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R (Turner) v. Secretary of State for Communities and Local Government [2015] EWHC 375 Admin

DATE: 27 Feb 2015

This case concerned a challenge to the Secretary of State’s decision to grant planning permission, conservation area consent and listed building consent for the comprehensive redevelopment of the Shell Centre site, between Waterloo Station and the Thames, through the construction of 8 new buildings ranging from 5 to 37 storeys, to provide 220,000m2 of floorspace comprising offices, up to 877 residential units, retail,  leisure and community uses. 

The permission and consents had been granted in June 2014, following the Secretary of State’s decision to call in the applications for his own determination.   

In the High Court, the Claimant argued that the Secretary of State’s decision was unlawful for a number of reasons, including:  the failure of the applicant (Braeburn Limited) to disclose the viability assessment on which the quantum of affordable housing had been based; misinterpretation of para 74 of the NPPF; and the Inspector’s conduct of the inquiry, which was said to have demonstrated bias. 

These arguments were all rejected by Collins J.   Following the decision of Ouseley J in R(Bedford & Clare) v LB Islington [2002] EWHC 2014 (Admin), the judge accepted that “it must be open to applicants for planning permission to submit confidential material in support of their applications”.  The Secretary of State was entitled to conclude that the offer of affordable housing was acceptable, on the basis of evidence that the Braeburn’s confidential viability assessment had been independently appraised and confirmed by BNP Paribas.  The requirement in para 74 of the NPPF that any loss of open space must be “replaced by equivalent or better provision in terms of quantity and quality” did not mean that the replacement had to be equivalent or better in terms of both quantity and quality, which the judge regarded as an “over-mechanistic approach”.  While he was critical of certain aspects of the Inspector’s conduct, from which he hoped that lessons would be learnt, Collins J did not consider that the test for establishing apparent bias was established, or that the Claimant had been materially prejudiced in his ability to advance his case at the Inquiry.  The application was therefore dismissed.

Paul Brown QC acted for Braeburn both at the call-in inquiry and in the High Court.

A copy of the judgment can be found here.