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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Linden Homes Ltd v Bromley Borough Council [2011] EWHC 3430 (Admin) (19 December 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/3430.html Cite as: [2011] EWHC 3430 (Admin) |
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ADMINISTRATIVE DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Deputy High Court Judge )
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LINDEN HOMES LIMITED |
CLAIMANT |
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- and - |
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BROMLEY BOROUGH COUNCIL |
DEFENDANT |
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Mr Timothy Comyn (instructed by Director of Legal, Democratic and Customer Services, London Borough of Bromley) for the Defendant
Hearing dates: 31st October 2011
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Crown Copyright ©
His Honour Judge Bidder QC:
"A person aggrieved by a relevant document may make an application to the High Court on the ground that:-
(a) the document is not within the appropriate power;"
THE STATUTORY FRAMEWORK
"To be "sound" other DPDs should be JUSTIFIED and EFFECTIVE and consistent with NATIONAL POLICY".
"4.36……
- Founded on a robust and credible evidence base; and
- the most appropriate strategy when considered against the reasonable alternatives."
"Core strategies have major effects. Social and economic impacts may include altering property values by a considerable amount or helping access to housing, jobs, access to the local services and open space for many people, especially people with limited resources. There may be impacts on environmental or cultural assets: the core strategy may affect how much the area contributes to mitigating and reducing climate change. It is therefore essential that core strategies are based on thorough evidence. The evidence base should contain two elements:
Participation: evidence of the views of the local community and others who have a stake in the future of the area.
Research/fact finding: evidence that the choices made by the plan are backed up by the background facts.
Evidence gathered should be proportionate to the job being undertaken by the plan, relevant to the place in question and as up-to-date as practical having regard to what may have changed since the evidence was collected."
"The ability to demonstrate that the plan is the most appropriate when considered against reasonable alternatives delivers confidence in the strategy. It requires the local planning authority to seek out and evaluate reasonable alternatives promoted by themselves and others to ensure that they bring forward those alternatives which they consider the local planning authority should evaluate as part of the plan - make process. There is no point in inventing alternatives if they are not realistic. Being able to demonstrate the plan is the most appropriate having gone through an objective process of assessing alternatives will pay dividends in terms of an easier passage for the plan through the examination process. It will assist in the process of evaluating the claims of those who wish to oppose the strategy."
"Core strategies must be effective: this means they must be:
- deliverable;
- flexible; and
- able to be monitored."
"Core strategies should show how the vision, objectives and strategy for the area will be delivered and by whom, and when. This includes making it clear how infrastructure which is needed to support the strategy will be provided and ensuring that what is in the plan is consistent with other relevant plans and strategies relating to adjoining areas. The evidence must be strong enough to stand up to independent scrutiny."
i) "scenario and contingency planning to identify different delivery options, in the event that the actual housing delivery does not occur at the rate expected"
ii) "a risk assessment to identify obstacles and constraints to housing delivery and development of management strategies to address any risks"
"Soundness was a matter to be judged by the Inspector and the Council, and raises no issues of law, unless their decision is shown to have been "irrational" or they are shown to have ignored the relevant guidance or other considerations which were necessarily material in law."
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
THE BROAD FACTUAL BACKGROUND
"In order to promote a vibrant mix of uses and activities in Bromley Town Centre the council will work with the private sector to deliver mixed use development schemes on the Opportunity Sites identified in the Key Diagram which together will comprise:
- around 42,000 m² (gross) additional retail floor space
- around 7500 m² (gross) additional food and beverage floor space
- around 7000 m² (gross) additional business floor space
- around 1820 residential units
- around 4000 m² (gross) additional leisure floor space
- around 3500 m² (gross) additional community facilities
- up to 3 hotels"
"It will be necessary to demonstrate that the required transport and other infrastructure and community facilities can be provided to support the proposed development."
"The London Plan states that Boroughs should adopt the residential density ranges set out in the consolidated London Plan Density Matrix. As a Metropolitan Centre, Bromley is classified as a central location where higher densities will be promoted. "
"Providing residential capacity within the town centre, through mixed use development that ensures housing meets local needs including the supply of affordable housing."
