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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kinsey, R (On the Application Of) v London Borough Of Lewisham [2021] EWHC 1286 (Admin) (18 May 2021) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2021/1286.html Cite as: [2021] EWHC 1286 (Admin) |
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QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| THE QUEEN on the application of HELEN ELIZABETH KINSEY |
Claimant |
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| - and - |
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| LONDON BOROUGH OF LEWISHAM |
Defendant |
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| CITY OF LONDON CORPORATION |
Interested Party |
____________________
Saira Kabir Sheikh QC and Charles Merrett (instructed by Womble Bond Dickinson (UK) LLP) for the Defendant
Sasha White QC and Matthew Henderson (instructed by Comptroller and City Solicitor) for the Interested Party
Hearing dates: 27 & 28 April 2021
____________________
Crown Copyright ©
Mrs Justice Lang :
Grounds of challenge
Ground 1:
Ground 2
i) the duty to take into account a material consideration;
ii) the duty to take into account the product of a consultation which it had carried out;
iii) the duty to have special regard to the effect of the proposal on listed buildings and conservation areas under sections 66 and 72 of the Listed Buildings and Conservation Areas Act 1990 and the Framework;
iv) the PPG's advice on considering the degree of less than substantial harm;
Ground 3
Ground 4
Ground 5
Ground 6
Application to amend the claim
"the Council failed to make all of the report to the Committee on the application available to the public, whether before or after the meeting, in breach of the Local Government Act 1972, ss 100B, 100C as modified by the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020;"
Facts
"I have objections due to the harm caused to the CA, the setting of listed buildings and the setting of locally listed buildings, chiefly caused by the height and position on site of the proposed buildings.
I do not consider that the harm is adequately justified by the aim for highly dense scheme or its viability."
"641 The Proposal would provide a substantial quantum of socially rented residential units to help meet the Borough's housing needs. This is a significant benefit to be weighed in the planning balance as the proposal will assist in addressing its housing need which is set to increase substantially under the draft London Plan housing targets.
642 The proposals reflect the principles of the highest quality design, ensuring an exemplary built environment for visitors and residents. The impacts upon heritage assets in the vicinity of the application site have been fully considered and it is concluded that less than substantial harm will be caused. The officer assessment has also identified some impacts upon occupants of neighbouring residential properties in relation to loss of light and overshadowing. However, on balance the benefits and planning merits of the scheme are considered to substantially outweigh any harm identified.
643 The proposed development would also result in the delivery of significant public realm enhancements, specifically through the delivery of the communal amenity space. Improvements to the existing highways network would also be secured by legal agreement.
644 In conclusion, the proposed development is considered to be in accordance with the relevant national planning policy guidance and development plan policies. The proposals are wholly sustainable development in accordance with the NPPF and will make an important contribution to the borough, in respect of housing supply and importantly the wider borough community. The proposals are therefore considered to be both appropriate and beneficial. Therefore, on balance, any harm arising from the proposed development is considered to be significantly outweighed by the benefits listed above."
"Demolition of existing buildings at Mais House and Otto Close garages SE26, and redevelopment to provide a part four, six and seven storey building and a part two and three storey terrace building providing a total of 110 residential units (use class C3), community room and estate office; together with alterations to the existing ball court; associated works to vehicular and pedestrian access from Sydenham Hill, Lammas Green and Kirkdale, provision of car and cycle parking, refuse storage and landscaping including amenity space and play area."
Legal framework
Judicial review
Decision making
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise."
Planning officers' reports
"42. The principles on which the court will act when criticism is made of a planning officer's report to committee are well settled. To summarise the law as it stands:
(1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms [1997] EGCS 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council [2010] EWCA Civ 1286, at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin), at paragraph 15).
(2) The principles are not complicated. Planning officers' reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council [2011] UKSC 2, at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500, at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer's recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council [2016] EWCA Civ 1061, at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer's report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee's decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice.
(3) Where the line is drawn between an officer's advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council [2016] EWCA Civ 795), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council [2017] EWCA Civ 152). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council [2017] EWCA Civ 427). But unless there is some distinct and material defect in the officer's advice, the court will not interfere."
"Whilst planning officers' reports should not be equated with inspectors' decision letters, it is well established that, in construing the latter, it has to be remembered that they are addressed to the parties who will be well aware of the issues that have been raised in the appeal. They are thus addressed to a knowledgeable readership and the adequacy of their reasoning must be considered against that background. That approach applies with particular force to a planning officer's report to a committee. Its purpose is not to decide the issue, but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large but to council members who, by virtue of that membership, may be expected to have substantial local and background knowledge. There would be no point in a planning officer's report setting out in great detail background material, for example, in respect of local topography, development planning policies or matters of planning history if the members were only too familiar with that material. Part of a planning officer's expert function in reporting to the committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail."
