QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Deputy High Court Judge)
| R (on the application of HOLBORN STUDIOS LIMITED)
|- and -
|THE COUNCIL OF THE LONDON BOROUGH OF HACKNEY
|- and -
|GHL (EAGLE WHARF ROAD) LIMITED
|R (on the application of Del BRENNER)
|- and -
|THE COUNCIL OF THE LONDON BOROUGH OF HACKNEY
|- and -
|GHL (EAGLE WHARF ROAD) LIMITED
Jessica Elliot (instructed by Shakespeare Martineau) for the Claimant (Del Brenner)
Nicholas Ostrowski (instructed by the Solicitor to Hackney Borough Council) for the Defendant
Robert Walton (instructed by Richard Max & Co) for the Interested Party
Hearing dates: 25 and 26 October 2017
Crown Copyright ©
John Howell QC :
The Relevant Legal Framework
"....an application for planning permission must—
(a) be made in writing to the local planning authority on a form published by the Secretary of State (or a form to substantially the same effect);
(b) include the particulars specified or referred to in the form;
(c) except where the application is made pursuant to section 73 (determination of applications to develop land without conditions previously attached)...., be accompanied, whether electronically or otherwise, by—
(i) a plan which identifies the land to which the application relates;(ii) any other plans, drawings and information necessary to describe the development which is the subject of the application;..."
"A design and access statement must—
(a) explain the design principles and concepts that have been applied to the development;
(b) demonstrate the steps taken to appraise the context of the development and how the design of the development takes that context into account;
(c) explain the policy adopted as to access, and how policies relating to access in relevant local development documents have been taken into account;
(d) state what, if any, consultation has been undertaken on issues relating to access to the development and what account has been taken of the outcome of any such consultation; and
(e) explain how any specific issues which might affect access to the development have been addressed."
"(1) This section applies to any application in respect of which this Act or any provision made under it imposes a requirement as to–
(a) the form or manner in which the application must be made;
(b) the form or content of any document or other matter which accompanies the application.
(2) The local planning authority must not entertain such an application if it fails to comply with the requirement."
"(4).......the application must be publicised in accordance with the requirements in paragraph (7) and by giving requisite notice—
(i) by site display in at least one place on or near the land to which the application relates for not less than 21 days; or(ii) by serving the notice on any adjoining owner or occupier; and
(b) by publication of the notice in a newspaper circulating in the locality in which the land to which the application relates is situated.
(7) the following information must be published on a website maintained by the local planning authority—
(a) the address or location of the proposed development;
(b) a description of the proposed development;
(c) the date by which any representations about the application must be made, which must not be before the last day of the period of 14 days...beginning with the date on which the information is published;
(d) where and when the application may be inspected;
(e) how representations may be made about the application..."
"A local planning authority shall not entertain an application for planning permission....unless any requirements imposed by virtue of this section have been satisfied."
"(1) Where an application is made to a local planning authority for planning permission—
(a) ......they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or
(b) they may refuse planning permission.
(2) In dealing with an application for planning permission....the authority shall have regard to—
(a) the provisions of the development plan, so far as material to the application,
... ....; and
(c) any other material considerations."
(3) Subsection (1) has effect subject to section 65 and to the following provisions of this Act, [and] to sections 66, 67, 72 and 73 of the Planning (Listed Buildings and Conservation Areas) Act 1990."
"Hackney's website contains details of all applications including copies of all associated documents and drawings."
"Comments are kept on the planning file....Once submitted to the Council, letters of objection or support become public documents which other interested parties are entitled to inspect."
"The Council may negotiate with the applicant to revise a scheme so that it is acceptable in policy terms. Changes may be made to resolve objections. In these cases there is no legal requirement to re-consult stakeholders, although the Council may re-advertise and re-consult for a 14 day period."
"The comments that you have sent into the Planning Service will be summarised in the report to the Planning Sub-Committee. New comments cannot be raised at the meeting. Only in exceptional cases will the Planning Sub-Committee consider additional comments submitted after publication of the agenda."
The Factual Background
"we are however confident that the commercial floorspace is fit for purpose as the Applicant has in fact been approached by other film/photographic studio occupiers who have identified the proposed space as being wholly appropriate for their needs, and who have confirmed they would be interested in occupying the space should the existing occupier see the need to vacate - please see letters at Enclosure 2 to this letter.....it is considered that the commercial space provided on the site is wholly suitable for use as evidenced by interest from other parties."
"6.3.7 DM 16 requires 10% of new commercial floorspace to be affordable....Though general concern has been raised by the existing occupiers, Holborn Studios, the applicant has provided adequate evidence that the new floor space is suitable for the creative industries, with the proposed basement level accommodation specifically tailored towards meeting the needs of either the existing occupier, or an alternative film / photographic studio tenant."