"The Consolidated London Plan sets a target for the development of a minimum of 4850 dwellings in the Borough by 2016 /17, which is just under 9% of the total expected for the South East Sub region as a whole. Currently, the town centre contains a relatively small proportion of the Borough's housing stock with around 3.35% of the housing stock located within the town centre area. Bringing forward a significant proportion of the Borough's targets within the town centre could result in the Council surpassing its target."
"Development proposals should accord with the Density Matrix in the London Plan… taking into account site characteristics and the surrounding character of the town centre and adjoining residential areas."
"The council will work with Network Rail land, land and property owners and developers to secure the comprehensive development of this area to secure a mixed use development comprising:
- improved station and transport facilities;
- around 250 residential units, including provision of family housing;
- additional 2000 m² of B1 offices;
- ancillary retail uses and Food & Drink;
- 1000 m² for community uses (including a health facility);
- decked car parking to replace existing number of public parking spaces; on-site provision for residential parking and restriction on residents' ability to buy parking permits on nearby streets;
- an improved market facility if this has not by that time been relocated to a suitable new site in the town centre."
"There may be potential for the development of tall buildings in locations identified on the Key Diagram subject to design and environmental considerations."
THE CLAIMANT'S REPRESENTATIONS TO THE INSPECTOR
"The delivery of the Bromley North sites within the timescales envisaged in the AAP is important if these considerable community benefits are to be provided for the Borough and the wider objectives of the AAP are to be met. The site is also a critical part of the creation of a "Northern Gateway" to the town centre as well as providing a significant proportion of new housing and B1 floor space in the town centre."
Pointing out that the most significant capital cost would be the delivery of the replacement car park the representations continue:
" Whilst the detailed design of this car park and construction phasing is yet to be agreed its impact on scheme viability will be significant, particularly if early provision is required to enable continuance of provision of the existing car parking spaces and the release of land for the first phases of the residential development. The cost of this car park will amount to 33% of the total build cost."
"The main income generator on the site will be the proposed new housing which will predominantly be to the rear of the site. In order to deliver the benefits to the local community high-density flatted development, rather than houses, will need to be provided. On this basis homes will not be sold until whole blocks are constructed and finished which has significant cash flow implications. The proposed housing will be designed to comply with the relevant design, sustainability and the affordable housing policy requirements which also impacts upon the scheme value. On this basis a mixed-use scheme providing 250 dwellings will result in a viability where total build costs will amount to approximately 95% of the gross development value excluding any section 106 contributions, sales costs, reasonable developers profit, and land acquisition costs or development financing costs.
Linden Homes and Network Rail are committed to deliver a high-quality redevelopment that fulfils the aims of the AAP, however, a scheme providing 250 units is clearly not viable."
"A scheme providing 250 residential dwellings will, however, only achieve a density of 110 units per hectare, based on a site area of 2.26 ha. The site is situated within a "central" setting as defined by the London Plan and has an "excellent" public transport access ability level ... As such the acceptable density, based on the London Plan matrix, for a flatted scheme in this location is between 215-405 units per hectare."
"The London Plan (2008) provides an annual housing target of 485 units per annum for the borough up to 2016/17. The recently published draft replacement London Plan (October 2009) proposes to increase this annual housing target to 565 units per annum between 2011 and 2021. The housing trajectory shows that the council has had a cumulative shortfall in its housing supply since 1987."
"The design principles should reflect this guidance (i.e. a high-density development of between 215-405 units per hectare should be acceptable given the site's high PTAL rating of 6 and the fact that the redevelopment will be a flatted development). The provision of "around 250 residential units" is not considered to represent sufficient flexibility for future development to optimise the potential of the site by delivering a high quality, design led to scheme and therefore not consistent with these objectives."
The objectives referred to are set out in PPS 3.
"There is a lack of evidence to support the current allocation of residential development on the site. The council have not undertaken any work that would suggest that the scheme providing 250 units and delivering all the benefits sought by the AAP, would be viable. The only market evidence submitted in support of the AAP is the Evidence Base Report published in June 2009. The values contained within this document date from December 2006 and mid- 2007, the height of the property market, and as such this information is not considered to represent a robust evidence base given the subsequent change in market conditions and therefore represents insufficient justification to support the strategy outlined within the AAP."
