration and not a minimum standard, and lower proportions may be acceptable. This needs to be assessed on a site specific basis taking into account scheme viability. It should also be noted that a greater amount of affordable housing has been submitted in comparison to the previously refused scheme on this site (ref: 2009/1264, see history section). In addition the amount of affordable housing has been fully justified in terms of viability. As such the Planning Service consider that the proposed affordable housing provision complies with Core Strategy Policy 20, London Plan policy 3.12 and emerging DMLP policy 21.
6.9.14. However specialist advice from external consultants notes that the submitted comparable sales values for the area are low and the property market is increasing in strength. As such it is recommended that if the development is not implemented within a 12 month period then the development should be subject to a further viability review. A further head of term within the S106 is therefore recommended in this regard."
"6.11. Discussion took place regarding the viability of the scheme and the level of affordable housing being provided. The Head of Property Strategy & Projects stated that the Council had sought external advice on the viability assessment submitted by the applicants, which had been tested and reviewed on three occasions. It was concluded that the viability assessment was acceptable and a review mechanism was in place to monitor the level of affordable units in the future. It was confirmed that the 'three dragons' test to address outcomes and costs was a recognised tool.
6.12. In response to concerns raised regarding the level of affordable housing, the Programme & Investment Officer advised that the 50% target for affordable housing is a borough-wide one and that while the level of affordable housing delivered in Hackney has been in excess of the London average (35% in past years) the new funding regime for affordable housing, together with welfare reforms and the economic climate, has seen the level of affordable housing on developer led planning applications considerably reduced.
6.13. While the level of affordable housing on Wilmer Place is disappointingly low, the viability has been scrutinised by out external viability consultants (Jones Lang LaSalle). As such, the development will be subject to a viability review (to capture any increase in value) if there has been no start of site within 12 months. There was, therefore, the potential for a higher percentage of affordable housing to be provided, which would be sought on-site. The scheme nevertheless provides a good policy compliant tenure and bed size mix (including family housing) to be managed by one of our preferred Registered Providers, ONE Housing."
(i) A councillor's common law rights of access to documents and (ii) Whether there was any basis under the law of confidentiality to withhold access to them
"In my opinion the first and only question which requires to be answered on this appeal is whether English law prohibits the licensing authority from having recourse to the confidential information provided by the appellants in the course of their application for a product licence relating to cimetidine for the purpose of considering whether to grant or reject an application by Generics or Harris or anyone else for a product licence in respect of cimetidine."
And, at 103H-104B:
"My Lords, I am satisfied that it is the right and duty of the licensing authority to make use of all the information supplied by any applicant for a product licence which assists the licensing authority in considering whether to grant or reject any other application, or which assists the licensing authority in performing any of its other functions under the Act of 1968. The use of such information should not harm the appellants and even were it to do so, this is the price which the appellants must pay for cooperating in the regime designed by Parliament for the protection of the public and for the protection of the appellants and all manufacturers of medicinal products from the dangers inherent in the introduction and reproduction of modern drugs."
"The serious practical implication of the argument is that, contrary to what the decided English cases take for granted, ministers need know nothing before reaching a decision so long as those advising them know the facts. This is the law according to Sir Humphrey Appleby. It would covertly transmute the adviser into the decision-maker. And by doing so it would incidentally deprive the adviser of an important shield against criticism where the decision turns out to have been a mistake."
Defendant's and interested party's submissions
Discussion and conclusion
"Mr Gamper cannot perform his duties properly or effectively as a member of the council, or the public services committee, or as chairman of Shoreditch Housing Committee, without having access to the agenda, minutes and other documents of the DLO sub-committees. There may be, I know not, documents which are so confidential that they cannot be disclosed without passages in those documents being covered up or deleted. But that cannot affect the general principle."