"6.5.2 The proposed basement and a portion of the ground floor within the south eastern corner would be targeted specifically towards use as photographic / film studio related uses while the remaining floorspace would be for a more general B1 office related employment use. Policy DM15 requires all new commercial floorspace to be of a high quality with good access to natural light and that it should incorporate a range of unit sizes and types and be suitable for subdivision flexibility.
6.5.3 At basement level, the studio space has been designed with a 5m high ceiling height and with limited access to natural light in an effort to purposefully design this for the intended film / photographic use which currently operates at the site. Despite this, Holborn Studios (the existing occupier) have objected to the proposals for a number of reason, one of which relates to the quality of this studio space. More specifically Holborn Studios consider that the studio space is not acceptable for the intended film and photographic use given the insufficient height, location of structural poles and general sizes of the studios (among others). In response to this, the applicant has provided letters of interest from two photographic / film studios, both of which state that the proposed studio spaces are workable and that the layout is acceptable. As such, while Holborn Studios objections are acknowledged, the letters of interest provided suggest that the studio space is of a quality which would support the retention of the existing photographic / film studios use on the site. The quality of the proposed studio floorspace is therefore considered to be acceptable as it would appear to lend itself to the retention of the existing photographic / film studios use (even if through a different occupier).
6.5.5 As a result of the above, the quality of the commercial accommodation is considered to be acceptable and compliant with policy DM15."
"5.5 In response to concerns raised by the objectors regarding the Supreme Court ruling, the Planning Officer stated that an amendment to the scheme had been submitted in May 2015, requesting a change of use from residential to commercial floor space. The Planning Officer advised that not all revisions to an application required re-consultation and it was considered that the proposed revisions would not cause any significant adverse impacts and would create a positive change, with additional employment space provided.
5.6 Discussion took place surrounding the proposed employment space and it was explained that the levels would be safeguarded by policy and should increase as a result of providing more open and flexible uses.
5.7 Discussion took place regarding issues surrounding the columns, as raised by the objectors. In response, it was explained that the transfer slab would only be used in the plant room with 3 columns, allowing the provision of open plan workspaces.
5.8 In response to a question regarding the lack of affordable housing provision, it was explained that the scheme had been subject to a viability assessment and it was considered acceptable given the level of affordable workspace being provided.
5.9 Discussion took place surrounding the drive access to the site and it was explained that there would be a lift provided in order to access the basement areas, with a width of 5m. The objectors stated that they would require a minimum width of 6m in order to access these areas. In response, the applicants stated that they had sought assurances from other studios who confirmed that a 5m width lift would be adequate for this type of use."
Whether further consultation was required given the amendments made to the 2015 application in May 2016
(ii) In what circumstances planning permission may be granted for a development other than that for which an application was initially made and the test or tests which the court should apply when reviewing the legality of the grant of such a permission
"I should add a rider. The true test is, I feel sure, that accepted by both counsel: is the effect of the conditional planning permission to allow development that is in substance not that which was applied for? Of course, in deciding whether or not there is a substantial difference the local planning authority or the Secretary of State will be exercising a judgment, and a judgment with which the courts will not ordinarily interfere unless it is manifestly unreasonably exercised. The main, but not the only, criterion on which that judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation, and I use these words to cover all the matters of this kind with which Part III of the Act of 1971 deals.
There may, of course, be, in addition, purely planning reasons for concluding that a change makes a substantial difference."
(iii) Whether it was unlawful for the Council not to have re-consulted generally given the amendments made in May 2016 to the 2015 application
"the Planning Officer stated that an amendment to the scheme had been submitted in May 2015, requesting a change of use from residential to commercial floor space. The Planning Officer advised that not all revisions to an application required re-consultation and it was considered that the proposed revisions would not cause any significant adverse impacts and would create a positive change, with additional employment space provided."
(iv) Whether Holborn Studios should have been notified of, and consulted on the amendments in May 2016, whether the meeting of the Planning Sub-Committee should have been adjourned to enable them to consider the revised basement plans and whether they were deprived of the opportunity of making such representations as they might have wanted to make
"the applicant has provided adequate evidence that the new floor space is suitable for the creative industries, with the proposed basement level accommodation specifically tailored towards meeting the needs of either the existing occupier, or an alternative film / photographic studio tenant."
(v) Whether Mr Brenner was unable to make any representations that he might have wanted to make had the amendments been the subject of consultation
(vi) Whether the Claimants have suffered any material prejudice
"it would of course be unrealistic not to accept that it is certainly probable that, if the representations [which the local authorities concerned had not been given an opportunity to make] had been listened to by the Secretary of State, he would nevertheless have adhered to his policy. However, we are not satisfied that such a result must inevitably have followed....It would in our view be wrong for this court to speculate as to how the Secretary of State would have exercised his discretion if he had heard the representations. We respectfully adopt the words of Megarry J. in John v Rees  Ch. 345 , when he said, at p. 402:
"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."
