“Redevelopment of site to provide a 8,292 square metre multi purpose community sports centre and swimming pool, 902 square metres of retail/commercial/restaurant/bar floor space (use Classes A1, A 2, A3 and A4), 329 residential units and underground part car parking for 56 cars contained within a 43 storey tower measuring 144.3 metres in height and part 7, part 8 storey block with roof terraces and courtyard.”
"In the exercise, with respect to any buildings or other land in a conservation area, of any functions under or by virtue of any of the provisions mentioned in subsection 2, special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area."
"The desirability of preserving or enhancing the area should also, in the Secretary of State's view, be a material consideration in the planning authority's handling of development proposals which are outside the conservation area but would affect its setting, or views into or out of the area."
“15.141 The issue comes down to weighing tangible, local community benefits, which it is argued are achievable only through development of the form and intensity proposed, against the harm that would be caused to heritage assets of acknowledged local, metropolitan and national importance. 15.142 In recommending to the Secretary of State that planning permission should not be granted I am mindful that the Doon Street site is well located and capable, in my opinion, of accommodating development in a form more sensitive to its situation and of a kind better able to meet the requirements of development plan policies concerned with the protection of heritage assets. Insofar as it can be separated from the form that the development would take and the unwelcome consequences of so tall a building, I do not criticise the scheme’s architectural quality. The delivery of benefits of the kind proposed to the local community is an important consideration but it is not one that should, in my opinion, be allowed to override well-founded planning objections firmly based in policy.”
“16.1 In summary, the Doon Street site presently makes little contribution to the character of the South Bank but has considerable potential to satisfy the aims and objectives of strategic and local planning policies. The application which is the subject of this report is concerned with only a part of the Doon Street site, but one which would accommodate the greatest amount of built development. 16.2 The residential element of the scheme would make a significant contribution towards meeting the strategic, 10-year housing target for Lambeth. The scheme would provide no affordable housing; but the Applicants have already made a significant contribution to social housing in the area, of an amount that would roughly match the deficiency of the development proposed. The provision of housing as part of a mixed scheme of development may be regarded as a benefit. 16.3 A further and particular benefit argued in support of wholly private housing is its ability to fund the provision and operation of a sports complex for which a need has been identified. The Doon Street site is recorded in the Lambeth UDP as offering an opportunity to meet this need. Other, incidental, benefits would flow from development of the application site. 16.4 The site is well located to support a mix of uses and the uses proposed would be compatible with objectives for the South Bank and Waterloo areas. No particular issues arise in connection with town centre policies or guidance and development of the intensity proposed would not appear out of place in this part of central London. There are already tall buildings in this part of London that contribute to its character, but they are not so prevalent as to determine its identity or provide a compelling precedent for development of greater intensity. 16.5 The Doon Street site may well be capable of accommodating a tall building within parameters established by development plan policies and by national policy and guidance. However, the tower element of the scheme proposed would impose itself on both its immediate and wider context. It would appear prominent and disturbing within a view from St James’s Park identified as having significant townscape value and would conflict with policies designed to safeguard London’s strategic townscape views. 16.6 In addition, a tower of the height proposed would detract unacceptably from the setting of one of London’s most important public buildings, the Grade I listed Somerset House, and the settings of other buildings of special architectural or historic interest. Through its presence and prominence, the tower would also harm the settings of conservation areas in the Borough of Lambeth and the City of Westminster. 16.7 Even if linked with benefits that might accrue from development of the two other parts of the Doon Street site (PA2, PA3), in accordance with resolutions adopted by Lambeth Council, the scheme which is the subject of planning application PA1 would result in harm that would not be outweighed by benefits the scheme could secure. 16.8 The high quality of the design is a consideration to be taken into account, to the extent that it can be appreciated in local and distant views. However, I see no reason why an alternative scheme should not seek to achieve a similar high standard of design in a way more respectful of its surroundings. 16.9 The balance of my conclusions is that planning permission should be withheld.”
“If there is one principle of planning law more firmly settled than any other it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”
“I hope I am not oversimplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved … on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication.”