"Given the constitutional position as this court now holds it to be, a minister who reserves a decision to himself – and equally a civil servant who is authorised by him to take a decision – must know or be told enough to ensure that nothing that it is necessary, because legally relevant, for him to know is left out of account. This is not the same as a requirement that he must know everything that is relevant. Here, for example, much that was highly relevant was appropriately sifted by the Commission in formulating its advice and then distilled within the department in order to make a submission to the minister which would tell him what it was relevant (not simply expedient or politic) for him to know. What it was relevant for the minister to know was enough to enable him to make an informed judgment. This centrally included the Commission's advice and the reasons for it. It also included the fact of Professor Ernst's opposition and the essential reasons for it. All this he had."
Chair: Viability, Peter (Edwards) can you tell us what is your role in assessing viability, you're employee of the council and this is the sort of thing you do all the time.
Peter Edwards (Head of Property Strategy & Projects): Yes, I'm a chartered surveyor and so will assess the viability on applications. In this particular case, given the scale of the application, we sought external advice, and we tend to put these out if they are major applications. In this case its been contested and reviewed three times, we also then reviewed the external consultants' advice and they contest the inputs in terms of sale values and the cost of the scheme, all that goes into the assessment. That's how we came to the conclusion that what the applicants are proposing is acceptable. Having said that, we acknowledge that with prices rising we need to have a review mechanism, so that's what the external agencies have recommended, and we will go with that.
Chair: In terms of us as councillors seeing this documentation, we don't normally see this – [I think I've only seen one] – and that is because of commercial confidentiality?
Edwards: That's right.
Chair: And that is what normal ordinary councils do?
Chair: Does any council let the councillors and indeed the public see the figures?
Edwards: The advice that we give and the advice that we seek externally is provided to the case officer and not outside.
Stephen Kersley (Programme & Investment Officer): …We very much share concern at what we consider to be a low provision of affordable housing, it is 17% and we were promised it would be higher, however, as Peter has explained, this development went to an external viability cost consultant Jones Lang LaSalle, who looked as this independently and they considered the figures and they thought, on the figures provided, that 17% was what could be achieved, but recognising that prices in Hackney increase far higher than other London boroughs they have said that clearly it is likely prices will rise. And because of that, if the development doesn't start onsite, and that doesn't mean clearing buildings it means starting with this actual development, if that doesn't start within 12 months the viability has to be redone within six weeks of the scheme starting. So, in effect that will capture more affordable housing that can come forward. It is our hope and assumption that that will be the case, but I would stress that we would be seeking that affordable housing on site and we would not wish that to be an offsite contribution."
(iii) A councillor's statutory rights under the Local Government Act 1972 to see documents
Defendant and Interested Party's submissions
Discussions and conclusions
"(1) Any document which is in the possession or under the control of a principal council and contains material relating to any business to be transacted at a meeting of the council or a committee or sub-committee of the council shall, subject to subsections (2) to (2C) below, be open to inspection by any member of the council.
(2) In relation to a principal council in England, subsection (1) above does not require the document to be open to inspection if it appears to the proper officer that it discloses exempt information.
(2A) But subsection (1) above does require (despite subsection (2) above) the document to be open to inspection if the information is information of a description for the time being falling within—
(a) paragraph 3 of Schedule 12A to this Act (except to the extent that the information relates to any terms proposed or to be proposed by or to the authority in the course of negotiations for a contract), …"
Those provisions maintain the exemption from inspection by council members in relation to financial and business affairs of any particular person if that information relates to any terms proposed or to be proposed by or to any authority in the course of negotiations for a contract. The information provided in the FVA was to establish the number and nature of affordable housing units that the interested party could provide within the proposed development. The delivery of those units would then be secured in the section 106 agreement which was to be entered into by the interested party and defendant. The content of the FVA and its review was, therefore, highly relevant to terms to be included within a section 106 agreement. The documents provided the basis for negotiations that would lead to a conclusion of terms on affordable housing within that agreement.
(iv) The rights of the claimant to see documents and (v) Whether his inability to do so caused unfairness in the decision making process
Submissions of the Parties
Discussion and conclusions
"Nothing in this section –
(a) requires any document which discloses exempt information to be included in the list referred to in subsection (1) above; or
(b) without prejudice to the generality of subsection (2) of section 100A above, requires or authorises the inclusion in the list of any document which, if open to inspection by the public, would disclose confidential information in breach of the obligation of confidence within the meaning of that subsection."