"This is a considerable deficit. Any development scheme would be required to provide sufficient land value to encourage the landowners to bring the site forward for development. Clearly a negative land value will not be sufficient and the site will remain undeveloped."
"These results demonstrate that unless there is a considerable uplift in residual sales values, with build costs remaining static, the scheme will not provide a positive land value."
"However, it must be noted that this scenario is extremely unlikely to materialise in reality and the result is only included for completeness. Construction costs and sales values are highly correlated because construction activity increases in response to higher sales values leading to higher demand and therefore higher costs. As such we would not expect a substantial increase in sales values without a corresponding rise in construction costs.
Taking this into account it is clear that even as the residential market recovers a 250 unit residential scheme will not be capable of returning a positive land value."
"Policy BTC2 of the Bromley Town Centre AAP requires housing proposals " to accord with the density matrix in the London Plan" taking into account site characteristics and the surrounding character of the town centre and adjoining residential areas."
The assessment continues:
"13. It is recalled that in 2006, the Secretary of State concluded that Bromley should "adopt the density/location matrix set out in the London Plan and apply this across the whole borough to all sites". In January 2009, Bromley Council was further advised that the draft AAP did not accord fully with that decision and, therefore, that the wording "assessed against" ought to be changed to read "should accord with". That change has been made in the submission document.
14. The 2.62-hectare site is situated less than 800 metres' walking distance of a Metropolitan town centre, in a central setting typified by dense development, a mix of different uses and a public transport accessibility level of 6a; the combination of which the London Plan would make one of the most suitable sites for high-density development.
15. The usual method of calculating an appropriate residential density for the site is the "Greenwich method" by which the gross residential floor space is subtracted from the site area to give the net residential area. However, that level of detail has not been provided, given the very preliminary stage of the current development proposals.
16. Nonetheless, depending on the mix of unit sizes proposed, it is evident from the setting and level of accessibility of the site, that policy 3A.3 and the density matrix of the London Plan would support a density range of at least 140-290 units per hectare (or 650-1100 habitable rooms per hectare). For the 2.62-hectare site, the lowest range would deliver a gross residential density of 367-760 units, which is significantly higher than the 250 units proposed in the submitted AAP. Against that background, it is considered that the proposed total of 500 units is an acceptable number in strategic planning terms."
"However, there still remain issues relating to site ownership, design, layout, amenity and open space provision and parking arrangement, further work is therefore required to ensure that the proposals comply with the London Plan."
THE RESPONSE OF THE BOROUGH COUNCIL
"Importantly the phasing of the current AAP has been given a flexible delivery timescale and is assumed to be delivered in phases one or two of the AAP period (a 5 to 10 year window). This indicates that there is clearly time for land values to recover to a point which would allow a viable scheme to be delivered, in line with parameters set by the current AAP."
Even with the benefit of hindsight, Mr Lowe QC could be forgiven for commenting that that was a particularly optimistic view. It is certainly not clear from the council's response whether there was an evidential base for that proposition.
THE CLAIMANT'S OBJECTIONS TO THE AAP
THE INSPECTOR'S REPORT AND THE CLAIMANT'S ARGUMENTS
"The overall conclusion is therefore that the Council's proposals are essentially sound and provide a good basis for the future planning of the Bromley Town Centre."
"The focus of development in the town centre will be the Opportunity Sites, to be phased over a 15 year period. The development of other sites which meet the objectives of the Area Action Plan may also come forward and if so the cumulative effects of these and the opportunity sites will be taken into account. It appears to me that the targets in policy BTC 1 provide a reasonable balance between uses in the redeveloped town centre. However, I do not find the housing figures critical. If they are achieved, the overall housing targets were Bromley as a whole should readily be met."