“The statutorily desirable object of preserving the character or appearance of an area is achieved either by a positive contribution to preservation or by development which leaves character or appearance unharmed that is to say preserved.”
“My Lords, I have no hesitation in agreeing with this construction of section 277(8). It not only gives effect to the ordinary meaning of the statutory language; it also avoids imputing to the legislature a rigidity of planning policy for which it is difficult to see any rational justification. We may, I think, take judicial notice of the extensive areas, both urban and rural, which have been designated as conservation areas. It is entirely right that in any such area a much stricter control over development than elsewhere should be exercised with the object of preserving or, where possible, enhancing the qualities in the character or appearance of the area which underlie its designation as a conservation area under section 277. But where a particular development will not have any adverse effect on the character or appearance of the area and is otherwise unobjectionable on planning grounds, one may ask rhetorically what possible planning reason there can be for refusing to allow it. All building development must involve change and if the objective of section 277(8) were to inhibit any building development in a conservation area which was not either a development by way of reinstatement or restoration on the one hand ('positive preservation') or a development which positively enhanced the character or appearance of the area on the other hand, it would surely have been expressed in very different language from that which the draftsman has used.”
“66(1) In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.”
“17. As regards designated views, objections to the proposed tower relate only to LPC/LVMF Townscape View 26: St James’s Park Bridge to Horse Guards Road. The Inspector has assessed the impacts of the proposed tower against the relevant tests identified in the LVMF (IR15.21-15.28), and has concluded that even if the Doon Street tower were to be constructed, the landscape of St James’s Park would continue to dominate the view (IR15.29). The Secretary of State agrees with this conclusion.She disagrees, however, with the Inspector’s judgement that the delicate balance between landscape and buildings would be seriously damaged by the appearance of the Doon Street tower (IR15.29), or that the tower would appear disturbingly prominent and oppressive in scale (IR15.21). She considers that the impact on this view would not be as great as the Inspector fears, and would not be unacceptable. In reaching this conclusion, she has taken into account the high quality of the design of the building which demonstrates technical virtuosity, imagination and keen attention to detail (IR15.26). Unlike the Inspector (IR15.27) she considers that the high quality of design would be a relevant factor even at this distance,as the form of the building would still be evident. She has taken into account the view of the Commission for Architecture and the Built Environment that the form of the tower reduces its apparent scale and produces an elegant form with an interesting roofline, and that the tower works well in this context (CD15/5, paras 2.3.9 and 2.3.11). She has further taken into account the view of the Greater London Authority and Lambeth Borough Council (IR7.71), that, given the presence of the city in the backdrop of the view and the fact that the Park is in an important city location, the development proposed would not have an unacceptable impact. 18. The Secretary of State has also had regard to the fact that planning permissions have already been granted for two tall buildings that would be visible in this designated view (the Bishopsgate Tower and the IPC Tower), although with limited visual impact on it (IR15.19).”
“23. Given her conclusions on the impact of the tower on the designated strategic view from St James’s Park (paragraphs 17-18 above), the Secretary of State disagrees with the Inspector’s conclusion at IR15.60 that the proposed development would fail to preserve or enhance the setting of the Royal Parks Conservation Area.”
“15.69 The tower would, by reason of its height, scale, distinctive form and elevational treatment be readily distinguishable from the Royal National Theatre. However, the sheer bulk of the tower, to which height would be the greatest contributor, would overwhelm the listed building. It would intrude upon its setting in a way unlikely to have been anticipated when the theatre was conceived. Its civic and cultural significance would, as a result, be greatly diminished. [7.82, 8.102-8.106, 11.44, 11.46, 11.50] 15.70 In considering the effect of the tower element on the setting of the RNT, I have taken into account the quality of its design and the benefit to aspects of the setting of the theatre that would follow from development of a vacant and underused site. However, these are not considerations that outweigh what I conclude would be the harmfully intrusive effect of the development on the building’s setting.”
