“1. Non Standard reason for refusal Design The development, by virtue of its overall scale, bulk of built development and associated infrastructure works, height, density, site coverage and lack of landscaping and screening, is considered to constitute an over-development of the site, resulting in an unduly intrusive, visually prominent and incongruous form of development, which would fail to respect the established character of the North Hillingdon Local Centre or compliment the visual amenities of the street scene and openness and visual amenity of the Green Belt, the wider open context and would mar the skyline, contrary to Policies BE1 and EM2 of the Hillingdon Local Plan: Part One - Strategic Policies (Nov 2012), Policies DMHB 10, DMHB 11, DMHB 12, DMHB 14, DMHB 17, DMEI 6 of the Local Plan: Part 2 - Development Management Policies (2020); Policy SA 14 (Master Brewer and Hillingdon Circus) of the Local Plan: Part Two - Site Allocations and Designations (2020), Policies 7.4, 7.6, 7.7 of the London Plan (2016), Policies D1, D3, D4, D8 and D9 of the London Plan (Intend to Publish version 2019) and the NPPF (2019). ….. 5. Non Standard reason for refusal Air Quality The submitted Air Quality Assessments have failed to provide sufficient information regarding Air Quality, moreover the information submitted is not deemed to demonstrate the proposals are air quality neutral and given that the site is within an Air Quality Focus Area, the development could add to current exceedances in this focus area. The development is contrary to Policy DMEI 14 (Air quality) of the Local Plan: Part 2 - Development Management Polices (2020), Policy EM8 of the Local Plan Part 1 (2012), Policy 7.14 (Improving Air Quality) of the London Plan (2016), Policy SI 1 of the draft London Plan - Intend to Publish (December 2019) and the NPPF (February 2019).”
“Any proposal for a high building or structure will be required to respond to the local context and satisfy the criteria listed below. It should: i) be located in Uxbridge or Hayes town centres or an area identified by the Borough as appropriate for such buildings; ii) be located in an area of high public transport accessibility and be fully accessible for all users; [and] iii) be of a height, form, massing and footprint proportionate to its location and sensitive to adjacent buildings and the wider townscape context. Consideration should be given to its integration with the local street network, its relationship with public and private open spaces and its impact on local views;”
“Appropriate locations for tall buildings will be defined on a Character Study and may include parts of Uxbridge and Hayes subject to considering the Obstacle Limitation Surfaces for Heathrow Airport. Outside of Uxbridge and Hayes town centres, tall buildings will not be supported. The height of all buildings should be based upon an understanding of the local character and be appropriate to the positive qualities of the surrounding townscape.”
“would not be located in Uxbridge or Hayes town centres or an area identified by the Borough as appropriate for a high building and would be located in an area with a low PTAL (Level 2-3) and would also be of a height, form, massing and footprint which is considered to be out of proportion to its location, adjacent buildings and the wider townscape context.”
“The Committee supported the officer’s recommendation and welcomed refusal reason given on air quality. It was emphasised that air quality could not be compromised. Concerns were raised regarding the size of the development, air pollution, and, overall, Members considered that the application was out of character with the local area.”
“B Applications for tall or large buildings should include an urban design analysis that demonstrates the proposal is part of a strategy that will meet the criteria below. This is particularly important if the site is not identified as a location for tall or large buildings in the borough’s LDF. C Tall and large buildings should: a generally be limited to sites in the Central Activity Zone, opportunity areas, areas of intensification or town centres that have good access to public transport b only be considered in areas whose character would not be affected adversely by the scale, mass or bulk of a tall or large building…”
“GLA officers recognise that the proposed tall buildings are not in a location where they are supported in principle by Local Plan Policy DMHB 10 and that this is a policy conflict with parts (i) and (ii) of that policy, which state that tall buildings should be located within Uxbridge and Hayes town centres and areas of high public transport accessibility respectively. This is addressed in the ‘planning balance’ section of this report. They do however comply with the locational requirements of London Plan Policy 7.7, being in a town centre with good access to public transport … The principle of tall buildings in this location would also conflict with the locational component of Intend to Publish London Plan Policy D9 (Part B), which states that Local Plans should identify suitable locations for tall buildings. This does not form part of the statutory development plan but is a material consideration in the determination of this application.”
