England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 October 2015

Mr Justice Supperstone :

Introduction

1. The Claimant renews his application for permission to apply for judicial review of a decision of the Defendant, the London Borough of Hounslow ("the Council") of 2 April 2015 to grant planning permission to the Interested Party, Lend Lease Residential (CG) plc ("Lend Lease") for development at 408-435 Chiswick High Road, Chiswick, London W4 5TF ("the Site"), comprising:

"comprehensive redevelopment of the site for residential led mixed use development, including the change of use and alterations and additions to Empire House to residential accommodation (C3) including at plant level with recladding and addition of balconies to the existing tower, provision of residential floor space across the remainder of the site including a erection [sic] of a 7/8 storey block and four 3-storey town houses on Essex Place and a 5-storey block on the corner of Essex Place and Acton Lane, creating a total of 137 dwellings, retention and additions to the existing commercial space (A1 to A3 uses) including additional storeys to existing units, landscaping works and improvements to the public realm, cycle parking and creation of on and off-street parking."

under application reference 00248/408-430/P1 ("the Permission").

2. On 23 June 2015 Dove J refused permission on the papers. On 29 July 2015 Patterson J directed that the Claimant's renewed application for permission to apply for judicial review be heard at a rolled-up hearing.

Factual Background

3. On 11 May 2014, prior to submitting the Application, Lend Lease sought and secured from the Council prior approval for the exercise of permitted development rights under Class J of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995. The permitted development rights secured under Class J related to the change of use of Empire House only.
4. On 7 August 2014 Lend Lease made the Application. The Application was accompanied by a number of documents including a Planning Statement, a Design and Access Statement, and a Heritage Report.
5. On 25 November 2014 the Claimant submitted an objection to the Proposal.
6. On 28 November 2014 the Council published, on the webpage for the Application, further "winter views of" the proposal submitted by Lend Lease. Shortly thereafter Mr Christopher Chauncy, a local resident and objector to the proposal, telephoned the Council to enquire as to the late appearance of the further material, and asked for further time to make representations on this new evidence. He was advised that no additional time would be given; this was confirmed to him in a subsequent conversation with Mr Shane Baker of the Council.
7. At some point after the receipt of the Application the Council's officers requested that Lend Lease provide evidence and clarification as to the length of the vacancy of the existing office accommodation at the Site. Lend Lease provided information in the form of an updated report on the Site by Hanover Green, and various documents on the marketing of the site prepared by DTZ (collectively "the Marketing Evidence"). The Marketing Evidence was published on 20 January 2015 when it was placed on the Council's website.
8. An Officers' Report was prepared in respect of the Proposal ("the Officers' Report").
9. The Council's Planning Committee was scheduled to consider the application on 29 January 2015.
10. On 27 January 2015 Mr Chauncy e-mailed Mr Sean Doran, the Council's Planning Officer with conduct of the Application, to request an adjournment of the Committee meeting on the basis, inter alia, that the Marketing Evidence had been provided at such a late stage that there would be no opportunity for proper consideration of the additional documents if the meeting went ahead as scheduled. On 28 January 2015 Mr Doran replied, indicating that in his view the new material provided further information but did not alter the nature of the original proposal, so that there was no need for re-consultation.
11. Mr Chauncy made a further request to adjourn at the commencement of the Committee meeting on 29 January 2015. The minutes of the meeting record the Committee's decision to refuse the application (see para 67 below).
12. On 2 April 2015 the Council granted the Permission.

Legal and Policy Framework

Development Plan and Material Considerations

13. Section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") provides:

"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."

14. The legal principles governing the role of the development plan in planning decision-taking are well established.
15. In the recent case of Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 2489 (Admin), Patterson J emphasised (in the context of a challenge to the Secretary of State's decision) the importance of reaching and recording a judgment in respect of overall conformity with the development plan. She stated:

"27. It is axiomatic that the decision maker does not have to deal with each and every policy that has been raised by the parties during an appeal. That is not the Claimant's case. Rather, it is submitted a finding of compliance or conflict with the development plan and the basis for it needs to be made so that the decision maker can proceed to undertake the planning balance in an informed way. I agree. Such a step is not just form. Rather, it is an essential part of the decision making process, so that not only the decision maker but also the reader of the Decision Letter is aware and can understand that the duty imposed under section 38(6) has been discharged properly by the decision maker.

…

30. … counsel for the Second Defendant, in his review of the cases, emphasised that the decision maker had to make a decision. I agree the decision maker does, but it has to be made on the right basis. That is not just in relation to one policy but against the development plan as a whole. That does not mean a mechanistic approach of judging the proposals against each other and every policy that may be prayed in aid of a development or against it, but an evaluation of main policy areas within the development plan that are relevant to the proposal to be determined and an assessment of how the proposal fairs against them. That can be shortly stated and the process to be followed is for the individual decision maker. But it needs to be clear at the culmination of the decision-taking process what the eventual judgment is against the development plan as a whole. Only by carrying out that exercise can the next step of evaluating the planning balance be properly undertaken."

16. Emerging plans are material considerations even before they are adopted: Stratford-upon-Avon DC v Secretary of State for Communities and Local Government [2014] JPL 104 at para 5; NPPF, para 216.
17. Where an applicant for planning permission already has permission to develop the land in some other way, the existence of that "fall back" position may be a material consideration. In Samuel Smith Old Brewery (Tadcaster) v Secretary of State for Communities and Local Government [2009] JPL 1326, Sullivan LJ (with whom the other members of the court agreed) said:

"17. On behalf of the appellant, Mr Village QC, advances two grounds of appeal. …

18. The second ground is linked with the first. Mr Village submitted that the Secretary of State's decision was based on mere speculation, or a 'theoretical' as opposed to a 'real' possibility that an occupier who wished to use the retained buildings with the rail facilities would be found within the period of five years.

19. In support of this second ground of appeal, Mr Village referred to the decision of Brentwood BC v Secretary of State for the Environment (1996) 17 P&CR QBD. In that case the question was whether, in deciding to grant planning permission for the retention of an outbuilding in the green belt, the Inspector had considered whether there was 'a real prospect' that, if planning permission was not granted, then Mr and Mrs Grey would simply demolish the existing building and rebuild it five (rather than two) metres away from the house, in which case the rebuilt outhouse would be permitted development.

20. Mr Christopher Lockhart-Mummery QC, sitting as the Deputy High Court Judge, concluded that the Inspector had failed to make any finding 'as to the real prospect or likelihood of Mr and Mrs Grey actually demolishing the building in whole or in part and re-erecting it' (see p.66). It is important to note that in this context a real prospect is used as the antithesis of 'a merely theoretical' prospect (see p.65 of the judgment and the cases therein incited).