Heritage assets
"66. General duty as respects listed buildings in exercise of planning functions
(1) In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses."
"In the exercise, with respect to any buildings or other land in a conservation area, of any functions under or by virtue of any of the provisions mentioned in subsection (2), special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area."
These provisions include the TCPA 1990: see section 72(2).
"Considering potential impacts
193. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset's conservation (and the more important the asset, the greater the weight should be). This is irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm to its significance.
194. Any harm to, or loss of, the significance of a designated heritage asset (from its alteration or destruction, or from development within its setting), should require clear and convincing justification. Substantial harm to or loss of:
a) grade II listed buildings, or grade II registered parks or gardens, should be exceptional;
b) assets of the highest significance, notably scheduled monuments, protected wreck sites, registered battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites, should be wholly exceptional.
195. Where a proposed development will lead to substantial harm to (or total loss of significance of) a designated heritage asset, local planning authorities should refuse consent, unless it can be demonstrated that the substantial harm or total loss is necessary to achieve substantial public benefits that outweigh that harm or loss, or all of the following apply….
196. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal including, where appropriate, securing its optimum viable use."
"Within each category of harm (which category applies should be explicitly identified), the extent of the harm may vary and should be clearly articulated." ID: 18a-018-20190723
"28. If one applies the correct approach in the present case, as set out in Save Britain's Heritage and South Bucks DC v Porter (No. 2), it cannot be said that the reasoning of the Inspector gives rise to any substantial doubt as to whether he erred in law. On the contrary, the express references by the Inspector to both Policy EV12 and paragraph 134 of the NPPF are strong indications that he in fact had the relevant legal duty according to section 66(1) of the Listed Buildings Act in mind and complied with it. Policy EV12 reflects that duty, and the textual commentary on it reminds the reader of that provision. Paragraph 134 of the NPPF appears as part of a fasciculus of paragraphs, set out above, which lay down an approach which corresponds with the duty in section 66(1). Generally, a decision-maker who works through those paragraphs in accordance with their terms will have complied with the section 66(1) duty. When an expert planning inspector refers to a paragraph within that grouping of provisions (as the Inspector referred to paragraph 134 of the NPPF in the Decision Letter in this case) then – absent some positive contrary indication in other parts of the text of his reasons — the appropriate inference is that he has taken properly into account all those provisions, not that he has forgotten about all the other paragraphs apart from the specific one he has mentioned. Working through these paragraphs, a decision-maker who had properly directed himself by reference to them would indeed have arrived at the conclusion that the case fell within paragraph 134, as the Inspector did."
"7. The existence of the statutory duty under section 66(1) does not alter the approach that the court takes to an examination of the reasons for the decision given by the decision maker: Jones v Mordue [2015] EWCA Civ 1243; [2016] 1 WLR 2682. It is not for the decision maker to demonstrate positively that he has complied with that duty: it is for the challenger to demonstrate that at the very least there is substantial doubt whether he has. Where the decision maker refers to the statutory duty, the relevant parts of the NPPF and any relevant policies in the development plan there is an inference that he has complied with it, absent some positive indication to the contrary: Jones v Mordue at [28]. In examining the reasons given by a local planning authority for a decision, it is a reasonable inference that, in the absence of contrary evidence, they accepted the reasoning of an officer's report, at all events where they follow the officer's recommendation: R (Fabre) v Mendip DC (2000) 80 P&CR 500, 511; R (Zurich Assurance Ltd) v North Lincolnshire Council [2012] EWHC 3708 at [15]."
Grounds of challenge
Ground 2
Submissions
i) the duty to take into account a material consideration;
ii) the duty to take into account the product of a consultation which it had carried out;
iii) the duty to have special regard to the effect of the proposal on listed buildings and conservation areas under sections 66 and 72 of the Listed Buildings and Conservation Areas Act 1990 and the Framework;
iv) the PPG's advice on considering the degree of less than substantial harm.
Conclusions
"Justification
The number of units is justified by the ambition to maximise new dwelling numbers and by viability, and thus does not provide a design or heritage based clear and convincing justification for the harm to the setting of the LBs or CA. No convincingly different alternative options have been provided to demonstrate that a scheme of lower density could be viable and the scheme is driven by achieving high housing numbers.
Recommendation
I have objections due to the harm caused to the CA, the setting of listed buildings and the setting of locally listed buildings, chiefly caused by the height and position on site of the proposed buildings.