“In conclusion, the scheme is considered to be in conflict with part of Local Plan Policy DMHB 10 and Intend to Publish London Plan Policy D9 in respect of the principle of tall buildings in this location. This is addressed in the ‘planning balance’ section of this report. The proposal is otherwise considered to be compliant with the requirements of the London Plan Policy 7.7, Policies D9 […] of the Mayor’s Intend to Publish London Plan ….”
“Residents and users of the scheme would be sufficiently protected from air quality impacts arising from surrounding roads… The applicant’s Air Quality Assessment has been reviewed by GLA officers and is supported. The development would be air quality neutral, subject to the mitigation measures secured…”
“In terms of impact on future residents of the development, the Air Quality Assessment demonstrates that the only exceedance of the Air Quality Objective (AQO) limit for nitrogen dioxide is at the outer boundary of the site (40.52ug/m3), whilst at the nearest residential receptor it would be 35.25ug/m3. For particulate matter PM10, this would be an annual mean of 16.73-18.68ug/m3, so also within AQO limits. As such the Air Quality Assessment concludes that the air quality conditions do not constrain residential development and doesn’t recommend mitigation.”
“The GLA’s air quality experts have confirmed that any potential adverse impact would be limited to one receptor on Long Lane north of the A40. The possible slight adverse impact is unlikely and any possible impact would not be significant. Overall the air quality impacts of the proposed development would not impact on the integrity of the Air Quality Focus Area.”
“a conflict with two development plan policies does not necessarily mean that there is an overall conflict with the development plan as a whole as development plan policies can pull in different directions. GLA officers have considered the whole of the development plan and consider that, overall, the proposal accords with it. This report sets out all relevant material considerations, none of which, individually or cumulatively, are considered to warrant refusal of planning permission”
“In addition to this the Council has provided a technical response on air quality produced by AQE Global (August 2020). It should be noted that the Council has requested (should the GLA be minded to approve the scheme) a contribution of£218,139 to be paid to Hillingdon to deliver its air quality local action plan and or implement specific measures on/along the road network affected by the proposals that reduce vehicle emissions and or reduce human exposure to pollution levels. GLA officers note that this contribution has not been agreed and is subject to further discussion.”
“…. Can I begin by thanking everyone who has attended today and for the contributions made in particular by the local residents, the objectors, the applicant and the council? This has ensured that I am as informed as possible to make this decision. I will begin by explaining the wider context to my consideration, which is that London is facing a housing crisis and we urgently need more housing. Particularly, genuinely affordable homes. Assessed need showed that London needs at least 66,000 new homes a year until 2030, 3,000 of which must be affordable in order to address the existing shortfall in housing and accommodate London’s projected population growth. I have made fixing the housing crisis one of my top priorities and achieving this is dependent on the approval of well-designed schemes with good levels of low-cost rented and other genuinely affordable housing. This needs to be understood not just by the government, but at local council level too. We must all ensure that we use appropriate opportunities that are available to us to build more affordable housing, particularly lower-cost rental housing. Based on the latest figures from the London Development Database, Hillingdon Borough still has a long way to go to deliver the affordable housing targets as set out in the London Plan. The scheme that I am considering would provide 121 new London affordable rent homes and 61 shared ownership homes to people who desperately need them in Hillingdon, all of which would be genuinely affordable. This site is an under-utilised area of brownfield land, close to a London Underground station. It is exactly the kind of site we need to intensify if we are to deliver the homes Londoners need whilst protecting the Green Belt. The council’s own policy allocates this site for residential development. As was clear to me during my site visit, the site is relatively isolated from its surroundings. The plans offer new public routes through the site, connecting to the [area] and significant areas of new and improved green space, which would be of considerable benefit to local people. It would also provide new commercial uses and improve connections, which would benefit the local centre. I have carefully considered the visual impact of the development. I agree with the GAL[sic] and council officers that there would be less than substantial harm to heritage assets, which would be out-weighed by the benefits of the scheme. Whilst the scale and prominence would be apparent in some local views, this would not in my view be a harmful impact given the approach the massing and high-quality architecture, and would not harm the visual openness of the surrounding Green Belt. I recognise that the site is not within a location designated to tall buildings. But overall, I consider the height and massing to be acceptable. Air quality is of course a very important issue for me. I have carefully considered the technical evidence made available to me and my view is that the barrier block form of development will ensure that future residents will not be disadvantaged, subject to the mitigation measures recommended. Overall, the scheme will provide high-quality housing and external amenity, despite the shortfall against local policy. I have heard the concerns raised about the lack of car parking and the increase in traffic congestion. In my view, when considering development proposals, the main way to reduce congestion is to discourage the use of the private car. Approving well-designed, car-light developments in accessible locations like this is one of the ways to achieve this objective. As well of course as other objectives around environment and health, I am satisfied that there are adequate measures secured to mitigate overspill car parking. For these reasons I agree with the GLA planning Officer’s recommendation and grant planning permission. Can I thank you all very much for your time this afternoon and today? Thank you. Stay safe.”