As Professor Wade points out in his Administrative Law. 4th ed., p. 455, the report of Ridge v. Baldwin  AC 40, 47, records that the hearing later given to the Chief Constable's solicitor at least induced three members of the Watch Committee to change their mind. Thus, even if the ultimate outcome of our decision were to be that the Secretary of State, having fairly considered the applicants' representations, nevertheless decides to abate their rate support grants, we are not prepared to hold that it would have been a useless formality for the Secretary of State to have listened to the representations. The importance of the principles to which we have referred to above far transcend the significance of this case. If our decision is inconvenient, it cannot be helped. Convenience and justice are often not on speaking terms: per Lord Atkin in General Medical Council v. Spackman  A.C. 627, 638."
The other grounds on which Mr Brenner seeks judicial review
"The proposals… improve public access to the canal side by increasing levels of amenity space (including space which is publically accessible during the day) to the canal side. The landscaping (details to be secured through a condition) would provide for improved levels of vegetation at the site with a number of large trees, all of which would contribute positively toward the green link / corridor along the canal. Further to this, a contribution of £35,000 has been agreed to fund improvements works by the Canal and Rivers Trust to the towpath." 
"6.4.20 The proposals respond positively to earlier concerns by retaining and sympathetically refurbishing the buildings of key heritage interest and bringing forward new build elements of an appropriate scale and massing, which form a strong built edge on Eagle Wharf Road and maintain an appropriate distance with the retained buildings.
6.4.21 Whilst there is some harm caused by the proximity of the new build elements to the retained chimney and removal of ad hoc structures around its base, this harm is considered to be less than substantial. In accordance with paragraph 133 of the National Planning Policy Framework, the Council must decide on balance if the harm is outweighed by the significant regeneration benefits of fully restoring the retained heritage buildings, improving public access to the canal and securing high quality housing provision.
6.4.22 The proposed architecture of the new build elements is well composed, with gridded elevations and a high quality, restrained palette of materials that complement the retained heritage buildings. The proposals are well laid out and single aspect units have been kept to a minimum. The proposals are considered to enhance the character and appearance of the Regents Canal conservation area."
Section 31(2A) of the Senior Courts Act 1981
"(2A) The High Court—
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award [of damages, restitution or recovery of a sum due] under subsection (4) on such an application,
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest."
Note 1 I was informed by counsel that, at some unspecified date after they had been submitted, the applicant claimed that they had been submitted in confidence. There is, however, no evidence of any such conversation or letter making the claim. [Back] Note 3 These difficulties are amplified when the decision on whether or not to require re-consultation and the ultimate decision are taken by different persons. In that case officers, for example, may be trying to predict, not whether what might emerge might influence them, but rather whether what might emerge might influence others who have not hitherto considered the application. [Back] Note 4 Approaching the matter in this way was assumes that the Claimants must show that they have themselves been personally prejudiced. That may be so if their complaint merely concerned unfairness that they had themselves suffered or if the necessary standing to make a complaint was that they had to be a person aggrieved by the decision. However what both Claimants also impugn is the failure to re-consult the public on the amendments to the 2015 application. All that they require to have standing to make that complaint is a sufficient interest. It may be that it would be sufficient for them to show that they were members of the relevant public (to establish their standing) and that that public had been materially prejudiced, even if they personally had not been. That is not, however, a matter that was canvassed in argument or is necessary to decide in this case. [Back]
Note 1 I was informed by counsel that, at some unspecified date after they had been submitted, the applicant claimed that they had been submitted in confidence. There is, however, no evidence of any such conversation or letter making the claim. [Back]
Note 3 These difficulties are amplified when the decision on whether or not to require re-consultation and the ultimate decision are taken by different persons. In that case officers, for example, may be trying to predict, not whether what might emerge might influence them, but rather whether what might emerge might influence others who have not hitherto considered the application. [Back]
Note 4 Approaching the matter in this way was assumes that the Claimants must show that they have themselves been personally prejudiced. That may be so if their complaint merely concerned unfairness that they had themselves suffered or if the necessary standing to make a complaint was that they had to be a person aggrieved by the decision. However what both Claimants also impugn is the failure to re-consult the public on the amendments to the 2015 application. All that they require to have standing to make that complaint is a sufficient interest. It may be that it would be sufficient for them to show that they were members of the relevant public (to establish their standing) and that that public had been materially prejudiced, even if they personally had not been. That is not, however, a matter that was canvassed in argument or is necessary to decide in this case. [Back]