"99. Moreover, fairness in the planning process is not confined to a consideration of the interests of the objectors. It also needs to respect the confidentiality of the applicant because it is to its figures rather than to DTZ's general appraisal that the claimants' point is addressed. It has the gist of the appraisal. It is this actual appraisal, and within that Arsenal FC's figures, that the claimants want. This is emphasised by their constant references to a £50 million funding gap drawn from an e-mail in which that is referred to. But it would be unfair to Arsenal FC for the Local Planning Authority to be made to reveal what was handed to its advisers in confidence in the clear expectation that it would have a very carefully restricted circulation.
100. A planning authority needs to be able to examine matters in a confidential manner with applicants, as was done here, and for that purpose to use independent consultants to whom disclosure of the relevant information is made in confidence. This is the same process that the GLA went through. If a local planning authority cannot do that, it will be hindered in its negotiations with developers over the content of publicly beneficial packages such as the extent of affordable housing and other legitimate benefits related to the value of the development and its funding. The public interest would be harmed.
101. It is quite clear that the information is confidential and disclosure of it would be in breach of confidence. There is nothing unfair in the non-disclosure of that document, with the gist of the DTZ appraisal being available.
102. Finally, I consider that s.100D(4)(a) provides for a local planning authority to be able to comply with its duties of openness without a breach of confidence. A specific statutory provision provides for non-disclosure of this document and is applicable in this context. Even if (which I doubt) there is scope for a common law duty of fairness to supplant rather than supplement that regime, that regime is a very powerful indicator as to the content of the common law duty of fairness. There is nothing arguably procedurally unfair here in the non-disclosure of that document."
"It is fairly clear no more than that the conclusion had been that the residential development would fill a substantial proportion of the identified funding gap and that that conclusion had been independently verified. In my judgment the position is no different here."
Flaux J went on to consider the suggestion that the claimant and his advisors should have been told that the residential development there proposed could fill as much as 85% of the funding gap to enable them to run some additional and indeed opposite argument to the one that they were running. That was rejected on the basis that it was a submission to the effect that "if only I had seen all the confidential information, there are arguments I could have run" which had been rejected by Ouseley J in Bedford. Flaux J did not consider there was anything in the claimant's contentions that non-disclosure of the financial report and the DVE review were unfair.
(vii) Did the claimant have a free standing right under the Environmental Information Regulations?
Discussion and Conclusions
Ground Two: Did the defendant err in its approach to heritage assets?
"Democratically elected bodies go about their decision making in a different way from the courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves. It is their job and not the court's, to weigh the competing public and private interests involved."
Discussion and conclusions
"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."
"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."
"In this case, the requirement to give "considerable importance and weight" to the policy objective of preserving the setting of listed buildings has been imposed by Parliament. Section 70(3) of the Planning Act provides that s.70(1), which confers the power to grant planning permission, has effect subject to, inter alia, ss.66 and 72 of the Listed Buildings Act. Section 70(2) requires the decision-maker to have regard to "material considerations" when granting planning permission, but Parliament has made the power to grant permission having regard to material considerations expressly subject to the s.66(1) duty."
In  he said:
"It does not follow that if the harm to such heritage assets is found to be less than substantial, the balancing exercise referred to in policies HE 9.4 and HE 10.1 should ignore the overarching statutory duty imposed by s.66(1), which properly understood (see Bath, South Somerset and Heatherington) requires considerable weight to be given by decision-makers to the desirability of preserving the setting of all listed buildings, including Grade II listed buildings. That general duty applies with particular force if harm would be caused to the setting of a Grade I listed building, a designated heritage asset of the highest significance. If the harm to the setting of a Grade I listed building would be less than substantial that will plainly lessen the strength of the presumption against the grant of planning permission (so that a grant of permission would no longer have to be "wholly exceptional"), but it does not follow that the "strong presumption" against the grant of planning permission has been entirely removed."