21. In order for a proposal to be a real prospect, it does not have to be probable or likely; a possibility will suffice. It is important to bear in mind that 'fall back' cases tend to be very fact-specific. One might envisage a case where it was thought by the Inspector or the Secretary of State that the fall-back position – for example, an old planning permission which was still capable of implementation – would be very damaging indeed if it was to be implemented. The point did not arise in Brentwood, where it was being argued that the impact of that which was permitted development would be much the same as the impact of the development for which planning permission was being sought. However, in a case where the adverse consequences of implementing the fall-back position would be very significant, Mr Village accepted that there would be no reason why the Secretary of State could not conclude, as a matter of planning judgment, that even if the risk of implementing the fall-back position was very slight indeed – an outside chance perhaps – the seriousness of the harm that would be done, if planning permission was not granted and the fall-back position was implemented, was such that the risk was not acceptable so that planning permission should be granted.

22. It is important, in my judgment, not to constrain what is, or should be, in each case the exercise of a broad planning discretion, based on the individual circumstances of that case, by seeking to constrain appeal decisions within judicial formulations that are not enactments of general application but are themselves simply the judge's response to the facts of the case before the court. By the same token, if the Secretary of State concludes, as a matter of planning judgment in any particular case, that there would be significant planning advantages if certain buildings were to be re-used in the manner contemplated in an application for permission for their retention, then there is no reason why the Secretary of State should not be entitled to say that there may well be only an outside chance of these buildings being re-used, but it is well worth keeping that option open at least for a period of five years."

Fairness and the Duty to Consult

18. In determining planning applications, local planning authorities are required to act fairly. In this regard, a local planning authority's Statement of Community Involvement ("SCI") is capable of giving rise to legitimate expectations as to notification requirements (R (Majed) v Camden LBC [2010] JPL 621, per Sullivan LJ at para 15).
19. The Council's SCI was adopted on 6 June 2013. It sets out "general principles of consultation" which include (at paragraph 2.3):

"We aim to give everyone the opportunity to get involved and influence planning policy and decisions, subject to resource and time constraints.

…

We will allow adequate time to respond and give full consideration to all views received."

Paragraph 6.7 of the SCI states that in addition to the minimum requirements set the Council will also where appropriate, inter alia:

"In some circumstances … consult on specific details. In these cases consultation will take the form as described above and in tables as appropriate. It will be a matter of judgment as to what and when the appropriate circumstances would be to trigger a consultation, dependent on the nature and scale of the details submitted."

Heritage

20. Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("The Listed Buildings Act") provides:

"(1) 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 sub-section (2), special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area."

Officers Reports

21. In R (Luton Borough Council) v Central Bedfordshire Council [2014] EWHC 4325 (Admin) Holgate J (at para 90) adopted the summary of the legal principles which govern challenges to decisions taken by a local planning authority given by Hickinbottom J in the case of R (Zurich Assurance Ltd trading as Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin) at paragraphs 15-16:

"15. Each local planning authority delegates its planning functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. With regard to such reports:

(i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.

(ii) When challenged, such reports are not to be subjected to the same exigesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole. Consequently:

'[A]n application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken'. (Oxton Farms, Samuel Smiths Old Bewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Judge LJ as he then was).

(iii) In construing reports, it has to be borne in mind that they are addressed to a 'knowledgeable readership', including council members 'who, by virtue of that membership, may be expected to have a substantial local and background knowledge' (R v Mendip District Council ex parte Fabre [2000] 80 P&CR 500, per Sullivan J as he then was). That background knowledge includes 'a working knowledge of the statutory test' for determination of a planning application (Oxton Farms, per Pill LJ).

16. The principles relevant to the proper approach to national and local planning policy are equally uncontroversial:

(i) The interpretation of policy is a matter of law, not of planning judgment (Tesco's Stores Ltd v Dundee City Council [2012] UKSC 13).

(ii) National planning policy, and any relevant local plan or strategy, are material considerations; local authorities need not follow such guidance or plan, if other material considerations outweigh them.

(iii) Whereas what amounts to a material consideration is a matter of law, the weight to be given to such consideration is a question of planning judgment: the part any particular material consideration should play in the decision making process, if any, is a matter entirely for the planning committee (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780 per Lord Hoffmann)."

22. At paragraphs 91-98 of his judgment Holgate J also drew together some further citations, which, at paragraph 94, include the observations of Baroness Hale in Morge v Hants CC [2011] UKSC 2:

"… In this country planning decisions are taken by democratically elected councillors, responsible to, and sensitive to the concerns of their local communities. As Lord Hoffmann put it in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and Regions [2003] 2 AC 295, para 69: 'In a democratic country, decisions about what the general interest requires are made by democratically elected bodies or persons accountable to them'. Democratically elected bodies go about their decision making in a different way from 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: the 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."

23. A further authority to which regard should be had is the decision of Woolf J, as he then was, in Gransden & Co Ltd v Secretary of State for the Environment [1987] 54 P&CR 86, where he stated (at page 94):

"… it is essential that the policy is properly understood by the determining body. If the body making the decision fails to properly understand the policy, then the decision will be as defective as it would be if no regard had been paid to the policy."

Local Plan Policies

24. Policy EP2 of the Hounslow Employment Development Plan Document ("Employment DPD") states that:

"In town centres and at Key Existing Office Locations on the Great West Road and at Bedfont Lakes (Refer to Proposals Map) a change of use from offices will be acceptable if evidence is provided of active marketing of the site for offices for a period of at least two years.

Proposals for the redevelopment of office floorspace for a mix of uses where the above criteria are not met will only be considered appropriate where it can be demonstrated that the equivalent number of jobs can be provided."

25. Policy ED2 of the Emerging Local Plan includes a similar active marketing requirement where office space is to be lost.
26. Policy CC3 of the Emerging Local Plan includes the following:

"Our approach

We will support high quality tall buildings in identified locations and which contribute to the regeneration and growth of that area and in accordance with the principles of sustainable development.

We will achieve this by:

a. Focusing tall buildings (20m and over) in the town centres of Feltham and Hounslow where access to public transport is good and where they can contribute to the ongoing regeneration of both areas;

b. Supporting a limited number of tall buildings in Brentford town centre. These should be carefully designed and placed so as not to adversely impact on views from and between Kew Gardens (RBGK and WHS), Syon Park and the Thames foreshore landscape. They should also respect and respond to the area's special townscape and heritage values;

c. Focusing tall buildings along certain sections of the Golden Mile frontage. These should be carefully placed so as not to create a linear wall of tall buildings, or substantially impact on the setting of Kew WHS or Syon Park;

d. Preserving the predominantly 2-to-3 storey (less than 10m) building heights across the rest of the borough with some limited scope for 4-to-6 storey (up to 20m) buildings/elements along main streets (for example London Road), to assist with way-finding and where the opportunity exists for higher density development;

e. Not seeking to replace existing tall buildings which are in inappropriate locations and not allowing them to be a justification for the provision of new ones;

f. Undertaking more detailed urban design analysis where required; and

g. Working with our partners, particularly English Heritage and Royal Botanic Gardens Kew."