“….. I am issuing a new Direction regarding Policy D9 (Tall Buildings). There is clearly a place for tall buildings in London, especially where there are existing clusters. However, there are some areas where tall buildings don’t reflect the local character. I believe boroughs should be empowered to choose where tall buildings are built within their communities. Your draft policy goes some way to dealing with this concern. In my view we should go further and I am issuing a further Direction to strengthen the policy to ensure such developments are only brought forward in appropriate and clearly defined areas, as determined by the boroughs whilst still enabling gentle density across London. I am sure that you share my concern about such proposals and will make the required change which will ensure tall buildings do not come forward in inappropriate areas of the capital.”
“The draft London Plan includes a policy for tall buildings but this could allow isolated tall buildings outside designated areas for tall buildings and could enable boroughs to define tall buildings as lower than 7 storeys, thus thwarting proposals for gentle density. This Direction is designed to ensure that there is clear policy against tall buildings outside any areas that boroughs determine are appropriate for tall buildings, whilst ensuring that the concept of gentle density is embodied London wide. It retains the key role for boroughs to determine where may be appropriate for tall buildings and what the definition of tall buildings are, so that it is suitable for that Borough.”
“……The modification to policy D9 provides clear justification to avoid forms of development which are often considered to be out of character, whilst encouraging gentle density across London.”
“Definition A Based on local context, Development Plans should define what is considered a tall building for specific localities, the height of which will vary between and within different parts of London but should not be less than 6 storeys or 18 metres measured from ground to the floor level of the uppermost storey. Locations B 1) Boroughs should determine if there are locations where tall buildings may be an appropriate form of development, subject to meeting the other requirements of the Plan. This process should include engagement with neighbouring boroughs that may be affected by tall building developments in identified locations. 2) Any such locations and appropriate tall building heights should be identified on maps in Development Plans. 3) Tall buildings should only be developed in locations that are identified as suitable in Development Plans. Impacts C Development proposals should address the following impacts: 1) visual impacts […] 2) functional impact […] 3) environmental impact […]”
“The scheme provides a high standard of residential accommodation …. The new public spaces and routes would be of high quality. Given the circumstances of this site, the scale and massing is considered acceptable within this accessible local centre, marks the location of the station and would have an acceptable visual impact.”
“….the Council raises concerns that its Air Quality Peer Review was not considered by GLA officers because it is not mentioned in the Representation Hearing Report. This is because this information was submitted to the GLA by the Council on28 August 2020 along with its pre-hearing representation, more than one working day after the Representation Hearing Report was published. The Council’s pre-hearing representation and Air Quality Peer Review was addressed in the addendum report published on the day of the hearing. GLA officers consider the application to be in accordance with planning policy regarding air quality and as such the ‘damage cost’ payment requested by the Council is not justified….”
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
“Section 18A [the parallel provision in Scotland] has introduced a priority to be given to the development plan in the determination of planning matters…. By virtue of section 18A the development plan is no longer simply one of the material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is thought to be useful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission….. By virtue of section 18A if the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted…. Moreover the section has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it. As Glidewell L.J. observed in Loup v. Secretary of State for the Environment (1995) 71 P. & C.R. 175, 186: “What section 54A does not do is to tell the decision-maker what weight to accord either to the development plan or to other material considerations.”
