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
		30/03/2017

Mr Justice Collins:

1. This claim seeks to quash the decision by the Mayor of London on behalf of the defendant to designate Bromley Town Centre (BTC) as a Housing Zone (HZ). The decision was made on 17 March 2016. Permission to seek judicial review was granted by Wynn Williams J on an oral renewal which followed refusal on the papers by Supperstone J. Permission was granted on a ground raised in the claimant's reply to the defendant's and the interested party's summary grounds of defence. That alleged that the Mayor had misinterpreted his policy on the designation of HZs in his approach to whether such designation would deliver a minimum of 1000 houses.
2. In June 2014 the then Mayor issued a Prospectus dealing with HZs. The purpose was to boost housing supply in London by providing money from the defendant to individual Boroughs to "unlock and accelerate housing delivery and to build homes more affordable for working Londoners". Initially, there were to be 20 such HZs which did not include the BTC zone. That was included when the decision was taken in January 2016 to add a further 11 HZs. The basis for designation remained in all material particulars the same. As the introduction to the Prospectus made clear, what was required from a Borough which put in a bid for a HZ designation was that there would be a delivery of a minimum of 1000 homes each on a brownfield site. One important factor was that the Borough should offer what was called a 'something for something' deal, for example an undertaking to accelerate planning decisions relating to housing.
3. The Prospectus states what is required from a Borough if a HZ designation is sought. Thus it is necessary to determine what the Prospectus does require since its proper interpretation is a matter of law. But it is important to bear in mind that policy statements should not be subjected to the sort of analysis that may be appropriate when legislation or contractual provisions are being considered. Further, it is necessary to construe relevant requirements in the light of the purpose of the Prospectus, namely to increase the production and availability of housing in London.
4. The defendant accepts the need to comply with the relevant requirements of the Prospectus. The following paragraphs are particularly material:-

"11. Housing zones will work flexibly and will operate in different ways according to local circumstances so that the approach fits the specific needs of an area. Housing Zone designation could be used to unblock or kick-start development where it is stalled; it could be used to speed up delivery of homes that are already planned; or it could be used to bring forward new supply that would not otherwise have occurred. In any one Housing Zone any or all of these approaches could be applied…..

16. The primary aim of a HZ is the maximisation of new housing supply and all the policy tools should be geared to that core purpose. In this respect, they differ from many other regeneration or housing investment programmes which have been about the wider development of an area, or about improving existing stock, rather than increasing overall supply. HZ designation and investment must directly result in unlocked or accelerated housing supply…...

26. The Mayor will consider a range of criteria when assessing whether a potential location would be a viable Housing Zone. These are set out in detail in Part Five, along with the bidding process and bidding proforma. Fundamental to any successful bid for Housing Zone status will be a clear statement of the "something-for something" offer that will unlock development alongside a commitment from the borough and key partners to deliver the Housing Zone, including the financial and other resources the partners can contribute. Development will need to be already underway or ready to start and be able to be rapidly increased or accelerated. There needs to be a clear setting out of realistically deliverable infrastructure requirements and how these will deliver the increased housing output; and where the funding sought is from the repayable fund, there needs to be clarity on the certainty of the repayment profile.

27. In addition to the above, bids should include assessments of the additionality that Housing Zone intervention will create in terms of new homes. 'Additionality' in this context means either homes being built that would not otherwise have been, or the accelerated housing delivery that becomes deliverable. It will be important for bids to demonstrate clearly the effect that the Housing Zone intervention would have on housing supply so that assessments of the value of the intervention can be made. Each Housing Zone will be expected to deliver at least 1,000 homes……..

42. Whether or not the GLA provides active planning support, there would be an expectation that the borough would commit to ensuring that the planning process is organised to deliver timely consideration of planning applications through a commitment to a pre-application process, assurances on timetables, Planning Performance Agreements and clarity over s106 obligations which should be a straightforward as possible. Boroughs will also need to demonstrate that planning consents will be capable of speedy implementation, for example by ensuring that reserved matters and pre-commencement conditions agreed in advance. Where Housing Zones cross borough boundaries, the support could focus on bringing together different borough planning teams to ensure co-ordination of approach and decision making"

5. Paragraph 66 is particularly important. It comes in a section headed "The Bidding Process". It provides:-

"66. All bids will have to satisfy a number of requirements in order to be considered for designation as a Housing Zone as follows:

a. The London borough making a significant contribution through resources, management and powers, towards housing delivery as part of a 'something-for-something' deal;

b. Evidence that the proposed interventions will unlock or accelerate the quantum of housing outputs proposed;

c. Delivery of a significant level of new housing. The Mayor expects that Housing Zones will deliver a minimum of 1,000 homes."