There are several proposed modifications to this policy, but no modifications are proposed to either sub-paragraphs (d) or (e).

27. Paragraph 6.10 of Policy CC3 supporting text states that "Hounslow has a number of tall buildings that do not positively contribute to the townscape and their existence should not be grounds for the provision of more".
28. The site allocations contained in the Emerging Local Plan includes reference to the Empire House site. The Site is allocated for employment, with a proposed use as "hotel, office and retail". The justification for the allocation is that "this is a large, partly-vacant site within Chiswick Town Centre which provides an opportunity for improving the mix of uses in the Centre through redevelopment as a hotel, office and larger floor plate retail accommodation".

Grounds of Challenge

29. In his oral submissions Mr Daniel Kolinsky QC, for the Claimant, challenged the decision to grant planning permission on five grounds (retaining the original numbering of the grounds of challenge for ease of cross-referencing):

(1) The analysis of emerging policy in the Officers' Report was defective and significantly misleading in particular with reference to tall building policy CC3 (Ground 2).

(2) The Council failed to evaluate whether there was a true fall-back position (Ground 3).

(3) The Council failed to recognise the clear breach of policy EP2 of the Hounslow Local Plan and to address the question of whether there was overall conformity with the development plan on a lawful basis (Ground 1).

(4) The Council's approach to late marketing evidence (submitted by the developer as the Officers' Report was being finalised) was unfair; contrary to the principles of natural justice and the requirements for fair consultation (and was inconsistent with the expectations of the Council's own SCI) (Ground 4).

(5) The approach to compliance with section 72 of the Listed Buildings Act was legally deficient (Ground 5).

The Parties' Submissions and Discussion

Ground 2: erroneous approach to emerging policy

30. The following passages in the Officers' Report are of relevance in relation to this ground:

"7.51 The Character and Context Study describes the area as being of high design quality, but also being highly sensitive to change, with no suitability for tall buildings. It forms part of Character Area E where Empire House is described as incongruous.

…

7.55 … Policy CC3 of the emerging local plan states that there is limited scope for 4-6 storey buildings of up to 20m height along main roads and this stretch of the High Road (from Chiswick Roundabout to Turnham Green) is partly characterised by 5-6 storey buildings, including The Moran Hotel, 500 Chiswick High Road and, just over the border in Acton is the 7-8 storey Chiswick Point, which is a much wider structure. Further context for the site is formed by the recently erected six-storey development at 2 Bollo Lane to the east and taller buildings (including consented buildings of up to 12-storeys) within Chiswick Business Park to the west. The appearance of the proposed development could be described as an extension of this character in relation to its character and quality. …

7.64 In terms of the other new buildings, they are of scale appropriate for the town centre and the street scene, showing the same careful use of materials, which will be conditioned. The combination of the buildings creates a new sense of place, bringing and linking Essex Place into the High Road. The same post-modern contemporary style has been approved at the Acton Lane site.

7.65 The Acton Lane building is 5 storeys high, 16.5m high, as opposed to the approved 4-storey building, which was 13m high. This increase in height is not considered to be harmful to the area, nor be out of character with it, as evidenced by the building opposite, for example. The design is similar to that which is already approved for the site and has been approved in nearby developments and it is comparable in height and scale to nearby buildings.

7.66 The Essex Place buildings would be a new type of development on this site. The town houses are considered to be of an appropriate scale for this end of the street, creating a gap between the higher Acton Lane building and the main Essex Place building, meaning that there is no canyon effect in this rejuvenated street and creating gaps in the development, such that there is no tunnel effect. The flatted block is 8 storeys high, in part, which much of this section immediately behind the taller Empire House, with the rest of this tallest section angled away from Turnham Green following the curve of the road. The remaining sections are 7/6 storeys, with some of the 7 storey building hidden from view in Turnham Green by Empire House, with the remainder, being limited in visibility from the Green due to its distance from the High Road. In summer views of this building are largely obscured from the Green by existing trees. In winter the building is more apparent, but it would not be a dominant feature, as it is set back from the High Road, partially obscured by trees and would be secondary to Empire House.

…

7.73 While the Character and Context Study says that this is a low height area, emerging Local Plan Policy CC3 does allow scope for tall buildings up to 4-6 storeys/20m high along main streets and the effect of these new buildings set behind the High Road is not harmful to the character of the area. This is a town centre site and the scale of development is appropriate to such a location, and despite the low-scale aspirations for Chiswick, in this instance, as it enables wider regeneration of the area, which is positive. This conclusion accounts for the recognition that the applicant needs to build the level of development proposed in order to make the scheme viable and provide affordable housing. Crucially, this also allows the overall appearance of Empire House and Essex Place to improve, which, given demolition is not proposed, is considered to enhance the character and appearance of the Turnham Green Conservation Area. Furthermore, it improves the appearance of the setting of the adjacent listed Packhorse pub and the Church on Turnham Green."