“28. As regards the Royal National Theatre, the Secretary of State has taken into account that the theatre building is not seen in isolation of other development and that other buildings assume some prominence in local views (IR15.67). She has also taken into account the high quality of the proposed design, and the benefit to aspects of the setting of the theatre that would follow from the development of a vacant and underused site (IR15.70), as well as the view expressed by the Royal National Theatre that the tower would not detract from the setting of the listed building (IR12.6). She agrees with the Inspector at IR15.69 that the tower would be readily distinguishable from the Royal National Theatre, and would intrude on its setting, but disagrees that the effect would be to ‘overwhelm’ the listed building, or that the civic and cultural significance of the Royal National Theatre would be greatly diminished (IR15.69). Overall she considers that the development does preserve the setting of the listed building.”
“The Royal Festival Hall is listed in Grade I. It has historical and cultural associations with the South Bank but is restrained in its outward appearance. Its Grade I status suggests a particular sensitivity to changes within its setting. The Doon Street tower would be visible in association with the Royal Festival Hall from many viewpoints, most obviously from the Jubilee Footbridge, to the west. From here and from other places, it would be seen to dominate the Royal Festival Hall. Accordingly, I conclude that the development proposed would, by reason of the height and prominence of its tower, fail to preserve an appropriate setting for this Grade I listed building. [2.9, 7.81, 7.83, 7.85, 8.45, 8.107, 11.11]”
“27. The Secretary of State has carefully considered the effect on the Royal Festival Hall, and the Inspector’s comments at IR15.89. She considers that the height and prominence of the tower would have an impact on the setting, but that this impact would not be unacceptable, and would not fail to preserve the setting of the Royal Festival Hall. In reaching this view, she has had regard to the view expressed by the Chief Executive of the South Bank Centre (IR11.11) that the Doon Street scheme would result in the area’s further enhancement and that the tower element of the scheme would not be detrimental to the Royal Festival Hall but would form part of a development that would complement the architecture, urban design and dynamism of the South Bank. She has further taken into account the views of the Commission for Architecture and the Built Environment that the Royal Festival Hall is not experienced in isolation and has a dynamic relationship with the neighbouring buildings and urban context, and that the impact of the proposal does not raise design concerns in this respect (CD15/5, para. 2.3.14).”
“15.152 I have addressed the issues identified and agreed by the main parties at the Pre-Inquiry Meeting held in December 2007. In my opinion, those issues incorporate all those matters about which the Secretary of State wished to be informed in order to determine the planning application. To the extent that alternative forms of development might be achievable, I have not dwelt upon these as they are subject to infinite variation and raise issues that go beyond those that are required to be addressed in order to establish the acceptability of the scheme which is the subject of this report. The application site is clearly suitable for development and I would expect alternative proposals to come forward for consideration if a decision is made in accordance with my recommendation.”
“The high quality of the design is a consideration to be taken into account, to the extent that it can be appreciated in local and distant views. However, I see no reason why an alternative scheme should not seek to achieve a similar high standard of design in a way more respectful of its surroundings. ”
"There is certainly no legal principle of which I am aware of that permission must be refused if a different scheme could achieve similar benefits with a lesser degree of harmful effects. In such a situation, permission may be refused but it does not have to be refused. The decision-maker is entitled to weigh the benefits and the disbenefits of the proposal before him and to decide (if that is his planning judgement) that the proposal is acceptable, even if an improved balance of benefits and disbenefits could be achieved by a different scheme. As Miss Lieven pointed out and as is obvious, and certainly to anyone with experience of the planning system, a refusal of permission will inevitably lead to delay and may mean considerable uncertainty about what results. A fresh application to the local planning authority would be required, by which time circumstances may have changed. The economics of redevelopment may be different, but the attitude of the local planning authority may not be exactly the same as before, and so on. Fresh planning judgements would have to be made on a new scheme. Inevitably the benefits of redevelopment would be later in coming. I therefore reject any proposition that the Secretary of State could logically only decide to refuse permission."