"54. Section 66(1) did not oblige the inspector to reject the Appeal B proposal because he found it would cause some harm to the setting of the listed buildings. The duty is directed to "the desirability of preserving" the setting of listed buildings. One sees there the basic purpose of the "special regard" duty. It does not rule out acceptable change. It gives the decision-maker an extra task to perform, which is to judge whether the change proposed is acceptable. But it does not prescribe the outcome. It does not dictate the refusal of planning permission if the proposed development is found likely to alter or even to harm the setting of a listed building. Gauging the likely effects on the setting will always be part of a broader planning assessment, though a very important part. The result of that exercise will depend on the facts and circumstances of the case in hand. The change proposed in or to the setting of the listed building may not be great. The likely harm may be slight. If there are benefits in the proposal they may be powerful enough to justify the likely effects on the setting despite the desirability of its being preserved. Such questions will be for the decision-maker to judge when having "special regard" to the statutory aim. This is in no sense to diminish the duty in section 66(1), or to re-write the case law to which I have referred. It is merely to recognize that performing the duty is an aspect of planning decision-making in a relevant case, but not the only one.
61. The inspector saw the need to establish whether any "demonstrable harm" had been or would be caused to the setting (ibid.). He recognized that he had to approach this question having regard to the significance of the listed buildings and their setting and the way in which the development proposed would either enhance or detract from that significance and one's ability to appreciate it. His reference to "demonstrable harm", as I read it, meant harm that could be objectively demonstrated rather than merely asserted. And I do not accept that this represents any dilution of the section 66(1) duty or of the policy in section 12 of the NPPF. The inspector was not equating "demonstrable harm" either to "substantial harm" in paragraph 133 or to "less than substantial harm" in paragraph 134. He was not overriding or eliding the distinction between those two levels of harm. He was not posing for himself the wrong test, or asking himself the wrong question. He was not lowering the threshold of acceptability for proposals affecting the setting of a listed building. He did not do any of those things either in paragraph 62 or elsewhere in his decision letter."
"66. I would respectfully agree with Mr Justice Lindblom that, taken as a whole, the advice in the NPPF is consistent with that approach, having regard in particular to paragraphs 131 and 132 where it advises that great weight should be given to the conservation of a designated heritage asset and that clear and convincing justification should be required for any harm or loss. It is correct that Section 66(1) applies the presumptive desirability directly to the setting of a listed building, while in the NPPF the advice is directed to the significance of the asset itself. For present purposes that distinction is not of any significance. However it remains essential that in applying the subsequent advice in paragraph 134, which is expressed in terms of a balance rather than expressly referring to issues of weight and significance, the approach of the decision maker is consistent with the statutory obligation under Section 66(1). Thus the question should not be addressed as a simple balancing exercise but whether there is justification for overriding the presumption in favour of preservation.
82. But the question remains whether in substance he did have that special regard to the desirability of preserving the settings of the heritage assets as part of the consideration that led to his decision, notwithstanding that, as I find, in approaching that question he did not expressly have regard to the statutory requirement as such. In approaching that question I remind myself of the helpful guidance in Garner that it is not necessary for the decision maker to pass through a particular series of legal hoops to comply with Section 66(1) nor, I would add, does he have to recite any particular mantra or form of words to demonstrate that he has done so. However, adopting the formulation of Mr Justice Ouseley approved by the Court of Appeal in Garner, that does not mean that the decision maker can 'treat the desirability of preserving the setting of a listed building as a mere material consideration to which (he) can simply attach the weight (he) sees fit in (his) judgement. The statutory language goes beyond that and treats the preservation of the setting of a listed building as presumptively desirable. So, if a development would harm the setting of a listed building, there has to be something of sufficient strength in the merits of the development to outweigh that harm. The language of presumption against permission or strong countervailing reasons for its grant is appropriate. It is an obvious consequence of the statutory language rather than an illegitimate substitute for it.'"
"All development should make a positive contribution to the character of Hackney's historic and built environment. This includes identifying, conserving and enhancing the historic significance of the borough's designated heritage assets, their setting and where appropriate the wider historic environment."