31. Mr Kolinsky submits that Empire House is undoubtedly a tall building in an inappropriate location. Given that the Proposal includes the erection of an additional tall building, the 8-storey Essex Place block, alongside Empire House, there is, he submits, clearly conflict with sub-paragraph (e) of Policy CC3. Yet the Officers' Report fails to address this aspect of Policy CC3 at all; instead it focuses on the contents of sub-paragraph (d) of the emerging policy, which it presents as supporting the Proposal.
32. Essex Place is not 4-6 storeys, nor is it along a main road. Therefore the reasoning in the last sentence of paragraph 7.66 of the Officers' Report is, Mr Kolinsky submits, the inverse of the policy in sub-paragraph (d). However, this tension is not acknowledged. Further the policy prohibits using Empire House as a good reason for the building of Essex Place that is proposed. This has not been recognised by the Council's officers. Either the officers misdirected themselves as to the policy or they did not analyse it correctly. There can be no new tall building justified by reference to an existing one. Ground 2 raises what Mr Kolinsky describes as a short point on a critical issue. He described one of the Claimant's concerns as being the disconnect between the Council's aspirations for the site and this planning decision.
33. Mr Kolinsky suggests that paragraph 7.66 of the Officers' Report seeks to justify the presence of the 8-storey Essex Place tall building on the basis at least in part that it is "secondary to Empire House". That is precisely the approach which Policy CC3 by sub-paragraph (e) is intended to avoid.
34. The Officers' Report's analysis of sub-paragraph (d) of Policy CC3, Mr Kolinsky submits, is itself misleading. It does not provide general support for tall buildings; rather it supports the limited development of buildings up to 20m (4-6 storeys) which are located along main streets. It therefore provides no support for the new tall elements of the Proposal. The proposed tower at Essex Place is well over 4/6 storeys tall, and is set back from Chiswick High Road. Essex Place is a secondary road (currently a service road) which runs off the residential, Acton Lane.
35. The approach to Policy CC3 in the Officers' Report was, Mr Kolinsky submits, accordingly defective (see Gransden, at para 23 above).
36. In addition Mr Kolinsky relies on the Site Allocations Topic Paper accompanying the Emerging Local Plan. He referred to the topic paper as being the evidence base for part of the emerging plan. With regard to Empire House it states that the "Existing tower should be replaced as currently detracts from character of the area and is not deemed a suitable location for tall buildings". However, as Mr Richard Harwood QC, for the Council, and Mr James Strachan QC, for Lend Lease, point out the latest version of the relevant paper relating to changes to the local plan refers to the "redevelopment" of Empire House, not its demolition.
37. I do not accept that there was a failure to take into account Policy CC3(e), or that the Council erred in its approach to Policy CC3. The Officers' Report expressly refers to Policy CC3 at paragraphs 7.55 and 7.73. It notes at paragraph 7.51 that in the Council's own character area study the proposal is situated in an area which is identified as unsuitable for tall buildings. However in deciding the Application the officers and the Council were entitled to consider the overall effect of the development in the light of Policy CC3 and all other relevant considerations. The Officers' Report contains a detailed analysis of the proposal as a whole, with its constituent elements including in particular the Essex Place building.
38. Sub-paragraph (e) of Policy CC3 was not expressly referred to in the Officers' Report. However I accept the submission made by Mr Harwood that there was no need to make specific reference to that sub-paragraph. The report was not advancing a reason which contravened the Policy in CC3(e). Sub-paragraph (e) of Policy CC3 states that inappropriate tall buildings are not a justification for new tall buildings. However the new buildings in this scheme are justified in the Officers' Report on the basis that they are appropriate in the town centre and street scene as a whole. It was the judgment of the officers that "The appearance of the proposed development could be described as an extension of this character in relation to its character and quality" (para 7.55).
39. The Committee would have been well aware of Policy CC3, including paragraph (e), because Policy CC3 was the part concerning tall buildings. It had been referred to in various representations made by local groups, and was quoted by the Claimant in his e-mail sent to each of the Committee members on 27 January 2015.
40. The last sentence in paragraph 7.66 of the Officers' Report should not be taken out of context; it needs to be considered together with paragraphs 7.55, 7.64 and 7.66, and the report must be read as a whole. I agree with Mr Harwood that the rationale for the Essex Place building in the Report is in the consideration of Essex Place in the context of the street scene and location as a whole. It was apparent to the Committee that Essex Place is 8 storeys (para 7.66). The Committee had to look at the development as a whole and decide whether it was acceptable, which it did.
41. I am not satisfied that when the relevant paragraphs in the Officers' Report (see para 30 above) are read as a whole there was any failure by the officers or the Committee to take sub-paragraph (e) of Policy CC3 into account, or that there was an unlawful interpretation of the policy, whether it be of sub-paragraphs (d) or (e) of Policy CC3 as contended for by the Claimant.

Ground 3: the fall-back position

42. In determining the Application the Council took into account, and assigned weight to, the fact that Lend Lease has a Class J permitted development right in respect of the Site (see Officers' Report, para 7.26).
43. Mr Kolinsky observes that in its pre-application advice to Lend Lease of 10 February 2014 the Council correctly acknowledged that the materiality of any fall-back position would be dependent upon the clear demonstration of its viability and feasibility. The Claimant's complaint is that the Council adopted the correct analysis in the pre-application letter to Lend Lease, but not when the decision was taken. The Officers' Report does not at any point consider whether there was any realistic prospect of Lend Lease actually implementing the Class J permitted development in the event that the Application was refused; nor indeed, suggests Mr Kolinsky, is there any assertion in the Planning Statement or any other application document that the Class J right might be implemented. There is, Mr Kolinsky submits, no material in the report or the minutes that grapples with whether the test to be applied, namely whether there is some likelihood of fall-back being implemented, has been satisfied. Indeed there is no evidence before the court from the Council that it engaged with this issue at the time the decision was taken.
44. Mr Kolinsky submits that the failure of the Council to consider the likelihood of the Class J right being implemented renders the Permission unlawful.
45. There is before the court a second witness statement of Ms Janet Kidner, Project Director at Lend Lease, of 19 August 2015 which states at paragraph 6:

"In his proposed claim, the Claimant now appears to be questioning whether the Council considered whether there was any realistic prospect of Lend Lease actually utilising the Class J permitted development rights in the event that the planning application were refused. This criticism is artificial. I consider it is obvious and I can confirm that if the Council's Planning Committee had refused to grant planning permission for the comprehensive redevelopment scheme then Lend Lease would have pursued a strategy to proceed with the necessary works to change the use of the tower pursuant to its Class J permitted development rights in order to crystallise the residential use. It is well known and also obvious that the commercial value of residential use floor space is generally significantly greater than office floor space (let alone the office floor space in question here). In addition, the change of use from office to residential pursuant to the Class J permitted development rights would then have meant that any future applications for planning permission would have been in the context of an existing residential use of the tower."

46. Mr Kolinsky is critical of this evidence. First, he comments it is notable for containing a great deal of assertion, but no supporting evidence. Had Lend Lease genuinely regarded the implementation of the Class J right as a realistic option, one would expect, he says, this fact to have been recorded in some form of contemporaneous internal document. No such document has been presented by Lend Lease. Second, the omission of supporting evidence is particularly significant given Ms Kidner accepts (at para 4 of her statement) that Lend Lease's acquisition of the Class J right was the first stage in a "two step" planning strategy to secure permission for the comprehensive redevelopment of the Site. The acquisition of the permitted development rights in this way is, Mr Kolinsky submits, strongly indicative of an intention not to develop the permitted development rights as such, but merely to use the permitted development right as a stepping stone to a wider planning permission. Third, there is no evidence that Lend Lease considered the conversion of the existing tower into 62 units was a realistic option or provided a sufficient return in itself for the £24,000,000 it paid for the Site. Fourth, there are at the very least question marks as to the form of residential development which could be achieved without any further grant of planning permission. Empire House is an office building clad in glass; there is no fenestration. There is, Mr Kolinsky suggests, a clear question mark over what external alterations would be required in practice to achieve the residential use and whether and to what extent these could be undertaken to allow the use to commence before the expiry of permitted development rights on 30 May 2016. External alterations to achieve fenestration to support residential dwellings would at the very least have been required.
47. In support of his submission that the Council erred in dealing with the fall-back position Mr Kolinsky referred to the law on materiality of fall-back positions set out in Brentwood Borough Council v Secretary of State for the Environment [1996] 72 P&CR 61; R v Secretary of State for the Environment ex parte Ahern [1998] Env. LR 189; and Samuel Smith Old Brewery (Tadcaster) (supra). In particular Mr Kolinsky placed emphasis on the passage in the judgment of Mr Lockhart-Mummery QC, sitting as a deputy judge of the High Court, in Ahern at p.196:

