Secretary of State’s decision to approve tall tower scheme quashed for apparent bias

The Secretary of State’s decision to grant planning permission for an extensive mixed-use development on the site of a former printworks in east London has been quashed by the Planning Court on the ground of apparent bias. The Secretary of State conceded to judgment shortly after the local planning authority, Tower Hamlets Council, issued a claim challenging the decision. The land in question, the former Westferry Printworks site on the Isle of Dogs, was once used to print the Daily Telegraph and Daily Express newspapers. A proposal to redevelop the site for over 1,500 residential units, shops, offices, restaurants and community uses was the subject of a 3-week public inquiry in August 2019 after the Secretary of State recovered the appeal for his own determination. In a detailed report, the Secretary of State’s inspector recommended that planning permission be refused, identifying several breaches of the development plan. In a decision dated 14 January 2020, the Secretary of State disagreed with his inspector’s recommendation and allowed the appeal. The Secretary of State issued his decision one day before the Council was due to adopt its new Local Plan and approve a new Community Infrastructure Levy (CIL) Charging Schedule to take effect on 17 January 2020. This new Charging Schedule would have resulted in the developer becoming liable for a substantial CIL payment, if planning permission were granted on or after 17 January 2020, whereas before then, the development was “zero-rated” for CIL under the Council’s original Charging Schedule. In a pre-action letter, the Council asked the Secretary of State to explain the timing of the decision. In his response, the Secretary of State confirmed that the decision had been expedited so that it would be issued before the Council adopted the new Charging Schedule. The Secretary of State has now accepted, in response to a claim issued by the Council under section 288 of the Town and Country Planning Act 1990, that the timing of the decision would lead the “fair-minded and informed observer” to conclude that there was a “real possibility” that he was biased in favour of the developer in granting planning permission (Porter v McGill [2002] 2 AC 357). Accordingly, the Planning Court has approved a consent order, agreed also by the developer and the Mayor of London, quashing the Secretary of State’s decision to grant planning permission and remitting the appeal to be redetermined by a different Minister. Sasha White QC and Gwion Lewis acted for Towers Hamlets Council in the public inquiry and in the Planning Court challenge. Paul Brown QC acted for the developer, Westferry Developments Ltd, again in both the inquiry and the court proceedings.

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