"In future new development should be kept as far away as possible from the walls of the cemetery to preserve the setting of the cemetery…"
The officer reports
"6.7.3. Urban design impacts of new development: The site is located in a sensitive location in the heart of the Stoke Newington Conservation Area and is adjoined by a group of Grade II listed buildings dating from the Georgian period to the south at nos 187 to 191 Stoke Newington High Street. Abney Park Cemetery, a Grade II Listed Historic Park and Garden, adjoins the site to the west and north. The Cemetery Gates at the Stoke Newington High Street entrance are listed at Grade II.
6.7.4. The existing buildings and landscaping on the site detract from the character and appearance of the conservation area. The existing light industrial building is utilitarian in appearance and is visible above the listed cemetery in views from the north east. The site surrounding the light industrial building is predominantly hard landscaped as a car park, with floodlighting, which impacts on the setting of Abney Park cemetery."
Under heritage impacts the report says:
"6.7.9. Heritage Impacts: The overall design approach and scale of development is considered to respond to the significant design constraints of the site. The retention of the façades of 193-201 Stoke Newington High Street means that only limited glimpses of the development will be possible from Stoke Newington High Street.
6.7.10. The taller elements of the development will be recessed behind and away from no. 187-191 Stoke Newington High Street in views from the High Street. As such is not considered to detract from the setting of these adjacent listed buildings as well nos. 218-220 Stoke Newington High Street on the opposite side of the high street to the east. In addition it is also not considered that the amalgamation of a number of shopfronts which will still read as separate shop frontages, as part of the same retail unit fronting Stoke Newington High Street would not detract from the character of the conservation area, given the variety and number of shopfronts within the district centre.
6.7.11. The previous application (ref: 2012/2228, see history section) was refused due to concerns with regard to the impact of the development upon surrounding heritage assets, in particular Abney Park Cemetery and gates. The current proposals have a similar relationship with the cemetery gates in views from the north of the site, as a backdrop to the grade II listed cemetery gates. However the setting back of the west elevation of the building would reduce its impact in views from within the cemetery from west.
6.7.12. Concerns with regard to the proximity of the development with Abney Park Cemetery were also a significant issue with regard to the previously refused scheme. The Stoke Newington Conservation Area Appraisal guidance requiring development to be set back from the boundary with the cemetery, and be carefully sited and designed so as to preserve its existing character is noted in this regard.
6.7.13. The current proposals include a number of small, incremental changes in comparison to the refused scheme that collectively represent a sizable reduction in volume and slightly increase the distance from the cemetery boundary to the proposed development. These include: the proposed western boundary of the development at ground floor will be set back approximately 1m further than the previously refused scheme (a total setback of approximately 2m from the cemetery boundary); the lower two floors of the north wing are set back by 1.2 metres; the first and second floors to the south wing set back by 3.2 metres; and the third and fourth floors of the south wing set back by 2m.
6.7.14. The cumulative impact of the reduction of the above massing will contribute to a further reduction of the perception of the development having an adverse impact on the setting of the Park. These changes, in addition to the changes to previously refused scheme to reduce its height are now considered to result in a minor adverse, but 'less than substantial' harm to the setting of the adjacent cemetery, as defined by NPPF paragraph 134. It should be noted that English Heritage, in their response to the proposals also consider that the proposals would now result in 'less than substantial' harm to adjacent heritage assets.
6.7.15. Paragraph 134 of the NPPF states that 'where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use'. In this case heritage related public benefits of the proposal would comprise the restoration of the unlisted terrace fronting Stoke Newington High Street, the improvement to the perimeter boundary treatment to parts of Abney Park Cemetery, a contribution to be made to the ongoing management of Abney Park Cemetery and the removal of the existing poor quality building that currently detracts from the appearance of the area. These benefits are considered to outweigh the 'less than substantial' harm to adjacent heritage assets."