I do not consider that the harm is adequately justified by the aim for highly dense scheme or its viability."
i) The SCO's criticisms of the siting in the plot and proximity to the road (page 322) were not mentioned (even though these are included in the conservation recommendation at page 325), nor the SCO's suggestion that the orientation should be changed. Instead the report says that the floorplan is cranked to reduce impacts, at OR 312.
ii) The SCO's reference to a "prominent and anomalous visual presence" (page 322) in views to the conservation area is omitted from the OR.
iii) The OR advised Members that "the edge of the Conservation Area along Sydenham Hill is significant" (OR 312) when the SCO advised it was "highly significant", and also disagreed with the assessment in the HS as "very minor" (pages 322-323).
iv) The harm to views from Lammas Green to the south east is mentioned at OR 308, but the report does not say this is caused by the southernmost house of the proposed Otto Place and that the SCO's advice was that it was necessary to omit this or reduce it in width/height (page 323). Although the OR states that the blocking of the view from Lammas Green would "cause a degree of less than substantial harm to the setting of the listed building", it omits the SCO's advice that this harm is "moderate" (page 324).
v) On the view from within Lammas Green towards the 6/7 storey building, OR 309 states:
"the view…..demonstrates that the buildings will be visible and that the proposed height is at odds with the scale of the listed buildings. Whilst is it not harmful in principle to see new development beyond the boundary of Lammas Green the proposed relationship would cause a degree of less than substantial harm to the setting of the listed buildings."
This passage omits the SCO's advice that "the height appears out of scale and context with its surroundings and is particularly prominent on this high land", and that this will cause a "moderate degree" of less than substantial harm (page 324).
vi) The OR fails to refer to the "moderate to high degree of less than substantial harm" to the conservation area advised by the SCO (page 324), merely describing it as "a degree of less than substantial harm" at OR 313.
vii) The OR does not mention the SCO's advice that "[b]eing the edge of the CA it is particularly important to reinforce its characteristics so as to prevent erosion which this scheme fails to do" (page 324).
viii) In OR 315, the planning officer refers to the harm to non-designated heritage assets as causing "a degree of less than substantial harm to their setting", and omits the SCO's advice that the harm is "moderate" (page 324).
"73. Mr Tucker submitted that the judge had adopted an "overly analytical" approach to the officer's report, had applied an "incorrect test", contrary to the test of "substantial doubt" set by this court in Palmer, and had not recognised the committee's own expertise and its experience of making decisions on proposals affecting heritage assets (see R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500). The omission to report the objection of the Urban Design and Heritage Conservation team was not a "positive factor" capable of displacing the presumption that the section 66(1) duty had been performed. It was not clear what other factors the judge had seen as relevant "contra-indications".
74. I cannot accept those submissions. As Mr Westaway submitted, the judge was rightly troubled by the officer's failure to tell the committee of the "strong conservation objections" raised by the Urban Design and Heritage Conservation team to the construction of three houses in the setting of Beechley House, and right to conclude that this was enough to displace the presumption that the section 66(1) duty had been properly performed.
75. I acknowledge that the Urban Design and Heritage Conservation team objected only to this element of the scheme; and that, having made their observations, they recognised it was for the city council as decision-maker "to consider the public benefits of the scheme against the identified harm to the significance of the listed buildings and structures at the Beechley site" – an exercise not within their remit. I also acknowledge that it would have been open to the Interim Head of Planning – when reporting to the Planning Committee – and to the members themselves, to differ from the opinion of the Urban Design and Heritage Conservation team, or to find that it would not be enough to justify refusing planning permission.
76. However, this was an objection provided in response to the formal consultation of a team of professional officers employed by the city council for their expertise in the conservation of heritage assets, including listed buildings and their settings. The purpose of the consultation was to draw upon that expertise so that it could assist the city council in discharging its duty under section 66(1) when making its decision on the application for planning permission. This was consistent with the policy in paragraph 129 of the NPPF referring to the need for authorities to take into account "any necessary expertise", and with the guidance in the Planning Practice Guidance stressing the value of "expert advice", and the seeking of "[advice] … from appropriately qualified staff and experienced in-house experts …". Omitting to take into account the response of the Urban Design and Heritage Conservation team was not only to ignore their objection. It was also to disregard national policy and guidance relevant to the section 66(1) duty.
77. Whether the failure to bring the objection to the attention of the members was simply an oversight or deliberate does not matter. It is the more striking because the officer took care to refer in his report to three other internal consultation responses. And it was, I think, a significant omission (see Mansell v Tonbridge and Malling Borough Council [2019] PTSR 1452, at paragraph 42(3)). This was not a perfunctory response to consultation. It was a detailed and carefully considered assessment of the effects the development would have on the listed buildings and their settings. It differed from the assessment presented to the committee by the Interim Head of Planning, and in a significant way. It articulated "strong conservation objections" to the proposed construction of three houses within the setting of Beechley House. That the Interim Head of Planning himself acknowledged there would be some harm to the setting of the listed building does not overcome the omission. The fact remains that the city council's own conservation officers had expressed a firm objection, which was neither confronted nor even noted in the officer's report or in debate at the committee meeting.
