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Earl's Court SPD challenge rejected

DATE: 10 Oct 2013

Lindblom J has dismissed a challenge by two tenants associations to the decision of the London Borough of Hammersmith and Fulham and the Royal Borough of Kensington and Chelsea to adopt a Joint Supplementary Planning Document for the Earl’s Court and West Kensington Opportunity Area. The SPD provides detailed guidance in respect of the proposed redevelopment of the Earl’s Court site and adjoining council-owned estates and other land. The site is identified as an opportunity area in the London Plan and in the Boroughs’ respective Core Strategies, and there are proposals to build over 6,000 new homes together with new shops, offices and community facilities within the 37 hectare site.

The Claimants alleged that SPD should properly have been adopted as an area action plan as part of the Boroughs’ development plans, relying on the decision of Wilkie J in R (Wakil) v Hammersmith and Fulham London Borough Council [2012] EWHC 1411 (Admin). Lindblom J rejected that argument, finding that the SPD did not identify the area “as an area of significant change” for the purposes of regulation 6(2)(a) of the Town and Country Planning (Local Development) (England) Regulations 2004, because that identification had taken place in the London Plan and the Core Strategies. The Judge rejected the argument that the word “identifies” in that regulation could mean “confirms the identification of” or “acknowledges”. Thus when the Boroughs adopted the SPD, “the development plan process had already achieved the identification of the relevant area of significant change”.

The Judge accepted the Claimants’ argument that the SPD had to be subject to strategic environmental assessment. His lordship found that the SPD was “required” for the purposes of Article 2(a) of the SEA Directive, because both Core Strategies anticipated the provision of detailed guidance through the SPD to “finish the framework of policy and guidance within which proposals for development in the Opportunity Area would be considered”. Applying HS2 Action Alliance Limited and others v Secretary of State for Transport [2013] EWCA Civ 920, the Judge found that the SPD did “set the framework for future development consent”, because it was likely to influence decisions on proposals for the Opportunity Area. However, his went on to find that the requirements of the SEA Directive had been substantially complied with, because other options for the Opportunity Area had been considered and rejected at an earlier stage of the development plan process. His lordship found that there had been an error in that a statement of compliance in accordance with regulation 16 of the Environmental Assessment of Plans and Programmes Regulations 2004 had not been published, but that the remedy for that error should be a mandatory order requiring the production of such a statement rather than the quashing of the SPD.

Lindblom J also rejected grounds of challenge relating to the way in which affordable housing had been dealt with in the SPD.

The judgment is available here.

Russell Harris QC and Richard Turney acted for the two Boroughs.
Christopher Katkowski QC and Scott Lyness acted for EC Properties Limited, which is promoting a scheme for the redevelopment of the area.
David Elvin QC acted for the Mayor of London.