"… If a fall-back or alternative use is to be undertaken it will, in most cases, be a material consideration to which regard must be had…

The requirement to have regard to the consideration imports a requirement on the decision maker to have before it sufficient material so that the consideration can be assessed. In the context of fall-back cases this all reduces to the need to ask and answer the question: is the proposed development in its implications for impact on the environment, or other relevant planning factors, likely to have implications worse than, or broadly similar to, any use to which the site would or might be put if the proposed development were refused? By 'might' I do not mean a mere theoretical possibility which could hardly feature in the balance (see, especially, the Brentwood case). For a fall-back suggestion to be relevant there must be a finding of an actually intended use as opposed to a mere legal or theoretical entitlement. …"

48. Mr Kolinsky submits that the question postulated by Mr Lockhart-Mummery in Ahern was not asked or answered.
49. However, Sullivan LJ in Samuel Smith Old Brewery (Tadcaster) Ltd (see para 17 above) does not suggest that there is a requirement for a finding of an actually intended use for a fall-back position to arise. In Gambone v Secretary of State for Communities and Local Government [2014] EWHC 952 (Admin) Mr Ian Dove QC (as he then was), sitting as a deputy judge of the High Court, reviewed a number of authorities placed before him dealing with considerations which had been identified in earlier authorities as a "fall-back" argument. He concluded:

"26. The fall-back argument is in truth no more or less than an approach to material considerations in circumstances where there are, or may be, the opportunity to use land in a particular way, the effects of which will need to be taken into account by the decision maker. That involves a two stage approach. The first stage of that approach is to decide whether or not the way in which the land may be developed is a matter which amounts to a material consideration. It will amount to a material consideration on the authorities, in my view, where there is a greater than theoretical possibility that that development might take place. It could be development for which there is already planning permission, or it could be development that is already in situ. It can also be development which by virtue of the operation of legal entitlements, such as the General Permitted Development Order, could take place.

27. Once the question of whether or not it is material to the decision has been concluded, applying that threshold of theoretical possibility, the question which then arises for the decision maker is as to what weight should be attached to it. The weight which might be attached to it will vary materially from case to case and will be particularly fact sensitive…"

50. The Council's officers concluded that the prior approval was a potential fall-back option and attached some weight to it (para 7.26). Mr Harwood submits that the Committee would have been plainly entitled to consider on the basis of the material in the Officers' Report that there was a high likelihood of the fall-back being exercised: the marketing exercise in 2012 had shown that the majority of the interest in the tower was for residential use; Lend Lease had gone to the trouble of securing prior approval for residential conversion and had done so prior to making the planning application; their planning application was for residential conversion of the tower, confirming that it could and would be done. If it was not done under the application scheme, then the natural conclusion is, Mr Harwood submits, that it would be done under the prior approval.
51. Both Mr Harwood and Mr Strachan observe that at no time during the consultation process or before the Permission was granted did the Claimant or anyone else during the planning application question the existence of the permitted development rights, or Lend Lease's ability to implement and rely upon them. In those circumstances they submit that both the officers and the Council were entitled to proceed on the basis that there was more than a theoretical possibility of those rights being exercised. This is a new point, not one taken before the Committee; that being so there was no reason to develop the case on fall-back before the Committee. In any event there was evidence from which the decision maker could take the decision (see section 6A "Principle of development (and loss of existing floor space)" in the Planning Statement of July 2014). Mr Strachan says that if the issue had been raised before the Committee the answer would have been given which is now contained in Ms Kidner's second witness statement.
52. Mr Kolinsky does not accept that this is a new point. He says that it was raised by the Council in its pre-application letter. Further, there was, he submits, clearly an issue as to whether there was a need for windows; it is accepted that many of the windows would not open. Mr Strachan responds that there was no requirement for openable windows in an air-conditioned building. In any event it has never been said before that the windows cannot be opened and therefore the prior grant cannot be implemented. The case now put by the Claimant is not one that has been pleaded.
53. I consider that in circumstances where it was not suggested that there was no possibility of the prior approval being implemented, the Committee was entitled on the evidence before it to treat the prior approval as a material consideration. The Council's officers and the Committee were entitled to conclude that the prior approval was a material fall-back option and attach some weight to it.

Ground 1: breach of statutory duty (s.38(6) of the 2004 Act)

54. Policy EP2 of the Employment DPD (see para 24 above) is unequivocal in its requirement that, where office space is to be lost and an equivalent number of jobs not provided, proposals are acceptable only where at least two years of active marketing evidence is presented. The Proposal provided only seven months' marketing evidence. Neither Lend Lease nor the Council has sought to suggest that the Proposal complied with this policy. Mr Kolinsky emphasises that EP2 is the only policy in the Development Plan which goes to the question of acceptability of loss of offices.
55. Mr Kolinsky submits this ground of challenge raises a short point, namely that nowhere does it appear on the face of the official records, either in the Officers' Report or the minutes, as to whether there is conformity with the Development Plan, having regard to breach of EP2. EP2 deals with the loss of offices in the town centre and accordingly is specific to the situation that has arisen in the present case. Other policies, E1 and E2 are generic.
56. In these circumstances, Mr Kolinsky submits, that it was incumbent on the Council to consider the consequences of the breach of Policy EP2, and in particular to address the critical question of whether in the light of that breach, the proposal was or was not in compliance with the development plan as a whole. That exercise was not undertaken. The Officers' Report does not expressly acknowledge the breach of Policy EP2. Further, the Report is silent on the question of development plan compliance overall. For these reasons Mr Kolinsky submits the Permission is rendered unlawful.
57. The legal principles governing this ground are not in issue (see para 15 above). In support of his submission that in granting the Permission the Council failed to discharge its duty under s.38(6) of the 2004 Act Mr Kolinsky relies on the recent decision of R (Hampton Bishop Parish Council) v Herefordshire Council [2015] 1 WLR 2367 in which Richards LJ at para 33 stated:

"… It will be clear from what I have said above that in my view compliance with the duty under section 38(6) does as a general rule require decision makers to decide whether a proposed development is or is not in accordance with the development plan, since without reaching a decision on that issue they are not in a position to give the development plan what Lord Clyde described as its statutory priority. To use the language of Lord Reed JSC in Tesco Stores Ltd v Dundee City Council (Asda Stores Ltd intervening) [2012] PTSR 983…, they need to understand the nature and extent of any departure from the development plan in order to consider on a proper basis whether such a departure is justified by other material considerations."