“15.101 The Applicants’ case for not providing affordable housing is based on the premise that the development would deliver a sports centre and swimming pool in accordance with a site specific Major Development Opportunity identified in the Lambeth UDP (MDO 103) and at no public costs and under a financial arrangement intended to provide for the operation and maintenance of the facility for a period of 50 years. That, the Applicants argue, could not be achieved without the income generated by 329 units of private, open-market housing. The provision of any affordable housing would, it is said, undermine the financial basis of the scheme and preclude provision of the sports centre and swimming pool. [6.17, 6.20, 7.15, 7.16, 8.10, 8.26, 11.7, 11.15, 11.22, 11.35, 11.38, 11.40, 11.44, 11.55] 15.102 Arrangements by which the sports centre and swimming pool facility would be provided and operated are included in a section 106 agreement. Lambeth Council accepts that the omission of affordable housing falls within the exception provided for by UDP policy 16. The Greater London Authority is content that the Applicants have made a case for not providing affordable housing, having regard to the flexibility that LPC policy 3A.10 provides. The GLA is also satisfied that the development meets the Mayor’s guidance on affordable housing because it would carry the cost of providing social infrastructure. [3.6, 3.22, 7.1, 7.12, 11.18] 15.103 A financial appraisal of the scheme, undertaken by the Applicants, has been independently assessed on behalf of the GLA and Lambeth Council. Its conclusion that affordable housing cannot be provided without adversely affecting the scheme’s viability has been accepted. It is also significant that both the strategic and local planning authorities, both of whom appear strongly committed to securing affordable housing, are prepared to forego the provision of more than 160 affordable dwellings in order that a local deficiency in sports and leisure facilities can be addressed. [6.17, 6.21, 7.15, 7.16] 15.104 English Heritage, in objecting to the proposal, point out that viability depends on the receipt of grants, or `soft funding`, before commercial funding for the development can be obtained. The Applicants confirm that no such funding has been obtained. In the absence of viability, English Heritage argue, the scheme would either not proceed, notwithstanding a grant of planning permission, or the Applicants might return with financially more ambitious and environmentally more damaging proposals. [8.10, 8.11, 8.12] 15.105 Third party supporters focus on the benefits of the sports centre and swimming pool. Where comments are made, there is recognition of the need for cross subsidy from the profitable elements of the scheme. Many third party objectors acknowledge the benefits of the development but are concerned at the omission of affordable housing. Attention is drawn to a mixed use scheme elsewhere in the borough where leisure facilities have been provided alongside housing, 40% of which is affordable. [11.3, 11.8, 11.13, 11.18, 11.34, 11.38] 15.106 Comparison is also made by objectors between the current priorities of Coin Street Community Builders and the purpose for which they were originally formed. This included the provision of social housing. Lambeth, it is pointed out, is currently failing to meet its affordable housing targets while homelessness increases in the borough. In 2007 only 85 applicants were housed from Lambeth’s register of 11,000 households requiring accommodation. An analysis of housing supply and availability in the Waterloo area indicates that the supply of private housing is increasing at a faster rate than affordable housing. [11.40, 11.54, 11.60] 15.107 Looked at in isolation, the provision of 329 dwellings within the next ten years is important to achieving target established by its own policies and by the GLA. The South Bank is an attractive area in which to live. It is well situated in relation to central London and highly accessible. Accepting that there may be fluctuations in the housing market, the South Bank area is likely to maintain its attraction for particular sectors of the community and to offer choice, as advocated by Planning Policy Statement 3 Housing (PPS3). [5.8, 6.8, 7.11, 11.8] . . . . . . 15.112 In conclusion, therefore, the development proposed would meet the aims and objectives of national, strategic and local plan policies concerned with housing and the scheme’s housing element would contribute significantly towards meeting a need for additional housing in Lambeth, albeit wholly within the private housing sector. 15.113 The Applicants reasons for omitting affordable housing withstand examination, notwithstanding criticisms of the financial robustness of the scheme. In arriving at this conclusion, I am conscious that there are factors that might, in times of economic uncertainty, affect the basis upon which viability is assessed. On balance, the provision of housing of the amount proposed is a benefit to be weighed in favour of the proposal. . . . . . . 15.135 The viability of the scheme has been tested by the Applicants and jointly by Lambeth Council and the GLA. There remain uncertainties concerning the availability of grants which might need to be resolved before a commitment to implement the scheme for which planning permission is sought. No other viability appraisal has come forward to demonstrate that the scheme would not be viable, notwithstanding the value of the residential element, or that it would also be viable if affordable housing was provided. [7.16]”