78. In my view, that objection – both the fact of it and its substance – was, in the circumstances, an "obviously material" consideration of the kind referred to in In re Findlay [1985] A.C. 318 (see the speech of Lord Scarman at pp.333 and 334; and also the judgment of Glidewell L.J. in Bolton Metropolitan Borough Council v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority (1991) 61 P. & C.R. 343, at p.352). Quite apart from the section 66(1) duty, this was a matter to which the city council had to have regard in reaching its decision on the application for planning permission, giving it such weight as it saw fit. It could have made a difference to the outcome. But it was overlooked. That was an error of law.
…
81. The error was not merely a failure to have regard to a material consideration. It was also a significant default in the city council's performance of its duty under section 66(1). It indicates that despite the reference made in the officer's report to the statutory duty, the policies in paragraphs 132 and 134 of the NPPF and Policy HD5 of the UDP, the duty to have "special regard" to the desirability of preserving the setting of the listed building was not complied with. Even if one could excuse the other shortcomings to which the judge referred – including the "unweighted formulation of the balancing exercise" in the officer's assessment – I think this would be a sufficiently powerful "contra-indication" on its own to displace the presumption that the section 66(1) duty was discharged. For this reason, like the judge, I am left in "substantial doubt" that the duty was performed."
"…….
We do not, as a matter of course, make public the advice that internal consultees provide to the planning case officer, instead the advice is incorporated into the Officers report with comment on how any objections have been weighed against planning benefits of the scheme, as required by NPPF.
I have re-read both my advice and the committee report and can confirm that all of my areas of objection regarding harm to the setting of listed buildings and to the Conservation Area have been included in the Heritage section of the report.
……."
Ground 1
Submissions
i) failing to apply the considerable weight to harm to listed buildings and the conservation area as required by sections 66 and 72 of the Listed Buildings and Conservation Areas Act 1990 and by the Framework, and thereby failed to apply the strong presumption against the grant of planning permission which arises from the statutory provisions;
ii) failing to consider the extent of the less than substantial harm caused to those designated heritage assets as required by the PPG;
iii) failed to consider the need for a "clear and convincing justification" for harm, under paragraph 194 of the Framework;
iv) acted in breach of the duty to pay special regard or special attention in sections 66 and 72 of the Listed Buildings and Conservation Areas Act 1990 by:
a) failing to summarise the representations from the Twentieth Century Society and failing to say whether they were neutral, objecting, or supporting;
b) as pleaded in Ground 2, failed to give close consideration to the SCO's expert advice.
Conclusions
"Relevant paragraphs of Chapter 16 of the NPPF set out how LPAs should approach determining applications that relate to heritage assets. This includes giving great weight to the asset's conservation, when considering the impact of a proposed development on the significance of a designated heritage asset. Further, Paragraph 196 states that where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset that harm should be weighed against the public benefits of the proposal."
"292. LPP 7.8 states that development should among other things conserve and incorporate heritage assets where appropriate. Where it would affect heritage assets, development should be sympathetic to their form, scale, materials and architectural details. DLPP HC1 reflects adopted policy.
293. CSP 16 ensures the value and significance of the borough's heritage assets are among things enhanced and conserved in line with national and regional policy.
294. DMP 36 echoes national and regional policy and summarises the steps the borough will take to manage changes to Conservation Areas, Listed Buildings, Scheduled Ancient Monuments and Registered Parks and Gardens so that their value and significance as designated heritage assets is maintained and enhanced."
"Impact on Heritage Assets Conclusion
317. In light of the above, officers consider that the current proposal would lead to less than substantial harm to the Sydenham Hill Conservation Area, Grade II Listed buildings at Lammas Green and Non-designated Heritage Assets on Sydenham Hill.
318. The applicant has provided substantive evidence of the wider public benefits of the proposal including most significantly, the provision of 110 socially rented new homes, which meet an evidenced and clear identified need in place of the existing Mais House building which is again clearly evidenced as not serving local need or demand.
319. As such, officers must weigh the public benefits of the scheme against the harm identified to heritage assets as identified above. The harm is weighed against the public benefits in the report conclusion and urban design conclusion below."
"Urban Design Conclusion
327. The overall design approach has sought to ensure that in urban design terms, the scheme would result in a form of development that sits comfortably the wider character and appearance of the local area.
328. The proposals achieve a high quality design in both the proposed building and public realm, and the scheme overall presents significant planning benefits as outlined in detail above. In accordance with Paragraph 196 of the National Planning policy Framework the harm to heritage assets has been weighed against the public benefits of the proposal including, where appropriate, securing its optimum viable use.