58. Mr Harwood and Mr Strachan submit that despite not meeting the requirements of marketing in Policy EP2 the officers and the Committee were entitled to conclude that the principle of the development (involving a residential-led mixed use scheme without office floor space) was acceptable in principle under the development plan.
59. The legal requirement is to determine the application against the development plan as a whole. Policy EP2 has to be considered alongside the other relevant policies of the Council's own Local Plan. The Council and its officers, Mr Strachan submits, were correct to approach the issue of compliance with the development plan as a whole in reaching their overall summary of the principle of the development being acceptable.
60. Relevant parts of the Officers' Report in this regard include:

"7.23 The applicant has provided a report on behalf of the previous owners of the site from 2012 which concludes that Empire House is not ideally suited to meet current modern office requirements for a number of reasons. Some of these relate to the physical constraints of the building and others relate to the location and competition in the market. …

…

7.27 Taking into account the characteristics of Empire House as detailed above, and that the tower has lain vacant for a considerable period of time, the loss of the office floor space is deemed appropriate when replaced by residential development, in this instance.

7.28 This is particularly in the context of the significant housing needs of the borough and London in general and the government's policy allowing offices to change to residential under the prior approval process, which seeks to boost housing delivery.

…

7.38 The principle of the residential and retails uses of this town centre site is acceptable, given the obsolescence of the existing office use. A rejuvenated retail element is retained at the ground floor of the High Road (which is part of the brief of the site allocation). There is a greater concentration of housing than the 35 in the allocated sites paper, but the quantum is within London Plan density ranges. Additionally, the proposal regenerates the area to the rear of the site and provides much needed affordable housing for Chiswick and the Borough. Consequently the principle is acceptable. …"

61. Mr Harwood and Mr Strachan submit that members were being advised that the principle of the development and the detailed design accorded with the development plan policies and there was a failure to comply with EP2 on the marketing requirements for the release of employment land. A fair reading of the Report, they submit, would lead to the conclusion that it was advising that the proposed development was in accordance with the development plan as a whole given the acceptability of the proposed use as well as the totality of the policy compliance. Paragraph 7.27 of the Officers' Report contains the conclusion that the loss of office floor space is acceptable, having regard to the policies as a whole.
62. The duty under s.38(6) of the 2004 Act was noted at paragraph 6.1 of the Officers' Report. Section 7 of the Report then set out the main planning issues to be considered (para 7.1) and thereafter analysed the effect of the various individual policy provisions and their application to the proposed development which led the officers to the conclusion that the principle of the development would be acceptable in this location. As part of that analysis Policy EP2 was identified and addressed (see paras 7.22 and 7.25). The Committee was aware of the provisions of Policy EP2; it was advised that "marketing took place from February to August 2012" and so it knew that the provisions had not been met in respect of the identified marketing period. Indeed in making the planning application Lend Lease had referred to Policy EP2 and the Planning Statement recognised expressly that the site had not been marketed for two years, but went on to identify why it was generally agreed that the current office floor space on the Site was deemed of poor quality and no longer suitable for the needs of the modern office market. Moreover the minutes of the Committee meeting make clear that the issue of marketing and loss of employment floor space was the subject of consideration at the meeting itself.
63. In Gill v Secretary of State for Communities and Local Government [2015] EWHC 2660 (Admin) Mr Rhodri Price Lewis QC, sitting as a deputy High Court judge, recently stated:

"22. The law does not require Inspectors to include in their decisions an express conclusion as to whether or not a proposal is in accordance with the development plan or to adopt any particular mantra: see Lord Clyde in City of Edinburgh Council Secretary of State for Scotland [1997] 1 WLR 1447 at 1459H-1460C. In R (Hampton Bishop Parish Council) v Herefordshire Council [2015] 1 WLR 2367 at 2381D Richards LJ felt able to conclude that committee members had decided that the proposed development before them was not in accordance with the development plan even though there was no express reference to that conclusion in the officers' report. It is right that in Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 2489 (Admin) Patterson J agreed with the submission that:

'a finding of compliance or conflict with the development plan and the basis for it needs to be made so that the decision maker can proceed to undertake the planning balance in an informed way' [27].

She observed:

'Such a step is not just form. Rather it is an essential part of the decision making process, so that not only the decision maker but also the reader of the Decision Letter is aware and can understand that the duty imposed under section 38(6) has been discharged properly by the decision maker.'

She concluded:

'It needs to clear at the culmination of the decision taking process what the eventual judgment is against the development plan as a whole' [30].

23. However, Mrs Justice Patterson's judgment in Dartford Borough Council v Secretary of State for Communities and Local Government [2014] EWHC 2636 (Admin) makes it clear that the 'eventual judgment' can be implied from a fair reading of the decision letter as a whole, see [39]-[40]. That is consistent with the approach of the Court of Appeal in the Hampton Bishop case and was accepted as being correct by Mr Darby on behalf of the claimant."

64. In my judgment it is clear from a fair reading of the Officers' Report that it was advising that the proposal was in accordance with the development plan as a whole given the acceptability of the proposed use and the totality of the policy compliance, despite the breach of the requirement in Policy EP2 for active marketing over a two-year period. I do not consider that in granting the Permission the Council failed to discharge its duty under s.38(6) of the 2004 Act.

Ground 4: unfairness

65. The Claimant's complaint in relation to this ground is summarised at paragraph 66 of the Statement of Facts and Grounds in the Claim Form as follows:

"In refusing to adjourn its determination of the application, so as to allow objectors the time needed adequately to address the Marketing Evidence, the Council acted so unfairly as to vitiate the Permission."

66. Mr Kolinsky submits that the very substantial new material addressing questions of central significance to the issue of the extent of conformity with the development plan as a whole and the substantive justification for departing from the requirements of Policy EP2 was submitted so late in the process that there was no realistic opportunity for objectors to consider and address it before the Application was determined.
67. At the Committee meeting on 29 January 2015 the Chair asked the officers to respond to the request for the application to be deferred. The minutes note:

"Shane Baker, Planning Officer, advised that the request was in connection to documents relating to the application, which had been placed on the website. These included winter views and documents in relation to affordable housing, which was typically a process that ran through the application and was similar to the negotiation of other planning obligations. Evidence had also been provided in relation to marketing and the state of the building, but the gist of that argument had already been made in the planning statement. The information had been provided by the applicant and was supplementary to the original application. It did not comprise a change in the nature of the application and Mr Baker did not feel that it warranted deferral.

