Town and country planning – Planning permission – Mixed-use development – Claimant applying for planning permission for construction of nine-storey mixed office and retail store – First defendant secretary of state calling in application – Planning inspector recommending grant of permission – First defendant refusing application – Claimant challenging decision – Whether first defendant misinterpreting policy – Adequate reasons given for rejecting inspector’s recommendations – Application granted
The claimant applied to the second defendant local planning authority for planning permission for development of a nine-storey new mixed office and retail store at the western end of Oxford Street, London.
The site was located in the Central Activity Zone (CAZ), as defined by the London Plan, which was part of the development plan for the purposes of section 38(6) of the Planning and Compulsory Purchase Act 2004.
The site was made up of three buildings: Orchard House (the main building on Oxford Street and Orchard Street), Neale House, and the extensions to 23 Orchard Street. The Grade II listed Selfridges store was on the other side of Orchard Street.
The proposal was for one building, with a two-floor basement, retail in the lower floors, and office above.
Planning officers recommended the grant of permission, and the planning committee voted to grant permission.
The first defendant secretary of state called the application in under section 77 of the Town and Country Planning Act 1990, which led to an inquiry before a senior planning inspector.
The inspector’s report recommended the grant of planning permission, but the first defendant determined to refuse the application.
The claimant applied to quash the decision to refuse planning permission pursuant to section 288 Town and Country Planning Act 1990. The third defendant was a principal objector to the proposed development.
Held: The application was granted.
(1) The first defendant had misinterpreted paragraph 152 of the National Planning Policy Framework (NPPF) when he stated that there should generally be a strong presumption in favour of repurposing and reusing buildings.
That was a clear case of interpretation not application of policy, and therefore the court was entitled to intervene. There was in paragraph 152 some encouragement for the reuse of buildings, but nothing that came close to a presumption.
The argument that paragraph 152 was seeking to achieve a radical reduction in carbon, so that a presumption of retaining buildings could be inferred ignored the rest of the paragraph which referred to a number of other very general policy aspirations.
There was nothing in the paragraph that supported the application of a policy presumption for one part of the paragraph alone.
The words of paragraph 152 did not rationally support any such approach: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 and St Modwen Development Ltd v Secretary of State for Communities and Local Government and others [2017] EWCA Civ 1643; [2017] PLSCS 196 considered.
(2) Where the secretary of state disagreed with his inspector, he had to explain fully and in sufficiently clear terms why he disagreed, but there was no heightened standard for reasons in such a case.
Whether the reasons given were proper, adequate and intelligible would always depend on the circumstances of the case and, where the secretary of state differed from his inspector, on the particular circumstances in which he did so.
The secretary of state did not have to give “reasons for his reasons”, but simply had to make sure that his decision letter showed why the appeal had the outcome that it did, bearing in mind that the parties to the appeal knew well what the issues were: Horada v Secretary of State for Communities and Local Government [2016] EWCA Civ 169; [2016] PLSCS 93; [2016] PTSR 1271 and Secretary of State for Communities and Local Government v Allen [2016] EWCA Civ 767; [2016] PLSCS 211 applied.
In the present case, the first defendant had failed to provide adequate reasons for his rejection of the inspector’s conclusions that there was no viable and deliverable alternative to the proposed redevelopment scheme.
There was strong development plan support for investment in retail and commercial in the CAZ.
The defendant was entitled to reach a different conclusion on alternatives and that would be a matter of planning judgment, not amenable to review by the court. However, the defendant failed to explain, within the requirements of Horada and Allen, why he disagreed with the inspector.
The inspector was a highly experienced planning inspector, who was a qualified architect. If the first defendant was going to disagree with his conclusion, then the developer was entitled to understand in clear terms what the basis for that disagreement was.
Otherwise, it was not possible to tell whether or not the first defendant was acting in a rational and lawful manner.
(3) As the first defendant had given significant weight to the benefits of the scheme, his failure to adequately explain his approach to the loss of those benefits on refusal of the application was palpable.
The reader was left in the position of understanding that the loss of the benefits would be highly material, but not understanding what the defendant’s reasons were for giving that loss so little weight.
On a principal important controversial issue, the defendant failed to grapple with the implications of refusal and the loss of the benefits and thus departure from important development plan policies.
(4) The inspector concluded that there would be significant harm from the loss of investment, and effectively the loss of a strong retail attraction, if permission was refused.
The first defendant disagreed and simply said he thought the harm would be limited. But he failed to explain why he reached that conclusion.
Given the evidence about the type of uses that might fill the existing building if the claimant left and the first defendant’s inability to conclude about the likelihood of an alternative scheme and the role of the store, the first defendant had to explain fully why he thought the harm would be limited.
However, he failed to provide adequate reasons for concluding that the harm to the vitality and viability of Oxford Street if the claimant’s scheme, or an alternative, were not delivered would be limited.
(5) The first defendant had also made an error of fact in his approach to “embodied carbon” utilised in the proposed development, and erred in his interpretation of the policy on carbon.
It was clear that the offsetting requirements in London Plan policy SI 2C “Minimising greenhouse gas emissions” were in relation to operational carbon, and not embodied carbon.
That was because the reference to the building regulations necessarily included a calculation based on the energy efficiency of the building in its operational phase, not the construction carbon impacts.
However, in the decision letter the first defendant appeared to have been confused on that point and assumed that the requirement for carbon offsetting applied to embodied carbon and not just operational carbon.
Russell Harris KC and Heather Sargent (instructed by Dentons UK and Middle East LLP) appeared for the claimant; Paul Shadarevian KC, Clare Parry and Jack Barber (instructed by Government Legal Department) appeared for the first defendant; The second defendant did not appear and was not represented; Matthew Fraser (instructed by Gunnercooke LLP) appeared for the third defendant.
Eileen O’Grady, barrister