329. Whilst less than substantial harm to heritage assets has been recognised above, the significant public benefits presented by the proposed development in the provision of 110 new social rented homes are considered in this instance, to outweigh this harm.
330. As such, it is considered that on balance that the proposal is acceptable with regard to urban design and impact upon heritage assets, and accords with the Development Plan."
"Conclusion
639. The application has been assessed against the adopted Development Plan, as required by Section 38(6) of the Planning and Compulsory Purchase Act.
640. The proposals have been developed in the context of extensive pre-application consultation with Council Officers, the Greater London Authority and following two presentations to Lewisham's Design Review Panel. The applicant has also held three public exhibitions to which local residents and stakeholders were invited.
641. The Proposal would provide a substantial quantum of socially rented residential units to help meet the Borough's housing needs. This is a significant benefit to be weighed in the planning balance as the proposal will assist in addressing its housing need which is set to increase substantially under the draft London Plan housing targets.
642. The proposals reflect the principles of the highest quality design, ensuring an exemplary built environment for visitors and residents. The impacts upon heritage assets in the vicinity of the application site have been fully considered and it is concluded that less than substantial harm will be caused. The officer assessment has also identified some impacts upon occupants of neighbouring residential properties in relation to loss of light and overshadowing. However, on balance the benefits and planning merits of the scheme are considered to substantially outweigh any harm identified.
643. The proposed development would also result in the delivery of significant public realm enhancements, specifically through the delivery of the communal amenity space. Improvements to the existing highways network would also be secured by legal agreement.
644. In conclusion, the proposed development is considered to be in accordance with the relevant national planning policy guidance and development plan policies. The proposals are wholly sustainable development in accordance with the NPPF and will make an important contribution to the borough, in respect of housing supply and importantly the wider borough community. The proposals are therefore considered to be both appropriate and beneficial. Therefore, on balance, any harm arising from the proposed development is considered to be significantly outweighed by the benefits listed above."
i) The failure of the planning officer to advise Members to apply paragraph 194 of the Framework which provides:
"194. Any harm to, or loss of, the significance of a designated heritage asset (from its alteration or destruction, or from development within its setting), should require clear and convincing justification…."
ii) The failure of the planning officer to advise Members that they were required to apply a weighted or tilted balancing exercise, giving the assessed degree of harm to the heritage assets "considerable importance and weight" as against the benefits of the proposed development.
"Comments
The Society's principal concern is the height of the residential block proposed to replace Mais House, and how views of this new block will intrude on the Lammas Green's idyllic atmosphere, which we consider to be a key aspect of its significance.
Visitors to Lammas Green experience an astonishing sense of seclusion and calm, with surrounding trees creating a pleasant backdrop from viewpoints around the central green. The scale, aesthetic, layout and green qualities of the estate set it apart from most other housing schemes built in this period, and it is remarkable that even after over 60 years the sense of peace remains undisturbed by insensitive alterations. Views of the proposals submitted by the applicant show that the proposed block of flats will be dominant above the roofline of the listed terraced houses and will be a substantial interruption to the tree canopy that serves as the estate's current backdrop.
The Society … remain unconvinced that a similar number and size of residential units could not be provided in a different arrangement that would have a lower roofline and therefore reduce the level of harm caused to Lammas Green's historic significance. Removing the pitched roof would be an obvious way to reduce the proposed block's height, reducing the visibility of the proposed development in views from within Lammas Green.
Summary
The Society wishes to object to the above application as we consider the proposals to cause unnecessary harm to a Grade II listed heritage asset. We recommend that planning permission be refused, or the scheme be amended to reduce the height of the proposed residential block, so the historic and architectural significance of Lammas Green is sustained."
"In total 209 representations have been received in objection to the proposed development. These objections include representations from the Forest Hill Society, the Sydenham Society and MP Helen Hayes. Representations were also received from the London Countryside Charity, the Sydenham Hill Ridge Forum and the 20th Century Society."
Ground 4
Submissions
"15. Reports to Committee and recommendations are given by the Director of Planning, albeit that other officers within the Planning Service will write and contribute to the report on the Director's behalf…..The Conservation Officer is a member of the Planning Service, as am I. Comments received from the Conservation Officer are treated as the opinion of one officer within the Planning Service, provided to another, as a contribution towards the Director of Planning's overall response to an application for planning permission…."
Legal framework
"For the purposes of this section the background papers for a report are those documents relating to the subject matter of the report which—
(a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and
(b) have, in his opinion, been relied on to a material extent in preparing the report, but do not include any published works."
"(c) a document being "open to inspection" includes being published on the website of the council;
(d) the publication, posting or making available of a document at offices of the council include publication on the website of the council."
"The very purpose of a legal obligation conferring a right to know is to put members of the public in a position where they can make sensible contributions to democratic decision-making."