Benita Edwards, Legal Officer, noted that it appeared that all of the documents referred to had been published on the website and that all material information had been assessed as noted in the Report. Accordingly, she had no qualms about the Planning Committee determining the application that evening."

68. Mr Kolinsky submits that the answer to the question that was put to Mr Baker and Ms Edwards at the meeting (see para 67 above) shows that the wrong question was asked, namely whether there was a change in the nature of the application.
69. Further Mr Kolinsky submits that passages in the SCI (see para 19 above) created a legitimate expectation that objectors would have an opportunity to respond to further documents produced during the application process. In support of this submission he referred to the observations of Lord Wilson JSC in the case of R (Moseley) v Haringey LBC [2014] 1 WLR 3947, at paras 24 and 25 on the concept of fairness, and to the case of R (Majed) v Camden LBC (see para 18 above), in particular in the planning context. He acknowledged that there was no precise prescription in the SCI for circumstances where late information comes to light but he suggests that a legitimate expectation arises in the present context of a major development in accordance with general principles, there being no good reason to the contrary.
70. Mr Chauncy in his witness statement of 1 June 2015 states that he has been a committee member of the Acton Green Residents' Association for about three years. He is the committee member responsible for Planning matters. That means that he looks after all planning matters that affect Acton Green, a residential area that lies just north of the Site. Commenting on the Marketing Evidence that he noticed on 26 January 2015 had been put up on the website, he states at paragraph 21 of his witness statement that:

"In fact, having had the opportunity to consider the documents, it seems to me that they do not justify important conclusions expressed in the officers' report. Crucially the documents do not show evidence of marketing as a redevelopment opportunity for offices for a period of two years and do not produce evidence sufficient to justify the loss of employment use of the building. Quite to the contrary, the documents produced show no real evidence that the building was actually marketed at all in any serious way for employment uses. The Hanover Green document is marked as a draft document and whilst it states that Empire House is not ideally suited to meet current modern office requirements, it provides no real evidence of that… The DTZ documents clearly suggest that the site presents good opportunities for employment uses… The DTZ report produced specifically refers to the 'Excellent opportunity' that the site presents to take advantage of the thriving local market for office space and for hotel use. Whilst the letter from Charles Howard of DTZ dated 19 January 2015 … says that 'the majority of interest [during a two month marketing period] was generated from the residential sector' it falls a long way short of dismissing employment uses. I strongly believe that the officer was wrong to conclude that the site was unsuitable for employment uses and given the opportunity I would have investigated the documents produced further and sought independent advice and evidence to show that the site was entirely suitable for employment uses."

71. Mr Kolinsky submits that the planning officers plainly realised there was a need for further information on marketing and obsolescence. That being so the objectors should have been given an opportunity to respond, and it was unfair not to adjourn consideration of the application until they had had an opportunity to engage with the relevant material. The Marketing Evidence purported to contain material justifying what was otherwise just a bare assertion in Lend Lease's Planning Statement that the loss of office space in Empire House was acceptable. What, he says, Mr Chauncy wished to comment on was the inconsistencies in the Marketing Evidence, which could not have been known about before it was first published on 20 January 2015. This point was fundamental to the issue of compliance with Policy EP2, the weight to be attached to the non-compliance with that policy and asserted justification for it, and the potential of the Site to deliver office/employment generating uses as part of any redevelopment proposal. In addition Mr Kolinsky submits that Mr Chauncy was deprived of the chance to draw attention to, and comment on, the clear inconsistencies there were between the 2012 Hanover Green Report and the DTZ material.
72. Further Mr Chauncy and others lost the opportunity to respond to the Marketing Evidence by drawing attention to the evidence within it suggesting that in fact the site could be suitable for office and/or hotel uses (both employment generating uses) and supplementing that evidence as might be necessary with, for example, up-to-date evidence as to the state of the office market in Chiswick, and the capacity of the Site to contribute to that market. The Hanover Green Report does not address the extent of local demand for secondary office space which was material to the question of conformity with Policy EP2 and the weight to be placed on the justification for departing from the requirements of that policy.
73. In conclusion Mr Kolinsky suggested that further responses from the Claimant and objectors would have focussed the Committee's mind on the inadequacy of the marketing exercise undertaken and could have influenced its views as to the significance of the breach.
74. Mr Harwood and Mr Strachan submit that Mr Chauncy had the opportunity to make any comments he wanted to on the material and to produce any other information had he wanted to in his e-mails to the Council before the meeting and in presenting his oral representations to the Committee at its meeting on 29 January 2015. Moreover Mr Chauncy still does not explain or produce any further information which he says he was deprived of presenting previously, or which had not already been identified. The additional marketing evidence did not, they suggest, affect the nature of the application; nor did it affect the ability of the objectors to comment on its merits. Mr Strachan says that if Mr Chauncy had anything more to say he would have said it.
75. Mr Kolinsky responds: first, whether and if so, the extent to which the Marketing Evidence did in fact support the gist of the Planning Statement were precisely the matters which Mr Chauncy wished to have the opportunity to consider. Second, in so far as the Officers' Report assessed the Marketing Evidence, it was doing so without the benefit of consultation responses as to the strength of that evidence.
76. However whilst an SCI is capable of creating a legitimate expectation (see Majed), I do not accept that one arises in the present case. There is, in my view, no relevant promise in this SCI about further consultation when further material is provided by an applicant. The SCI does not contain a promise to consult on documents received during the course of the application. It does not create the legitimate expectation for which the Claimant contends (R (Majed) v London Borough of Camden (see para 18 above)). In Majed there was an express promise that persons affected would be notified of planning applications. In that case Sullivan LJ found (at para 15) a clear breach of the appellant's legitimate expectation that he would be notified of planning applications, such as the application made by the interested party, in accordance with the terms of Annex 6 to the Statement of Community Involvement adopted by the Council. (See also R (on the application of Kelly) v London Borough of Hounslow [2010] EWHC 1256 (Admin)).
77. In my view the Committee was perfectly entitled on the evidence before it to take the view that the marketing evidence did not raise any new points that necessitated consultation and refuse the application to adjourn the meeting. I accept the submission made by Mr Harwood and Mr Strachan that Mr Chauncy and the objectors had the opportunity to engage with the question of whether there had been sufficient marketing and to comment on employment opportunities and the loss of office space. They had time to take advice. I do not consider that there was any unfairness to objectors. Mr Chauncy, having become aware of the material three days prior to the Committee meeting, had sufficient opportunity to comment in correspondence and in his oral representations to members on the matters he raises in paragraph 21 of his witness statement (see para 70 above). Further, he had ample opportunity to place material in relation to the office market in Chiswick before the Council to show that there was a realistic prospect of the existing premises being re-let, if he had chosen to do so.
78. I reject the Claimant's contention that there was some procedural unfairness in the determination of the planning application.