In paragraph 67, it is said:-

"The Mayor's objective in Housing Zones is to boost housing supply, either through generating additional new homes or by greatly accelerating housing delivery."

6. The 1000 houses requirement in c. was restated in the Mayor's decision of 28 January 2016 to designate a further 11 HZs in paragraph 1.12 of that decision in these words:-

"A minimum threshold of 1000 new homes delivered across the Zone (an original requirement)."

The procedure adopted to evaluate a bid from a Borough was to review it first by what was called a Challenge Panel. It would then be tested by the Housing Investment Group. If it passed those, there would then be put to the Mayor a request for his decision to approve the bids. In this case, Bromley's bid was one of 11 then considered appropriate. In paragraph 2.11 of the request to the Mayor, Bromley's HZ was said to be expected to achieve a level of development within its Zone of 1,468 homes for which the GLA would provide £27,100,000. The issue in this claim is whether Bromley's bid did comply with the requirement that at least 1000 new homes would result from the HZ designation as set out in the Prospectus.

7. In the original claim form and statements both in amended grounds and grounds of defence, there was no agreement on what was needed in order to comply with the requirements of the Prospectus. The claimant's case before submission of counsel's skeleton argument was that the 1000 homes must be additional homes which would not have come forward without GLA funding. In his skeleton argument, Mr Parkinson submitted that the result of the HZ designation should be delivery of 1000 new homes which meant that there should be a connection between the designation and its interventions and the resulting delivery of 1000 new homes. The word 'interventions' follows the language of paragraph 66b. of the Prospectus and means such planning and policy actions as would be necessitated by the designation: see paragraph 65 of the Prospectus, which I do not need to cite. Mr Williams did not in his skeleton challenge Mr Parkinson's submission that there should be the connection, but added the proviso that 'connection' should not be construed restrictively or narrowly and that delivery of housing could be benefited either directly or indirectly. Examples of such benefit could be found in increased market confidence because of the designation, in the expedited planning process and in infrastructure funding. This could include for example improved access by highway works.
8. The key to Mr Williams' case, as developed in argument, was that, if the designation was likely to benefit delivery of homes, that sufficed to meet the 1000 new homes requirements. Mr Parkinson disputed this because in his submission it had to be shown that the designation would increase the delivery of new homes by unlocking or accelerating their number. It looked to the future and there must be at least 1000 new homes which needed designation in order to enable them to be delivered.
9. Bromley's bid for HZ designation was submitted in April 2015 and was considered by the Challenge Panel on 16 May 2015. It was stated that the bid would unlock and accelerate mixed use development in the Town Centre, which was the area to be covered by the HZ. In particular, it would, it was said, see the delivery of 1150 homes of which 35% were expected to be affordable. Without a HZ, it was said that there would be only 360 homes due to the complexity of the sites. There were included tables which showed the specific sites and numbers of homes on each, split between those to be available between 2015 and 2019 and those after 2019. The numbers given for units with HZ funding amounted to 1553. It is far from clear how the total of 1150 is calculated. It seems that two sites, identified as A around Bromley North Station and G west of the High Street would produce some 530 units. What are described as AAP opportunity sites add some 300. Further, there are an additional 320 which include C (Town Hall) and B (Tweedy Road) and a number of windfall sites. But 620 are said in the Panel's report not to need GLA intervention.
10. There are two tables which give the figures. The first table sets out under the heading 'Without Housing Zone Funding (units completed)' a total of 360 units comprising 200 in Site K (Westmoreland Road) and 160 in Site G. The second table identifies a total of 530 units on Sites A and G and a further 530 units on other identified sites together with windfall sites either to be identified or with existing planning permissions. Finally, there are the 300 under AAP Phase 3. AAP is the Bromley Town Centre Action Plan adopted in October 2010. The table has a column headed 'Direct/Indirect Link' which, in context, can only refer to a link with the HZ designation. Sites A and G have 'Direct' as do three other sites, C and B and one windfall site, totalling 170 units. For the remaining units, there is no entry in the Direct/Indirect column.
11. The Challenge Panel recommended a number of conditions which included a commitment to expedite planning decisions and to turn around all applications within 12 weeks. This was part of the 'something for something' obligation. It was also necessary to show that a number of the sites due for delivery had planning permission by July 2015. The modelling work from TFL due in the summer of 2015 dealing with improvements to the A21 had to show that "the full 1100 units can be built with the interim improvements". It seems that 1100 may be an error for 1150.
12. The Housing Investment Group met on 5 December 2015. In dealing with the LBB bid, the executive summary stated:-

"The Housing Zone proposal is a long term regeneration which has the potential to unlock assets to deliver 1510 homes by 2020 including 320 by 2018."