Conclusions
Ground 5
"273. The TVIA outlines that in relation to views from the opposite side of the ridge, to the northwest of the application site at Dulwich Park, that the proposed development would just be visible above the existing tree canopy. Whilst it would be preferable that no part of the development was visible at all, only a very small portion of the proposals would be visible from very long-range views. It is also acknowledged that further north east and south west of the application site along Sydenham Hill, that some buildings (the highest of such being 9 storeys in height) can also be seen on the horizon through tree canopy. Additionally, it is acknowledged that the building would also be visible on the horizon when viewed from the opposite side of the ridge, from the south. Whilst the proposals will just be visible and would have some impact upon the appearance of Sydenham Ridge, no unreasonable harm is identified here that would warrant refusal of the scheme. Impact of the proposals on heritage assets specifically is considered below.
274. Whilst the scale of the proposed development is generally larger and more dense than that of the existing built context. (sic) The design team have sought to reduce the buildings impact on the surrounding area by through (sic) careful articulation of the massing, combined with a very high quality of detail and materiality as outlined below. Overall, the proposals are considered to sit relatively comfortably within the existing built context and would make a positive contribution to the character and appearance of the surrounding area whilst optimising the quantum of development on site…."
Ground 6
Submissions
SCI: the legal framework
"The statement of community involvement is a statement of the authority's policy as to the involvement in the exercise of the authority's functions under … and Part 3 of the principal Act of persons who appear to the authority to have an interest in matters relating to development in their area."
The principal Act is the TCPA 1990 and Part 3 sections 55 to 106C, including the handling and determination of planning applications.
"(1) Legitimate expectation
12. Mr Harwood suggests that this is a paradigm case of a breach of legitimate expectation. The Statement is part of the respondent's local development scheme (see section 17 of the 2004 Act) and was prepared, submitted for independent examination, and adopted in accordance with the procedures which are set out in sections 19, 20 and 23 of the 2004 Act. The Statement sets out how the respondent intends to involve local communities in the consideration of planning applications: see paragraph 1.1. It sets out who is going to be involved, see paragraph 1.2; and it tells the public that when the Statement is adopted "the council is required to follow what it says".
13. There can be no doubt that the appellant should have been notified of the planning application in accordance with the terms of Annex 6, see above. The sole reason why he was not notified is the respondent's administrative error. On the face of it, therefore, one has a case of both a promise to notify and a practice to notify in accordance with Annex 6 of the Statement, both the promise and the practice being underpinned by the provisions of the 2004 Act, which required the respondent to prepare the Statement.
14. On behalf of the respondent and the interested party, Mr Beard and Mr Kolinsky submitted that there was no legitimate expectation. It was submitted that, since there was a specific statutory code — the General Development Procedure Order ("GDPO") — which regulates the balance between the various interests, applicants and local residents, as to who should and who should not be notified, it would be wrong to impose some rigid requirement to notify in accordance with the terms of Annex 6. It was submitted that this would upset the balance that had been struck by the statutory requirements. It seems to me that reference to the statutory requirements is of no real assistance. Legitimate expectation comes into play when there is no statutory requirement. If there is a breach of a statutory requirement then that breach can be the subject of proceedings. Legitimate expectation comes into play when there is a promise or a practice to do more than that which is required by statute. It seems to me that the Statement is a paradigm example of such a promise and a practice. As I understood it, Mr Beard accepted that this appellant falls within Annex 6. Although he submitted there was an element of discretion, that is not relevant in the circumstances of the present case. No doubt if an officer had given consideration to the matter and had concluded that, for example, this appellant was so far away from the proposed development that he could not fairly be described as an adjoining occupier then, absent Wednesbury unreasonableness, the court would not interfere with that exercise of discretion. In the present case no discretion was exercised and administrative mistake was made. It was submitted by the respondent and the interested party that, even though there was a clear statement that a person in the position of the appellant would be sent a letter, there was nevertheless no unequivocal assurance that they would be notified. I am quite unable to accept that submission given the clear terms of paragraph 1.3 of the Statement which tells the public that when the Statement is adopted by the council it is "required to follow what it says". It would be difficult to imagine a more unequivocal statement as to who would, and who would not, be notified.
15. There was therefore, in my judgment, a clear breach of the appellant's legitimate expectation that he would be notified of planning applications, such as the application made by the interested party, in accordance with the terms of annex 6 to the Statement. The appellant therefore succeeds on issue 1. It does not necessarily follow that the grant of planning permission was unlawful. It is unnecessary in the circumstances of this particular case to decide whether a claimant in the appellant's position must, in order to establish procedural unfairness, also demonstrate prejudice as a result of failure to notify him, because the question whether the appellant was prejudiced by the failure to notify him in accordance with the Statement (and, if so, to what extent) is plainly relevant to the exercise of the court's discretion as to whether the permission should be quashed or whether declaratory relief should be granted (see issue (5) below)."