Ground 5: heritage

79. The Site is partially located within the Turnham Green Conservation Area. As such, by virtue of section 72(1) of the Listed Buildings Act the Council is under a statutory duty to have special regard to the desirability of preserving or enhancing the character and appearance of that conservation area (see para 20 above).
80. Mr Kolinsky submits that the entirety of the Committee's analysis was predicated on the premise that demolition of Empire House was not proposed and accordingly the issue of enhancement was considered on that basis. It was said that it was not viable to remove Empire House, but the passages in the Officers' Report amount to mere assertion (see paras 7.20 and 7.31). There was no material before the Committee in relation to the costing of Empire House and the whole site.
81. Further Mr Kolinsky submits that duty can, in appropriate cases, require the planning authority to consider the heritage implications of refusing permission, as well as granting it. In support of this submission Mr Kolinsky relies on the decision in Heatherington (UK) Ltd v Secretary of State for the Environment (1995) 69 P&CR 374. Mr David Keene QC (as he then was) stated at pp.381-382 that:

"… While the opening words of section 66(1) [of the Listed Buildings Act] indicate the occasion when the duty arises, they cannot be seen, in my view, to confine the decision maker's attention to the effects of the development proposed, when considering the desirability of preserving the listed building, its setting or its features. In practice, that may often be all that is relevant. But sometimes there may be relevant effects from not granting permission, as in the present case, and those must fall within the duty to pay 'special regard' under that sub-section. The present case was one where the choice was not merely between the appellant's restoration scheme with office use and preservation of the status quo. It was one where the choice, as recognised on all sides, was between two alternative uses, either of which would have effects on the listed building's relevant features. The Inspector clearly paid special regard to the positive benefits, as compared to the existing situation, of the appellant's restoration proposals associated with office use. What remains to be determined is whether he paid special regard to the negative consequences of residential use, which was the alternative future for this part of No.48 Park Street."

82. The Officers' Report acknowledges that the Empire House tower is an obtrusive and incongruous element in the conservation area. Mr Kolinsky referred to the site allocations topic paper, which accompanies the emerging local plan, and expresses the Council's aspiration to remove Empire House, which "detracts from the character of the area", as it is "not deemed a suitable location for tall buildings". The Claimant's case is that the best means of enhancing the Turnham Green Conservation Area would be to secure the tower's removal. The emerging local plan represents a clear opportunity to facilitate and encourage this removal in a plan-led manner. That opportunity will be lost, it is said, if the Permission were granted.
83. The Officers' Report found that the Proposal enhanced the character and appearance of the Turnham Green Conservation Area only because "demolition is not proposed" (para 7.73), the implication being that demolition would be preferable in heritage terms to the implementation of the Proposal. Mr Kolinsky submits that the detriment in heritage terms of the lost opportunity was not recognised. This has resulted in the Council failing to discharge its s.72 duty.
84. The Council was well aware of the requirement under s.72 of the Listed Buildings Act to have special regard to the desirability of preserving or enhancing the character or appearance of the conservation area (see paras 7.46-7.74 of the Officers' Report). There is, Mr Harwood and Mr Strachan submit, no duty to enhance. Mr Harwood submits that what Mr Kolinsky's submission on s.72 amounts to is that there is a duty to maximise enhancement of the conservation area. Section 72 does not mean that.
85. In South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141 at 150-151 Lord Bridge stated:

"I can turn directly to the affirmative reasoning of the court in this case which is epitomised in the following passage from the judgment of Mann LJ [1991] 1 WLR 1322, 1326-1327:

'In seeking to resolve the issue I start with the obvious. First, that which is desirable is the preservation or enhancement of the character or appearance of the conservation area. Second, the statute does not in terms require that a development must perform a preserving or enhancing function. Such a requirement would have been a stringent one which many an inoffensive proposal would have been inherently incapable of satisfying. I turn to the words. Neither "preserving" nor "enhancing" is used in any meaning other than its ordinary English meaning. The court is not here concerned with enhancement, but the ordinary meaning of 'preserve' as a transitive verb is 'to keep safe from harm or injury; to keep in safety, save, take care of, guard': Oxford English Dictionary, 2^nd ed. (1989), vol.XII, p.404. In my judgment character or appearance can be said to be preserved where they are not harmed. … 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 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, it would surely have been expressed in very different language from that which the draftsman has used."

86. Heatherington (UK) Ltd concerned the relevance to the duty of a harmful fall-back, not of an allegedly better alternative (see p.381). Mr Harwood submits that since "preserve or enhance" are alternatives, and amount to a requirement of no harm, a failure to take a better option is not a breach of the duty. In any event, he submits, in the present case the fall-backs were the current use or the prior approval conversion, which involved the retention of the tower, rather than any other redevelopment. The present proposal would at the very least preserve the conservation area if not amount to an improvement (see Officers' Report, paras 1.2, 7.57, 7.63 and 7.73).
87. In any event, submits Mr Harwood, the site allocations topic paper to which reference was made by the Claimant is not part of the emerging local plan policies. It is a document produced as part of the evidence base for the emerging policy. It does not affect interpretation of the emerging policy. Mr Strachan submits that the Claimant also wrongly sought to rely upon the original text of the emerging local plan, whereas it had changed in October 2014 and March 2015 to identify the desirability of including some housing, in addition to the hotel, office and retail uses that were being suggested. The emerging policies do not now propose removal of the existing Empire House and its removal is not expressed as a policy aspiration in the emerging policies (see para 36 above and also chapter 12 of the submission draft Local Plan). The Officers' Report, Mr Harwood and Mr Strachan submit, provided a careful analysis of the emerging Local Plan policies (see para 36 above and also, for example, paragraphs 6.3, 6.4, 7.5, 7.15, 7.30, 7.31, 7.55 and 7.73).
88. There was reference in the oral discussions at the meeting to the aspiration to secure the removal of Empire House. Moreover the desire to see its removal was something that the objectors had placed before the Committee. I accept the submissions of Mr Harwood and Mr Strachan that it was a matter for the Council to attach such weight as it saw fit to these aspirations in the light of the effect of the development proposed. Redevelopment does not require demolition. In any event the site allocations topic paper is not part of emerging policy. As for the demolition of the tower not being viable, that was a matter for the Council to evaluate on the evidence and form a view.
89. I reject the Claimant's contention that the Council failed in its duties under section 72 of the Listed Buildings Act in respect of the Turnham Green Conservation Area.

Conclusion

90. I am persuaded by Mr Kolinsky that each of the grounds advanced is arguable. However in my judgment, for the reasons I have given, none of the grounds are made out. Accordingly this claim fails.