“33. The Secretary of State has carefully considered the case for not providing affordable housing. This rests on the fact that the development would deliver a sports centre and swimming pool, in accordance with a site specific Major Development Opportunity, at no public cost, and with the operation and maintenance of the facility funded for 50 years. A financial appraisal of the scheme has been independently assessed on behalf of the GLA and Lambeth Council, who have accepted its conclusion that affordable housing cannot be provided without adversely affecting the scheme’s viability (IR103). The Secretary of State sees no reason to disagree with this conclusion. For the reasons given in IR15.101-15.111, she agrees with the Inspector at IR15.113 that the reasons for not providing affordable housing as part of the scheme withstand examination. She also agrees that the omission of affordable housing in this case falls within the exceptions provided for in UDP and LPC housing policies because of the provision of social infrastructure (IR15.102), and considers therefore that the lack of provision of affordable housing is not in conflict with the development plan.”
"more significant, because it was a fully reasoned decision of the Court of Appeal, was another planning case, Simplex GE (Holdings) v Secretary of State for the Environment …. The Secretary of State in rejecting the planning appeal had mistakenly thought that the council had carried out a study relevant to the inclusion of the site in the Green Belt, whereas the study related only to what uses should be made within the Green Belt designation. The decision was challenged on the basis that "as a result of the error of fact" the minister had "taken into consideration matters which he was not entitled to consider": p 322. The Court of Appeal accepted that formulation, holding that the error was "undeniably a significant factor in the decision-making process"
"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. . . Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Boardcase. ([1999] 2 AC 330 .) First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence of a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive part in the tribunal's reasoning."
“15.145 I set out earlier in this report, a summary of obligations contained in a section 106 agreement submitted at the Inquiry. Its most important provision is in the linkage it proposes to establish between the two main components of the scheme, namely the residential element and the leisure centre. English Heritage express concern that the agreement does not guarantee payment of the future running costs of the leisure centre, leaving open the prospect of it ceasing to operate through loss of funding. The annual payment is defined in the agreement as£412,000 , not index linked and payable for 49 years. English Heritage consider that the matter should be addressed by means of a bond. [8.112, 14.2] 15.146 Lambeth Council points out that, should the Applicants default on payment to the operator, under the terms of the agreement payment is then due to the Council. Should payment not be made, the Council could enforce against the Applicants, or any successor in title, in the knowledge that the application site constituted a substantial asset. English Heritage are concerned that Coin Street Community Builders might dispose of their interest or manage the asset in a way that reduced its value. 15.147 In broad terms, the section 106 agreement meets the test for planning obligations set out in B5 of Annex B to Circular 05/2005 Planning Obligations. Setting aside the issue of a bond, I consider that its provisions fairly and reasonably relate in scale and kind to the development proposed. I can offer little legal or financial insight into the question of whether a performance bond is required in circumstances where a decision to grant planning permission might be influenced by certainty that a particular public benefit would be provided and retained for a long period. 15.148 The DCLG publication Planning Obligations: Practice Guidance, published in July 2006, offers advice on performance bonds, or sureties, and gives examples of circumstances in which they might be used. While it might be possible to speculate on the value of the Doon Street site and the development it could support, a great deal turns on whether that value would be maintained for the duration of the developer’s commitment, notwithstanding the fact that the level of that commitment would, in the absence of index linking, almost certainly reduce year by year. 15.149 Given the premise on which the scheme is based, I consider that a performance bond would provide the level of certainty that English Heritage suggest is missing from the agreement. The Secretary of State might wish to take further advice or seek additional information on the matter.”