Legitimate expectation – the law
"Legitimate…expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the Claimant can reasonably expect to continue."
"62. From these authorities it can be deduced that where a clear and unambiguous undertaking has been made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so. The court is the arbiter of fairness in this context. And a matter sounding on the question of fairness is whether the alteration in policy frustrates any reliance which the person or group has placed upon it. This is quite different, in my opinion, from saying that it is a prerequisite of a substantive legitimate expectation claim that the person relying on it must show that he or she has suffered a detriment.
63. In this case, it was argued for the respondent that it was incumbent on Mrs Finucane to show that she had suffered a detriment. That argument simply does not avail in this instance, since the question of detriment can only arise, if it arises at all, in the context of a substantive legitimate expectation. Here the promise made did not partake of a substantive benefit to a limited class of individuals (as for instance, in Ex p. Coughlan); it was a policy statement about procedure, made not just to Mrs Finucane, but to the world at large."
Lord Carnwath agreed with Lord Kerr, at [156] – [160].
"36. The critical question in this part of the case is whether there was a sufficient public interest to override the legitimate expectation to which the representations had given rise. This raises the further question as to the burden of proof in cases of frustration of a legitimate expectation.
37. The initial burden lies on an applicant to prove the legitimacy of his expectation. This means that in a claim based on a promise, the applicant must prove the promise and that it was clear and unambiguous and devoid of relevant qualification. If he wishes to reinforce his case by saying that he relied on the promise to his detriment, then obviously he must prove that too. Once these elements have been proved by the applicant, however, the onus shifts to the authority to justify the frustration of the legitimate expectation. It is for the authority to identify any overriding interest on which it relies to justify the frustration of the expectation. It will then be a matter for the court to weigh the requirements of fairness against that interest.
38. If the authority does not place material before the court to justify its frustration of the expectation, it runs the risk that the court will conclude that there is no sufficient public interest and that in consequence its conduct is so unfair as to amount to an abuse of power. The Board agrees with the observation of Laws LJ in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363 at para 68:
"The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances."
It is for the authority to prove that its failure or refusal to honour its promises was justified in the public interest. There is no burden on the applicant to prove that the failure or refusal was not justified.
…
45. ….. In Bibi, Schiemann LJ said that an authority is under a duty to consider a legitimate expectation in its decision making process. He said:
"49. Whereas in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 it was common ground that the authority had given consideration to the promises it had made, in the present cases, that is not so. The authority in its decision making process has simply not acknowledged that the promises were a relevant consideration in coming to a conclusion as to whether they should be honoured and if not what, if anything, should be done to assuage the disappointed expectations.
. . .
51. The law requires that any legitimate expectation be properly taken into account in the decision making process. It has not been in the present case and therefore the authority has acted unlawfully."
46. The Board agrees. Where an authority is considering whether to act inconsistently with a representation or promise which it has made and which has given rise to a legitimate expectation, good administration as well as elementary fairness demands that it takes into account the fact that the proposed act will amount to a breach of the promise. Put in public law terms, the promise and the fact that the proposed act will amount to a breach of it are relevant factors which must be taken into account."
"68. The search for principle surely starts with the theme that is current through the legitimate expectation cases. It may be expressed thus. Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. That being so there is every reason to articulate the limits of this requirement — to describe what may count as good reason to depart from it — as we have come to articulate the limits of other constitutional principles overtly found in the European Convention. Accordingly a public body's promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body's legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances."
Evidence
"The Statement of Community Involvement is intended to provide certainty to the community about how and when they can participate in the planning process. Given the diverse nature of planning, it is not possible to determine every possibility and to this extent the Statement of Community Involvement is intended to be flexible enough to accommodate various circumstances. The Statement of Community Involvement should ensure continual engagement with the community in a timely and productive manner."
"Planning is very diverse in the issues it deals with and the people it impacts on. It is not possible to determine every possibility and, to this extent, the Statement of Community Involvement is intended to be flexible enough to accommodate various circumstances as they arise. In situations where there will be a need for the Council to exercise discretion in deciding how something should be dealt with, the terms 'where appropriate' or 'as appropriate' are used to reflect the reality that something will only happen if, having regard to the specific circumstances of the matter being considered, the Council considers it is a suitable and/or reasonable approach to take….."
"The Design Panel and the Amenity Societies Panel have been established to provide design advice to the Council on certain planning applications (see Section 6 for the types of planning application that are included in the agendas for these panels)."
"3.2.9 The purpose of the DRP is to provide expert, independent design advice and guidance to developers and their design teams, Planning case officers and the Planning Committees on significant development within the Borough. The DRP's advice is meant to assist and encourage the developers and their design teams to achieve and deliver high quality design in their development proposals."