"It was suggested at examination that to guide development a range of heights should be considered for each site. I do not share the view that this would be helpful. I accept that some representors are concerned about what are considered to be weaknesses in the planning application system, under which planning committees occasionally permit some forms of development which are not popular with residents or local societies. Regardless of this if the development is to achieve a balanced mix, ultimately the determination of the height, form and massing can only be satisfactorily decided upon when there is a detailed proposal to consider and its full impact can be assessed."
"Because of the size of the site, a full land assembly could not be achieved, less comprehensive schemes would be possible."
"Although I do not consider the comprehensive development of the site is critical in terms of deliverability over the planned period maximum visual improvement would best come from a fully integrated scheme."
"The Council has carried out a modelling exercise for the site which indicated a way forward. The scheme was dominated by a multi-storey car park and the relationship of building blocks would not appear to provide an adequate public space, or for the best location that tall buildings. However the urban design analysis suggests that around 250 units would be appropriate for this site and this was supported by a financial appraisal based on September 2007 values. I accept for the present this may no longer be economically viable but the Area Action Plan delivery period is flexible."
"There are a number of ways the site could be developed and these have to allow for the integration of the needs of various users and also respect the setting of the site. I believe there is no need at this stage to be further prescriptive than the wording of the policy itself and the key design principles set out on page 175…… if 400 housing units were to be accommodated on site I consider the height of buildings on OSA would need to be significantly increased."
"Planning Policy Statement 3 advises in Appendix B that net dwelling density is calculated by including only those side areas which will be developed for housing and are directly associated uses. From Appendix 1 of the evidence Boyer Planning and BNP Paribas Real Estate the various drawings do not convince me that the massing of development could be increased to 400 dwelling units without significant change in the balance of uses on the site."
"I, therefore, do not consider it realistic to change the wording of the present policy. The policy is flexible in that it states "Around 250". To change the policy to "At least 250 dwellings" would impose an unreasonable planning burden on the Council to accept a scheme without knowing whether in planning and design terms a particular number of units could be accommodated"
"As the developers have suggested, the key to achieving a successful development on this site is the ability to foster a good relationship between surrounding areas in terms of scale, connectivity and integration. However, according to the notes of the meeting held on 1 March 2010 with the Greater London Authority no net residential area had been defined to enable a reliable density figure to be produced in accordance with advice in PPS3."
"It also seems to me that some of the costs shown, such as those involved in the provision of affordable housing and financial obligations in a section 106 agreement may need to be re-negotiated to enable some development to take place. If over the years the market housing situation does not improve and a viable scheme cannot be agreed the Council will have to monitor likely development of the site to assess whether it should be in a later phase, or look to other Opportunity Sites to provide the required office and retail floor space. Although OSA is an important gateway site its development is not closely related to the development of other sites within the town centre."
THE DEFENDANT' ARGUMENTS
"The scale of development proposed and the mix of uses takes account of Bromley's role, its physical capacity and the capacity of transport and other infrastructure. In maintaining and or developing the recognisable cultural, historical and picturesque qualities that make Bromley the town that it is the council believe that there is further potential for the town to create its own distinctiveness and the AAP can help build on such characteristics."
"Residential and commercial developments in the town centre will be required to make an appropriate contribution to affordable housing, environmental improvements, transport, education, health and social/community facilities to be agreed with the council taking into account other policies in the AAP."
"It is argued that the housing implementation strategy should contain contingency plans in the event of certain sites not producing the number of dwelling units proposed. I have said elsewhere that I do not find the housing numbers critical to the borough as a whole. Also these housing numbers are only related to the Opportunity Sites which have been identified. I saw other sites and areas within the town centre which have not been specifically identified, probably because of their size or shape, where additional housing and other development may well occur during the plan period. There are also likely to be other sites coming up for development in the remainder of the Borough during the plan period."
CONCLUSIONS
i) The first line/row of Table 4.2, "Bromley North Station…"ii) Policy OSA (I am undecided as to whether all the Policy need be quashed);
iii) Appendix 4 "A. Bromley North Station", (again I query whether the whole Appendix need be quashed);
iv) Table 6.1 "A. Bromley North Station";
v) Table 6.2 first line/row "Site A- Bromley North Station"; and
vi) Table 6.3 Site A – Bromley North Station.