QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
WORKING TITLE FILMS LIMITED
|- and -
|WESTMINSTER CITY COUNCIL
MOXON STREET RESIDENTIAL (LUXEMBOURG) SARL
Saira Kabir Sheikh QC and Charles Streeten (instructed by Tri Borough Shared Legal Services) for the Defendant
Russell Harris QC and Richard Turney (instructed by Linklaters LLP, Solicitors of London) for the Interested Party
Hearing dates: 28th June 2016
Crown Copyright ©
GILBART J :
|WCC||Westminster City Council (Defendant)|
|WTF||Working Title Films Ltd (Claimant)|
|MSR||Moxon Street Residential etc (Interested Party)|
|TCPA 1990||Town and Country Planning Act 1990|
|PCPA 2004||Planning and Compulsory Purchase Act 2004|
|CILR 2010||Community Infrastructure Levy Regulations 2010|
"the erection of a building including excavation works to provide three basement storeys and six above ground storeys for mixed use purposes including up to 79 residential units, retail shops, restaurants, multi-purpose community hall, community space, cycle and car parking, servicing, landscaping, plant and other works"
on a site known as the Moxon Street car park in Marylebone.
(b) The proposed development, the objections and the Planning Officer's Report
" As previously mentioned there is no specific policy requirement to provide the market (although it is an aspiration of the planning brief) and so the solution proposed is considered to be an imaginative way to retain the facility and at the same time achieve a wider community benefit in the form of a multi-purpose hall available for other community groups outside of market days. The hall would be leased at a peppercorn rent to the City Council who would manage it, thereby ensuring its continued availability for market use. The City Council would facilitate a programme for using the space which would be licensed for cultural, enterprise and arts events, funded by the rents received but run on a not for profit basis."
It went on to identify WCC City Plan Policy S 34 as encouraging such a proposal.
"the proposed scheme provides 3411 m2 of affordable housing which is 27% of the total residential floorspace. The applicant's argument for providing less than the policy compliant amount is that the scheme also provides an amount of social and community provision which is in excess of that required by planning policy but which is provided in order to meet more of the other aspirations of the planning brief. In particular a community hall is being …included which is being given to the City Council as a peppercorn rent and which will secure the continuation of the farmer's Market as well as providing for other community purposes. It is accepted that the social and community provision of this site is exceptionally high…….and in normal circumstances the provision of a GPs surgery and a health club would be sufficient provision, and that the community hall is therefore an added benefit.
It is also considered that the provision of a public car park only 20 spaces short of its current capacity when the planning brief only required 'some pay and display' replacement spaces is also an added benefit to the continued wellbeing of the District Centre.
It is therefore accepted that the level of social and community uses and public car parking significantly enhances the development.
The applicant's submitted viability study states that the full amount of affordable housing cannot be achieved because of the cost of providing the community hall and replacement public car parking. For economic viability reasons these would have to be removed from the scheme in order to achieve 35% affordable housing. The applicant's viability study has been reviewed by an independent consultant appointed by the City Council who agrees with these conclusions. It is considered that in these circumstances it is more beneficial for the scheme to provide the community hall and replacement car public car park balanced against a reduced amount of affordable housing in order to provide a better overall development."
"For reasons outlined elsewhere in this report, a 106 legal agreement will be required to secure the following:
- Provision of 25 affordable housing units on the site and control of rental levels attached thereto.
- The provision of the proposed community hall to the City Council at a peppercorn rent"
(Only those provisions of relevance to the claim are included)
(c) The planning permission and the s 106 agreement
i) an obligation not to occupy more than 50% of the market housing units (i.e. the 54 units which were not affordable housing units) until the 25 affordable housing units had been completed, made ready for occupation, and transferred into the ownership of a Registered Provider approved by the WCC Director of Housing;
ii) an obligation to lease the community hall within the scheme to WCC at a peppercorn rent in accordance with the 'Community hall specification,' and other reasonable terms to be agreed. The community hall was to be provided, fitted out, prior to first occupation of a residential unit, and leased for 125 years for "social and community use" which was defined as " the provision of social and community facilities to serve the needs of local communities and others provided by the City Council or a local service provider or which are funded by a government department or a public body or voluntary sector with in Class D1 and/or Class D2 of the Town and Country Planning (Use Classes) Order 1987." That specification also identified the degree of fitting out required for handover.
"Class D1. Non-residential institutions
Any use not including a residential use —(a) for the provision of any medical or health services except the use of premises attached to the residence of the consultant or practioner,(b) as a crêche, day nursery or day centre,(c) for the provision of education,(d) for the display of works of art (otherwise than for sale or hire),(e) as a museum,(f) as a public library or public reading room,(g) as a public hall or exhibition hall,(h) for, or in connection with, public worship or religious instruction.
Class D2. Assembly and leisure
Use as —(a) a cinema,(b) a concert hall,(c) a bingo hall or casino,(d) a dance hall,(e) a swimming bath, skating rink, gymnasium or area for other indoor or outdoor sports or recreations, not involving motorised vehicles or firearms."
(d) The challenge by WTF
(1) This regulation applies where a relevant determination is made which results in planning permission being granted for development.
(2) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—
a) necessary to make the development acceptable in planning terms;
b) directly related to the development; and
c) fairly and reasonably related in scale and kind to the development."
"Regulation 122 can be seen in part as a codification of principles developed in the case law."
"Regulation 122 can be seen as part of a codification of principles developed in the case law."
With respect, that is what it was not. It is in part, but it includes matters which were drawn from previous tests of policy, which had been expressly rejected by the Courts as tests in law of materiality.