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On 14 January 2020 the still relatively newly appointed Secretary of State for Housing, Communities and Local Government issued his decision on an appeal relating to the Westferry Printworks site (reference APP/E5900/W/19/3225474) (“the Decision”). Practitioners get very excited about Secretary of State housing decisions where appeals have been recovered or planning applications called-in. Do they indicate a new direction of travel on the application of policy or guidance or the weight which will be attached to material considerations in the planning balance? Is there anything we as advisers can take from the decision which will be helpful in helping to secure planning permission on other sites? It is also intriguing when one discovers that planning permission was granted on the site for a smaller scheme by the current Prime Minister when he was London Mayor.
The appeal was submitted on the ground of non-determination for a residential led mixed-use development including 1,524 units and was recovered for decision by the Secretary of State. The speed from submission of application (July 2018) to recovery (April 2019), to inquiry (August 2019) and determination (January 2020) demonstrates this was a decision processed very quickly by the system.
Tower Hamlets Council has reacted with fury to the decision. It appears clear from background documents that they felt under acute pressure because of the speed with which they had to pull their evidence together to meet deadlines. Although it is very clear that the scheme was not supported by the Council from a planning perspective, the key concern appears to be related to the fact that the decision was made just three days before the Council’s CIL charging schedule took effect, costing the Council an estimated £50m in CIL monies. Mayor John Biggs called the Decision “… a scandal and outrageous” and threatened legal proceedings.
Unsurprisingly, within the past couple of weeks it has become clear that Tower Hamlets have sought leave to challenge a decision they consider was “biased and favoured the developer” in the Courts.
The Decision itself follows the now formulaic approach of setting out the statutory framework in which the Decision should be made and applying the presumption in favour of the development plan and then weighing material considerations in the planning balance. An article of this size will do no justice to the complexity of this case (the inspector’s report alone is over 160 pages long) but the conclusions on the key planning issues were:
The Secretary of State concluded that the material considerations supported the grant of planning permission despite the conflicts with the development plan. Key to the decision was the substantial weight attached to the absolute increase in housing (and affordable housing) of the scheme compared to the Fallback which were considered to outweigh the harm, including to heritage assets.
On first review, this does seem to be a surprising decision. It is too easy to default to a view that the decision was politically motivated with a Conservative Secretary of State granting planning permission for a major residential development in a Labour controlled local authority in connection with a site where Boris Johnson had previously stepped in to grant planning permission when London Mayor. There has also been commentary suggesting the timing was deliberate to ensure that the Council did not receive CIL for the scheme but why should a decision which is ready to be issued be held up just because CIL is about to be introduced? A delay would inevitably have undermined the offered affordable housing provision of 21%.
The above said, the notion that an increase in the amount of housing compared to a realistic fallback is in itself sufficient to support the grant of planning permission is surprising. Housing and affordable housing need is particularly acute in London but in one sense all residential led schemes involve absolute increases in both housing and affordable housing. It follows that this material planning consideration could theoretically be used to support the grant of planning permission on almost any proposed residential development site. The Decision also illustrates the importance of fallbacks as providing a benchmark against which development proposals should be assessed.
However, what the Decision most clearly illustrates is that the weight to be attached to a material planning consideration is entirely a matter for the decision maker (unless the exercise of that planning judgement is irrational, of course, which the Courts have historically treated as difficult to successfully argue). It is therefore possible to grant planning permission within the current statutory framework even when a scheme is not policy compliant and significant harm is identified. That fundamental principle does of course provide significant opportunity to secure planning permission for schemes which are contrary to policy but it also illustrates some of the challenges in predicting whether planning permission will be granted, particularly on appeal. We await the outcome of Tower Hamlets’ legal challenge with anticipation.
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To contact us, please fill out this form and we will get back in touch as soon as possible. Your personal data will be processed in accordance with our privacy policy which can be found here.