Affordable and Social Housing Plan was Valid

A recent case demonstrated a robust attitude to the needs of urban regeneration and the economic pressures bearing on residential land development in London.

West Kensington Estate Tenants and Residents Association & Anor v London Borough of Hammersmith and Fulham & Ors [2013] EWHC 2834 (Admin) (09 October 2013) concerned land (“the Opportunity Area”) straddling the borough boundaryand bounded by Warwick Road and the West London railway line to the east, West Cromwell Road (the A4) to the north, North End Road to the west, and Old Brompton Road and Lillie Road to the south.

In this claim for judicial review the claimant challenged the Earl’s Court and West Kensington Opportunity Area Joint Supplementary Planning Document (“the SPD”), which was adopted in March 2012.

The main contentions were these: in ground 1, that the SPD ought to have been prepared as an area action plan under regulation 6 of the Town and Country Planning (Local Development) (England) Regulations 2004 (“the 2004 regulations”); in ground 2, that when LBHF and RBKC adopted the SPD they erred in their approach to the provision of affordable housing and, in particular, in the use they made of a study of economic considerations, the “Estates Regeneration Economic Appraisal” (“the EREA”); in ground 4, that the SPD does not conform with the development plan in its provisions for social housing; and in ground 5, that the SPD ought to have been subject to strategic environmental assessment (“SEA”) complying fully with the regime for SEA, but was not.

On 30 March 2012 one of the local authorities Hammersmith and Fulham (“LBHF”) granted planning permission on an application made by EC Properties Limited for planning permission for a residential development to replace the Seagrave Road car park. On 3 September 2012 LBHF decided to enter into a conditional land sale agreement with EC Properties Limited, in which it was agreed that the housing estates would be included in a comprehensive redevelopment in the Opportunity Area. EC Properties Limited applied to both LBHF and RB Kensington & Chelsea (“RBKC”) for planning permission for the redevelopment of a site of 28 hectares, including the estates. In LBHF’s area 5,845 new “residential units” were proposed, of which 589 were intended to be social rented and 676 of intermediate tenure. In RBKC’s area 930 “residential units” are proposed, of which 64 will be affordable, in intermediate tenure.

Both LBHF and RBKC had resolved to grant planning permission for these proposals. Decision notices had not yet been issued because the parties were negotiating a planning agreement under section 106 of the Town and Country Planning Act 1990 (“the 1990 Act”).

The central question in that ground of the claim was whether the SPD was not a supplementary planning document but an area action plan, unlawfully produced outside the statutory system for the preparation of a development plan document.

Supplementary planning documents and supplementary planning guidance are not components of the development plan. They are always subordinate to the plan. Their purpose is to give additional guidance relevant to the provisions of the plan and consistent with them. Their subservience to the plan was emphasized in paragraph 6.1 of the Government’s PPS 12.

Critical to the Court’s finding for the developer and the authorities was that the SPD was not the document that identified the area with which it was concerned, or any part of it, as an area of “significant change”. That had already been done in the development plan. By the time the SPD came to be adopted, the requirement for urban regeneration in the Earl’s Court and West Kensington Opportunity Area had been firmly set in the development plan – in the London Plan and the two core strategies.

On the second ground that the SPD had to conform with development plan policy for affordable housing in the London Plan and the core strategies,it was clear that none of the options in the EREA would achieve the Plan’s targets for affordable housing. The proportion of affordable housing in Option 1 would be 23%; in Option 2, 25%; in both of the sub-options in Option 3, 10%; and in Option 4, 11%

The policies for affordable housing in the development plan – in particular, Policy H2 of LBHF’s core strategy and Policy CH2 of RBKC’s – sought, in Hammersmith and Fulham, 40% of new housing to be provided as affordable housing, and in the royal borough 50%. However crucially, the policies did not contain absolute requirements for a given amount of affordable housing in any particular scheme or on any particular site. They expressed strategic aims, and they set out relevant factors to enable authorities to judge how much affordable housing should be sought from developers, scheme by scheme and site by site. Thus they promote a consistent approach. But they allowed for the contingencies of individual schemes and individual sites. They expressed an aspiration for the stated proportions of affordable housing, but acknowledged economic reality. Underlying them was the recognition that developers will not be able to provide more affordable housing than is viable, and that to expect them to do so would be counter-productive.

On ground 3 Social Housing was simply another form of affordable housing and subject to similar considerations – including it’s implications for the viability of the Scheme.

On ground 4, the appropriate content of an environmental report, if one had to be prepared, will depend on the place of the plan or programme in question in any hierarchy of plans and programmes to which it belongs. This was, in effect, what article 4(3) of the SEA directive provided. There is no need for assessment to be duplicated at different levels in the hierarchy.

When the SPD was prepared there was neither any legal requirement nor any justification for a duplication of the assessment already undertaken in the SEA for the core strategies.

So the challenge to the decision was defeated on all 4 counts.

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