The reference to 'unlocking assets' seems obvious since the designation must unlock or accelerate the housing development. But, it is accepted that the figure of 1510 was not correct and should read 1150. There then followed a table which replicated that in the Challenge Report, save that the 'Direct' inclusion in the Direct/Indirect column which had included 50 of the 100 windfall sites was omitted. Paragraph 1.4 dealing largely with road improvements provided:-

"The original funding ask in October 2014 was £47.5m of which £32.5m was grant and almost half for road improvements on the A21. These were not supported by TFL and could not clearly be limited to housing outputs. The transport element has therefore been reduced for key junction improvements directly limited to Site G and the overall grant….will be conditional on achieving the 35% affordable housing committed to in the bid."

13. There is what may seem a gloss on this in paragraph 1.14 which states that modelling work for TFL proved the need for improvements to the A21 and that a guarantee could be given that the full 1100 units could be built with the interim improvements. The paragraph continues:-

"TFL corridor work is well underway and supports the removal of the A21 widening from the proposal as TFL do not consider this necessary. TFL have confirmed the minor junction improvements are acceptable to help bring forward Site G development."

It is not said that, apart from the work to assist Site G, GLA money was required to fund work being done by TFL.

14. The report deals with the 620 units on the further opportunity sites. It repeats in paragraph 3.10 that they do not need GLA intervention but, it is said, they would "add to the number of new homes being delivered within the Housing Zone". The paragraph concludes, after identifying the various sites and the number of units to be provided in each, as follows:-

"320 of these sites are due for delivery by 2018. 174 are now consented new build and 84 office to residential are underway."

15. In relation to Site A, paragraph 3.8 stated that a viability assessment had identified the high cost of the enabling infrastructure required on the A21 as a restraint. GLA funding was needed to support an upgraded transport interchange including a relocated bus station and a new rail station office. Site G had run into difficulties because of the failure of market options to enable the development to proceed. Thus it was shown that the HZ designation would enable the units on Sites A and G to go ahead. Since the remaining 620 units on the other sites are said not to need GLA intervention, it is submitted by Mr Parkinson that they could not properly be included in the minimum 1000 which was required in order to qualify for a HZ designation.
16. In paragraph 3.11 dealing with the 620 units, the report states that a key issue on the interdependencies between the schemes and the Housing Zone as a whole will be the enabling infrastructure required on the A21. The paragraph continues:-

"LB Bromley is looking for the delivery of capacity enhancements to improve access to the town centre for public transport and general traffic. In April 2015, TFL commenced a corridor study to examine potential measures to improve capacity along the routes to/from the town centre and is due to report in the Autumn of 2015. LB Bromley's housing bid talks in further detail about some of the measures, and provides some cost estimates for the measures."

Since the report follows a meeting held on 5 December 2015, the references to a report being due in the Autumn of 2015 makes little sense. In paragraph 1.14 which I have already cited, TFL's report is referred to and that paragraph does not support any need for GLA funding to enable housing development in any of the sites other than A and G to proceed.

17. Paragraph 3.16 deals with LBB's commitment to affordable housing. It records that in March 2015 LBB approved an allocation of a redacted sum to allow additional affordable units to be delivered on opportunity sites "particularly where schemes are restrained by debility from delivering a policy compliant level of affordable housing". No doubt that could unlock or accelerate development on particular sites, but nowhere is there an indication that any of the 620 sites need HZ designation for that purpose. It would be inconsistent with the clear statement that none of the sites needed GLA intervention.
18. The 11 additional bids including that from LBB were put to the Mayor for his approval which was given on 17 March 2016. In the detailed consideration of the LBB bid, the executive summary recorded that the HZ proposal was a long term regeneration proposal which had the potential to unlock assets to deliver 1510 homes by 2020. That follows the Housing Investment Group's wording. It is on any view misleading since it does not accord with the previous figures and is in any event erroneous since to comply with the minimum of 1000 new homes to enable HZ designation to be granted it was accepted that the correct figure was 1150. But the figure of 1510 is identified in the details where it is said:-

"The HZ would create around 1510 new homes of which 35% would be affordable."