"6.11.14. The previous application (ref: 2012/2228, see history section) was refused due to concerns with regard to the impact of the development upon surrounding heritage assets, in particular Abney Park Cemetery and gates. The current proposals have a similar relationship with the cemetery gates in views from the north of the site, as a backdrop to the grade II listed cemetery gates. However, this northern façade has been redesigned to present a calmer backdrop to the cemetery. In addition the setting back of the west elevation of the building reduces its impact in views from within the cemetery from the west. Officers consider that whilst the relationship to the gates is similar, the redesign ensures that the setting of the cemetery and the gates is not harmed and that the character is preserved."
"6.11.18. The cumulative impact of the reduction of the above massing will contribute to a further reduction of the perception of the development having an adverse impact on the setting of the Park. These changes, in addition to the changes to the previously refused scheme to reduce its height result cumulatively in a significantly improved scheme."
It then reached its conclusions in paragraphs 6.11.19-6.11.22:
"6.11.19. When taking into account the Development Plan and the statutory duties, it is acknowledged that there is some harm to the setting of the adjacent cemetery. The proposal has also been assessed against the NPPF and it is considered that the proposal results in a minor adverse harm, that is, it results in 'less than substantial' harm to the setting of the adjacent cemetery, as defined by NPPF paragraph 134. It should be noted that English Heritage, in its response to the proposals also consider that the proposals would now result in 'less than substantial' harm to adjacent heritage assets.
6.11.20. Paragraph 134 of the NPPF states that 'where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use'. In this case heritage related public benefits of the proposal would comprise the restoration of the unlisted terrace fronting Stoke Newington High Street, the improvement to the perimeter boundary treatment to parts of Abney Park Cemetery, a contribution to be made to the ongoing management of Abney Park Cemetery and the removal of the existing poor quality building that currently detracts from the appearance of the area.
6.11.21. However, the proposals are contrary to London Plan policy 7.8, Hackney Core Strategy Policy 25 and DMLP policy 28 because they give rise to some harm. These policies do not provide for a balance to be struck where less than substantial harm is caused to a heritage asset. As a result they are not consistent with the NPPF and the weight accorded to the conflict with these policies should accordingly be reduced as advised by paragraph 215 of the NPPF.
6.11.22. In any event, the material considerations set out in paragraph 6.11.19 above would need to be weighed against this, as set out in paragraph 134 of the NPPF. Notwithstanding the Council's requirement to have special regard to the desirability of preserving and enhancing heritage assets, it is considered that the benefits of the proposals outlined in paragraph 6.11.20 when considered alongside other planning benefits of the development in terms of additional housing, new retail floorspace and increased employment would outweigh the limited harm caused by the proposals."
"The proposed design is considered to represent an appropriate design for the site. The revisions to the scheme in comparison to the previously refused scheme would help to mitigate impacts upon surrounding heritage assets. It is accepted that some minor harm would result which is contrary to Core Strategy 25 and London Plan 7.8. However other material considerations including heritage based benefits of the proposal would outweigh the limited harm caused…"
"4.3.9. We note that the current proposals represent a significant and welcome reduction in the overall volume of the building, and also improve the boundary treatment between the new building and Abney Park Cemetery. Whilst we welcome these changes and acknowledge that they reduce the harm to the settings of the heritage assets we previously consulted on, we remain of the view that the substantial scale of the proposed new building means that the harm we have previously set out cannot be completely mitigated.
4.3.10. We would therefore advise the Council to consider the proposals in accordance with paragraphs 132, 134 and 137 of the NPPF, weighing the harmful impacts against the public benefits that the proposals would deliver. In this case we acknowledge that public benefit would result from the restoration of the unlisted terrace fronting Stoke Newington High Street, the improvement of the perimeter boundary treatment to parts of Abney Park Cemetery, a contribution made to the ongoing management of Abney Park Cemetery and finally the removal of a poor quality building that currently detracts from the character of the Conservation Area. Should the Council be minded to grant planning permission for the proposals we would urge you to consider entering into a S106 agreement or similar for enhancements to the historic fabric and future management of Abney Park Cemetery."
"131. In determining planning applications, local planning authorities should take account of:
? the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation;
? the positive contribution that conservation of heritage assets can make to sustainable communities including their economic vitality; and
? the desirability of new development making a positive contribution to local character and distinctiveness.
132. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset's conservation. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification. Substantial harm to or loss of a grade II listed building, park or garden should be exceptional. Substantial harm to or loss of designated heritage assets of the highest significance, notably scheduled monuments, protected wreck sites, battlefields, grade I and II listed buildings, grade I and II registered parks and gardens, and World Heritage Sites, should be wholly exceptional.
134. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use."
Ground Three: Did the defendant err in its approach to the screening opinion on the first grant of planning permission? (JR1 only)
"Proposal: Demolition of existing buildings and western boundary wall at Wilmer Place and part demolition (façade retention) of 193-201 Stoke Newington High Street and redevelopment to provide a food store at ground floor with 68 residential units above.
Application Site Address: 193-201 Stoke Newington High Street, London N16 0LH
I refer to your letter of 9th July 2012 seeking Hackney Council's screening opinion of the above proposed development.
The Council has considered the Proposed Development and is of the opinion that it constitutes 'Schedule 2' development falling within the description at section 10(b) "Infrastructure projects" of Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.
Having taken into account the requirements of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the Council is of the opinion that the Proposed Development is not considered likely to have significant effects on the environment by virtue of its nature, size or location.
Accordingly, the Proposed Development does not constitute an EIA development for which an Environmental Impact Assessment/Environmental Statement would be required to accompany any planning application submitted.
In accordance with the planning practice adopted by the London Borough of Hackney, I can confirm that a copy of this screening opinion will be made available at the place where the planning register is kept."
Discussion and Conclusions
"Where a local planning authority adopts a screening opinion under regulation 5(5), or the Secretary of State makes a screening direction under paragraph 3(a) that opinion or direction shall be accompanied by a written statement giving clearly and precisely the full reasons for that conclusion."
"An authority shall adopt a screening opinion within three weeks beginning with the date of receipt of a request being made pursuant to paragraph (1) or such longer period as may be agreed in writing with the person making the request."
"Where it appears to the relevant local planning authority that–
(a) an application which is before them for determination is a Schedule 1 or Schedule 2 application; and
(b) the development in question has not been the subject of a screening opinion or screening direction; and
(c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations,
paragraphs (4) and (5) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1)."
"A detailed knowledge of the locality and expertise in assessing the environmental effects of different kinds of development are both essential in answering that question, which is pre-eminently a matter of judgement and degree rather than a question of fact. Unlike the local planning authority, the court does not possess such knowledge and expertise." R (Malster) v Ipswich Borough Council  EWHC 711 per Sullivan J (as he then was) at 61.
"Environmental Impact Assessment Screening Opinion issued advising that no EIA was required in March 2013 (ref: 2012/2627). This related to demolition of the existing buildings and western boundary wall at Wilmer Place and part demolition (façade retention) of 193-201 Stoke Newington High Street and redevelopment to provide a foodstore at ground floor with 68 residential units above."
"1. I refer to your correspondence dated 17th December 2009 regarding the above.
2. This represents a formal screening opinion in accordance with the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 in relation to the above works.
3. As an urban development project, the proposal falls to be screened for Environmental Impact Assessment purposes on the basis that it exceeds the thresholds contained in Schedule 2 section 10b of the above Regulations and those of Circular 11/99.
4. Having consulted relevant parties in relation to your request and having considered the information provided in your correspondence and Schedule 3 of the Regulations, I am of the opinion that in accordance with the Town and County Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 an Environment Statement is not required."
"I confess to finding this whole discussion somewhat sterile. The issue at this stage is not the validity of the screening opinion as such, but whether a flawed screening opinion led to failure to conduct an EIA, and, accordingly, undermined the legality of the planning process. The screening letter could and should have been more fully reasoned, and I find it difficult to understand why the opportunity was not taken to fill the gap more clearly in the planning officer's witness statement. However, I agree with the judge that the only reasonable interpretation is that the officer broadly accepted the reasoning of GVA Grimley's letter. I am unconvinced that there was any serious doubt about this among those interested."