“43. The Secretary of State has considered the arguments that have been put forward in respect of whether a performance bond is required (IR15.145-146). She is content that the planning obligation makes adequate arrangements for payment of the money required to secure the future of the leisure centre over a 50 year period, thereby ensuring ongoing operation of this significant community benefit.”
“In his report the inspector classifies the applicants, inter alios, as “interested persons,” a classification which is clearly justified by the facts. They were persons whom the appointed person in his discretion had allowed to appear at the inquiry and make representations in relation to the subject-matter of the inquiry, which representations had to be recorded by the inspector and transmitted with his, the inspector's, findings of fact and conclusions to the Secretary of State with a view to the Secretary of State accepting or rejecting those findings of fact and conclusions. Such persons have, in my judgment, impliedly the right that the Secretary of State in considering those representations shall act within the powers conferred on him by the statute and shall comply with the relevant requirements of the statute, in just the same way (as is conceded to be the case) as has a person who makes representations at the inquiry being a person on whom the Secretary of State has required notice of the inquiry to be served. I thus conclude that no valid differentiation can be made between a person who appears at an inquiry and makes his representations having had notice of the inquiry at the insistence of the Secretary of State and a person who appears and makes his representations by permission of the appointed person.”
“The appellant is not a person whose own property is directly affected by the adoption of the local plan. On the other hand we readily accept that, as someone who lives near the site and uses it, he is not ‘a mere busybody’. It may be that, had the appellant lodged an objection to the plan and appeared at the inquiry, he would have fallen into the category of an ‘aggrieved person’ if he could have averred a genuine grievance of the kind contemplated by the section. (The equivalent in the Scottish legislation to s. 288.) The difficulty for the appellant in this case, however, is precisely that he did not object at the proper time and did not take part in the public inquiry at which issues relating to the draft plan were explored. Counsel accepted that the appellant's failure to use the prescribed statutory procedures caused serious difficulties for the appellant in now arguing that he is aggrieved … The appellant in this case … is a member of the public who has an interest in what happens to the site because it is near him and he uses it, but on the other hand he did not avail himself of the opportunities which Parliament has afforded for participating in the process for adopting the local plan. We do not suggest, of course, that someone who has not objected to a draft plan or taken part in an inquiry can never be ‘a person aggrieved’. On the other hand, there is a difference between feeling aggrieved and being aggrieved: for the latter expression to be appropriate, some external basis for feeling ‘upset’ is required — some denial of or affront to his expectations or rights …. The particular circumstances of any case require to be considered and the question must always be whether the appellant can properly be said to be aggrieved by what has happened. In deciding that question it would usually be a relevant factor that, though no fault of counsel, the appellant has failed to state his objection at the appropriate stage of the procedure laid down by Parliament since that procedure is designed to allow objections and problems to be aired and a decision then to be reached by the Council. The nature of the grounds on which the appellant claims to be aggrieved may also be relevant.”
“The first question that arises is: who indeed can apply to the court under s.288? The judge considered, and there is before us, the case of Times Investment Ltd v Secretary of State for the Environment (1991) 61 P. & C.R. 98 . In my judgement, the upshot of that authority (which of course is binding on us) is that persons aggrieved under s.288 are either (1) the appellant in the planning process, or (2) someone who took a sufficiently active role in the planning process—that is to say, probably a substantial objector, not just somebody who objected and did no more about it—or (3) someone who has a relevant interest in the land. It will apparent that EE Ltd can only qualify as a person aggrieved under the third category.”
“132. That leaves the issue of standing. As to that, it seems to me that there is an important distinction to be drawn between, on the one hand, a person who brings proceedings having no real or genuine interest in obtaining the relief sought, and on the other hand a person who, whilst legitimately and perhaps passionately interested in obtaining the relief sought, relies as grounds for seeking that relief on matters in which he has no personal interest. 133. I cannot see how it can be just to debar a litigant who has a real and genuine interest in obtaining the relief which he seeks from relying, in support of his claim for that relief, on grounds (which may be good grounds) in which he has no personal interest. 134. It seems to me that a litigant who has a real and genuine interest in challenging an administrative decision must be entitled to present his challenge on all available grounds.”