19. It is said that the HZ interventions would assist to facilitate and accelerate the process of development of the town centre bringing advantages both for visitors and residents. That may well be so, but in order to qualify for HZ designation it is necessary to establish that at least 1000 homes need the designation and the GLA funding that would come with it in order to accelerate or unlock the development for which planning permission may already have been granted. Indeed, following the Challenge Report, LBB had been encouraged to and had granted a number of planning permissions, but only those specifically identified as direct beneficiaries could meet the requirement. That certainly seems to me to be the natural reading of what the Prospectus requires.
20. There has been produced a witness statement from Ms Juman who is the Senior Area Manager South in Housing and Land Directorate for the GLA. She was involved in the assessment of the LBB bid at all stages. Mr Parkinson has objected to the defendant's reliance on her statement in that, he submits, it is an attempt to rewrite the decision. Certainly, the reasons put to the Mayor for approving the bid cannot be supplemented or explained in a way which is not in accordance with what he was then told.
21. In paragraph 17, she says that where the Direct/Indirect column in the tables was left blank, it indicated an indirect link. That is, I am afraid, not acceptable. It is impossible to follow the point of heading the column 'Direct/Indirect' unless, if there is a link, its nature is to be stated. Leaving blank on any sensible construction must convey the information that there is no link, either direct or indirect. It is accepted that no link was shown in relation to 360 units in sites G and K so that the figure of 1510 was reduced to 1150. It is impossible to see any link with the 84 office to residential which were underway (paragraph 3.10 of the Housing Investment Group report). In addition, there is no suggestion made in that report that the 174 which were "consented new build" required the HZ designation to enable them to proceed. Thus, without consideration of the 620 which were said not to need GLA intervention, the minimum of 1000 is not reached.
22. Ms Juman seeks to rely on the A21 improvements citing somewhat extraordinarily in a statement made on 11 October 2016 the TFL corridor study which, she says was due to report in the summer of 2015. I have already dealt with that. She also refers to LBB's approval for funding to achieve the 35% affordable housing. Under the heading 'Expedited and improved decision making and GLA involvement' she says in paragraph 30:-

"The Further Opportunity sites will benefit from the improved and expedited development control processes in Bromley. Indeed, [LBB] granted permission for Site C (Town Hall) in November 2015. Moreover the preparatory work leading up to the designation of the Housing Zone contributed directly to this."

Preparatory work done in order to achieve the designation cannot meet the minimum 1000 home requirement unless it can be shown that any permissions granted on developments expected will need the designation either to unlock or to accelerate them.

23. The language of the Prospectus is in my view clear. The advantages of the HZ designation to which Ms Juman refers are certainly of importance and will clearly be a relevant consideration. Paragraph 66 of the Prospectus requires in b. evidence that the proposed interventions will "unlock or accelerate the quantum of housing outputs proposed". Those outputs are set out in the details, namely the total of 1510. Condition c., which refers to the 1000 minimum, must in context mean that it has to be shown that at least 1000 of those outputs will be unlocked or accelerated by the designation. It is clear that only sites A and G needed the interventions or the GLA funding. I am afraid I cannot accept the arguments based on Ms Juman's evidence that it is sufficient to show that there would be advantages when the designation was granted. The need for it to be shown that there are developments for a minimum of 1000 units which require designation to unlock or accelerate them is clear. This is understandable since no doubt there would have been a number of competing applications and the amounts of money payable by the GLA are significant.
24. It follows that for the reasons I have set out I cannot accept Mr Williams' submissions. The documentation provided by the Mayor was regrettably somewhat misleading in that the 1510 figure (or 1486, wherever that came from) was put forward, albeit there was a subsequent reference to 1150. But, as I have said, the natural meaning of the Prospectus is in my judgment clear and means what Mr Parkinson submits it means.
25. I would only add that it is not suggested that the claimant did not have standing to pursue this claim. It is involved in the promotion of land for housing development in inter alia LBB and asserts that the designation on the basis of the development proposals put forward by the LBB will prejudice it.
26. In the circumstances, the Mayor's decision to designate the Housing Zone in accordance with the LBB application must be quashed. I will hear counsel on the precise nature of any relief and ancillary orders.