Town and country planning – Planning document – Defendant local authorities redeveloping area around Earl’s Court and West Kensington – Claimant tenant and resident associations challenging validity of opportunity area joint supplementary planning document (SPD) – Whether defendants erring in approach to preparation of SPD – Application granted in part
Major development was planned in Earl’s Court, West London. A large area of land and buildings was proposed for regeneration. Within it were the exhibition centre and two housing estates. The claimant resident associations together represent about 1,700 people who lived in the estates. They were opposed to any project that would involve the estates being redeveloped and challenged the Earl’s Court and West Kensington Opportunity Area Joint Supplementary Planning Document (“SPD”), which was adopted by the defendant local authorities in March 2012. They also objected to the proposals of the first interested party developer for development including the demolition of the estates and the construction of new housing, as well as other uses. The second interested party, Transport for London, took no part in the proceedings brought by the claimants seeking judicial review of the SPD, but the Mayor of London, on behalf of the third interested party, the Greater London Authority indicated his intention to adopt the SPD as supplementary planning guidance, but awaited the outcome for the claimants’ application before doing so.
The claimants contended that: (i) the SPD ought to have been prepared as an area action plan under regulation 6 of the Town and Country Planning (Local Development) (England) Regulations 2004; (ii) that when the defendants adopted the SPD they had erred in their approach to the provision of affordable housing and, in particular, in the use they made of a study of economic considerations, the “Estates Regeneration Economic Appraisal” (“EREA”); (iii) that the SPD did not conform with the development plan in its provisions for social housing; and (iv) that the SPD ought to have been subject to strategic environmental assessment (“SEA”) complying fully with the regime for SEA, but was not.
Held: The application was granted in part.
(1) On the true construction of regulation 6(2)(a) and (4) of the 2004 Regulations, it had plainly been the intention of the defendants that the requirement for the document in question to identify an area of significant change if it was to be an area action plan could not be fulfilled if the area had already been identified as such in the development plan. The concept of identification meant establishing the identity of the significant change but did not extend to the duplication or reflection of that process in a subsequent document. When the defendants had adopted the SPD, the development plan process had already achieved the identification of the relevant area of significant change. The identification of the opportunity area or the housing estates as an area of significant change had occurred in the development plan. Therefore, the SPD was a supplementary planning document and not an area action plan and the defendants could not be said to have acted irrationally since they had not set out to produce an area action plan. The defendants had not been obliged to produce an area action plan for the opportunity area, or any part of it and the SPD had done what it had been meant to do, in that it had provided guidance supplementary to the development plan without usurping the role of the plan. Not only did the defendants have the power to produce a supplementary planning document for the opportunity area, the Mayor for his part was entitled to produce supplementary planning guidance for the London Plan, and to do so in the form of the SPD: R (on the application of Wakil) v Hammersmith & Fulham London Borough Council [2012] EWHC 1411 (QB) distinguished.
(2) The defendants had not erred in their approach to the provision of affordable housing. There was no reason why the economic advantages of the favoured option for the regeneration of the opportunity area should not have influenced the supplementary guidance for those policies. The balancing of economic, social and environmental considerations, with the aid of relevant policy and guidance, was the business of development control. It was a matter for the judgment of the decision-maker when firm proposals had been submitted for planning permission. The flexibility inherent in the development plan policies for affordable housing could not be ignored. Those policies put the onus on a developer to satisfy the decision-maker that his project would not be worth his while if more affordable housing had to be provided as well as any other benefits or infrastructure whose cost he was expected to bear: Cran v Camden London Borough Council [1995] RTR 346 and R (on the application of Cathco Property Holdings Ltd) v Gwynedd Council [2008] EWHC 1462 (Admin); [2008] PLSCS 161 considered.
(3) The guidance in the SPD relating to housing, affordable housing, and social rented housing was wholly consistent with the policies of the London Plan and first defendants’ core strategy. Nor was there any conflict between the SPD and the equivalent provisions for housing and affordable housing in the second defendants’ core strategy. The policies of the development plan aligned with each other and the principles and guidance in the SPD aligned with them. The SPD was not a development plan document and so regulation 13(5) did not apply to it. In any event, there would be no breach of that regulation because the SPD did not “[contain] a policy that is intended to supersede another policy”. The claimants had not exposed anything unlawful in the relationship between the SPD and the provisions of the development plan for social housing, or in the provisions of the SPD itself.
(4) On the evidence, SEA had been undertaken both for the core strategies and for the SPD. The SEA conducted for the SPD had been an adequate and lawful assessment sufficient to complement the SEA undertaken for the London Plan and the core strategies. However, there was a defect in its approach to the statutory requirements, in that there was no single, compendious statement gathering all of the particulars specified in the SPD. Although that defect was not such as to lead to an order to quash, the claim would succeed to the extent of requiring the defendants to issue a statement complying with the requirements of the SEA: R (on the application of Richardson) v North Yorkshire County Council [2003] EWCA Civ 1860 and R (on the application of Edwards) v Environment Agency [2009] Env LR 34 considered.
Gregory Jones QC and Sarah Sackman (instructed by Pdc Legal) appeared for the claimants; Russell Harris QC and Richard Turney (instructed by the Solicitor to the London Borough of Hammersmith and Fulham and the Chief Solicitor to the Royal Borough of Kensington and Chelsea) appeared for the defendants; Christopher Katkowski QC and Scott Lyness (instructed by Pinsent Masons LLP) appeared for the first interested party; David Elvin QC (instructed by Ashurst LLP) appeared for the third interested party.
Eileen O’Grady, barrister