"Where the court is satisfied that the applicant has been able to in practice to enjoy the rights conferred by the European legislation, and where a procedural challenge would fail under domestic law because the breach has cause no substantial prejudice, I see nothing in principle or authority to require the courts to adopt a different approach merely because the procedural requirement arises from a European rather than a domestic source."
"144. But the decisive point in my view is that the 2011 project was not EIA development. The August 2011 permission was issued after a defective screening process, but was followed in October 2011 by a process whose outcome was the same. The conclusion was that EIA was not required, which is what the City Council had found before granting planning permission. And that conclusion was correct. The August 2011 permission was not rendered lawful by the subsequent screening process. But neither the claimant himself nor anyone else was deprived of an opportunity they ought to have had to participate in an EIA process – in contrast to what happened in Berkeley. No one has suffered any substantial injustice. The claimant will suffer no real prejudice at this stage if the August 2011 planning permission is not quashed. Against that, it is true, the City Council would suffer no substantial prejudice if relief were granted. But is there any point in granting what would now be, both for the claimant and in the public interest, a futile remedy? I think not."
Ground Four: Did the planning officer misdirect the planning subcommittee on the first grant of planning permission in JR2? (JR2 only)
Discussions and conclusions
"Members are advised that this application should be determined on its merits. The previous grant of planning permission for this scheme should not be regarded as binding. However, if a different conclusion were to be reached on the planning merits from that reached previously it would have to be justified."
i) That JR2 was to be determined on its merits;
ii) That the previous grant in JR1 should not be regarded as binding; and
iii) That the matter had to be considered afresh.
Ground Five: Was the claimant treated unfairly by not having access to the Section 106 Agreement in JR2?
Discussions and conclusions
"1) The owner shall be required to enter into agreement under Section 278 of the Highways Act, to reinstate and improve the footway adjacent to the boundary of the site, and include if required, any access to the Highway, provision of cycle parking facilities for 22 cycles, measures for street furniture relocation, carriageway markings, access and visibility safety requirements, footways reinstatement and upgrade to paying in accordance with the councils design guide, unavoidable works required to be undertaken by Statutory Services will not be included in LBH Estimate or Payment.
2) Active programme for recruiting and retaining adult improvers and as a minimum take on at least one adult improver per £5 million of construction contract value and provide the Council with written information documenting that programme within seven days of a written request from the Council.
3) Commitment to the Council's local labour and construction initiatives.
4) Commitment to achieve a minimum of 30% of employment for the retail unit to be provided using the Council's local recruitment service (ways into work initiative), including across a spread of recruitment opportunities.
5) Considerate Contractor Scheme – the applicant to carry out all works in keeping with the National Considerate Contractor Scheme.
6) Retail unit to achieve a minimum of BREEAM 'Excellent' and residential units to achieve Code for Sustainable Homes Level 4.
7) Development to accord with requirements of Energy Strategy and that the CHP is capable of connection to a wider network.
8) Payment by the landowner/developer of all the Council's legal and other relevant fees, disbursements and Value Added Tax in respect of the proposed negotiations and completion of the proposed Section 106 Agreement prior to completion of the agreement.
9) Occupiers of new residential units to be ineligible from applying for residents parking permits.
10) Green travel plan including £2500 contribution towards monitoring costs.
11) Education contribution of £73,716.
12) Library contribution of £8980.
13) Open space / Play space contribution of £2662.
14) Affordable housing: 6 affordable rent units (1x1, 3x2, 1x3 and 1x4 beds) and 3 intermediate units (2x1, 1x2 beds).
15) Financial contribution of £180,000 towards public realm improvements within Wilmer Place and Stoke Newington High Street, including improvements to bus stops (inclusive of the cost of the S278 works).
16) Financial contribution of "125,000 towards Abney Park Cemetery.
17) Financial contribution of £50,000 towards Stoke Newington town centre management initiatives.
18) S106 monitoring costs of £17,365.27.
19) Viability review mechanism should the development not be commenced within 12 months."
Ground Six: Were the decisions irrational/unreasonable?
Discussion and Conclusions