"This section details how the community will be involved with the processing of planning applications (as a minimum)."
"The following planning applications will be referred to the Design Panel:
? planning applications for major new development and significant alterations to existing buildings with scope to impact on the borough's townscape. Major development is defined as commercial buildings proposing 1,000sq.m. or more of new floorspace or 10 or more residential units, and such other developments which the Council's Head of Planning considers would benefit from design advice. …
? any significant new buildings proposed within conservation areas.
The following planning applications will be referred to the Amenity Societies Panel:
? in conservation areas, planning applications for … new buildings not referred to the Design Panel,…"
"All representations must be considered by the Council in making a decision."
"5.5 LEWISHAM DESIGN REVIEW PANEL (LDRP)
108. The proposed development was presented to LBL's Design Review Panel (DRP) on three occasions across 2018 and 2019
109. Following comments made in relation to the DRP's comments from the first two meetings, the design team met with the Planning Service and amended the scheme to address the issues raised by the DRP, as well as those raised by the Planning Service.
110. The Panel's comments following the third meeting in July 2019 in relation to a 120 unit iteration of the proposed development are summarised as follows:
• The presentation was very good and clear and the evolution of the scheme is generally developing in a positive direction.
• The Panel noted the reduction in the overall heights of some of the proposed blocks which it regarded as a positive trend. However, the buildings still appear to be of a scale and mass which seem excessive when considered in context. The case for a substantial development of the heights proposed has not really been developed much beyond the consequence of the quantum of development. Whilst the architects have applied considerable energy and intelligence to talking the issue, the fundamental problem of the scale of development remains taking into account the context of the sub-urban treed environment with generally low-rise buildings surrounding, and important heritage assets on both neighbouring land plots on Sydenham Hill.
• The Panel strongly recommended that the scale is re-evaluated and a more persuasive supporting architectural and townscape narrative developed to help underpin the case for the final outcome. This is missing at present and makes the development therefore harder to substantiate.
• The central building within the body of the site also appears too tall/large.
• The Sydenham Hill frontage is the most important and is not yet working entirely successfully.
• The approach to polychromatic brickwork on the elevations was rich and characterful but the buildings in general did not engage with the ground very successfully and the language of the architecture needs to be further developed, modelled and refined in intent. The detailing should be contemporary and should avoid pastiche, some Panel members commenting that the architecture exhibited a clear 1950s feel which was suspected to be unintentional.
• The landscape design strategy is evolving positively, and the integration of building footprints and landscape is starting to appear much more convincing. However there are concerns about the separation between public and private spaces which seems unclear at present, and the general integration of internal plans at ground level and the landscape spaces. The opportunities that ground level living can offer in terms of relationship with terraces, gardens and the like and the effect architecturally on the base of the building have yet to be fully developed.
111. The applicant subsequently amended the application in response to the comments from the panel's third view, constituting in a further reduction of scale and loss of 10 residential units. The responses are discussed in detail in the applicant's Design and Access Statement and Planning Statement as well as in the planning assessment below. The scheme has not been further reviewed by the Panel, the scheme has support from the councils urban design team, and officers consider that the comments from the Design Review Panel have been taken into account and addressed within the submission scheme."
Conclusions
i) the Panel had already considered and commented upon three iterations of the proposed scheme at pre-application stage, in accordance with the Planning Performance Agreement between the Council and the IP, and the desirability of reviewing design as early as possible (Framework paragraph 129);
ii) the IP had made several amendments as a direct response to the comments made by the Panel in its third review;
iii) officers were satisfied that the amended proposals addressed the Panel's concerns and given the IP's "positive and proactive response", officers did not consider it necessary to return the proposals to the Panel for a fourth time;
iv) the scheme was satisfactory.
i) despite the reduction in the overall heights of some of the proposed blocks, "the buildings still appear to be of a scale and mass which seems excessive when considered in context";
ii) "….the fundamental problem of the scale of development remains, taking into account the context of the sub-urban treed environment with generally low-rise buildings surrounding, and important heritage assets on both neighbouring land plots …";
iii) "The Panel strongly recommended that the scale is re-evaluated …";
iv) "The Sydenham Hill frontage is the most important and is not yet working entirely successfully";
v) "the buildings … did not engage with the ground very successfully and the language of the architecture needs to be further developed, modelled and refined in intent".
"The Lewisham Design Review Panel did not support the design at the last meeting in July 2019. The design was not returned to the panel for further review and residents strongly disagree with the planning report conclusion that the final design reflects their recommendations. The density was reduced by less than 10% from the design presented to the panel….."
Senior Courts Act 1981, section 31
Final conclusion