“That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v. Secretary of State for the Environment[1995] 1 WLR 659 , 780 per Lord Hoffmann).”
“20. Without seeking to be exhaustive, I think there are five things one can fairly say in the light of the authorities. 21. First, the section 38(6) duty is a duty to make a decision (or “determination”) by giving the development plan priority, but weighing all other material considerations in the balance to establish whether the decision should be made, as the statute presumes, in accordance with the plan (see Lord Clyde's speech in City of Edinburgh Council, at p.1458D to p.1459A, and p.1459D-G). Secondly, therefore, the decision-maker must understand the relevant provisions of the plan, recognizing that they may sometimes pull in different directions (see Lord Clyde's speech in City of Edinburgh Council , at p.1459D-F, the judgments of Lord Reed and Lord Hope in Tesco Stores Ltd. v Dundee City Council[2012] UKSC 13 , respectively at paragraphs 19 and 34, and the judgment of Sullivan J., as he then was, in R. v Rochdale Metropolitan Borough Council, ex p. Milne[2001] J.P.L. 470, at paragraphs 48 to 50). Thirdly, section 38(6) does not prescribe the way in which the decision-maker is to go about discharging the duty. It does not specify, for all cases, a two-stage exercise, in which, first, the decision-maker decides “whether the development plan should or should not be accorded its statutory priority”, and secondly, “if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration” (see Lord Clyde's speech in City of Edinburgh Council , at p.1459H to p.1460D). Fourthly, however, the duty can only be properly performed if the decision-maker, in the course of making the decision, establishes whether or not the proposal accords with the development plan as a whole (see the judgment of Richards L.J. in R. (on the application of Hampton Bishop Parish Council) v Herefordshire Council[2014] EWCA Civ 878 , at paragraph 28, and the judgment of Patterson J. in Tiviot Way Investments Ltd. v Secretary of State for Communities and Local Government[2015] EWHC 2489 (Admin) at paragraphs 27 to 36). And fifthly, the duty under section 38(6) is not displaced or modified by government policy in the NPPF. Such policy does not have the force of statute. Nor does it have the same status in the statutory scheme as the development plan. Under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, its relevance to a planning decision is as one of the other material considerations to be weighed in the balance (see the judgment of Richards L.J. in Hampton Bishop Parish Council, at paragraph 30).”
“22 If the relevant policies of the plan have been properly understood in the making of the decision, the application of those policies is a matter for the decision-maker, whose reasonable exercise of planning judgment on the relevant considerations the court will not disturb: see the speech of Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment [1005] 1 WLR 759, 780. The interpretation of development plan policy, however, is ultimately a matter of law for the court. The court does not approach that task with the same linguistic rigour as it applies to the construction of a statute or contract. It must seek to discern from the language used in formulating the plan the sensible meaning of the policies in question, in their full context, and thus their true effect. The context includes the objectives to which the policies are directed, other relevant policies in the plan, and the relevant supporting text. The court will always keep in mind that the creation of development plan policy by a local planning authority is not an end in itself, but a means to the end of coherent and reasonably predictable decision-making, in the public interest (see the judgment of Lord Reed in Tesco v Dundee City Council, at paragraphs 18 and 19; the judgment of Lord Gill in Hopkins Homes, at paragraphs 72 and 73; the judgment of Richards L.J. in Ashburton Trading Ltd. v Secretary of State for Communities and Local Government[2014] EWCA Civ 378 , at paragraphs 17 and 24; and the judgment of Richards L.J. in R. (on the application of Cherkley Campaign Ltd.) v Mole Valley District Council[2014] EWCA Civ 567 , at paragraphs 16 and 21).”
“116. … A useful summation of the law was given by Simon Brown LJ in R v Somerset County Council, Ex p Fewings[1995] 1 WLR 1037 , 1049, in which he identified three categories of consideration, as follows: “… [T]he judge speaks of a 'decision-maker who fails to take account of all and only those considerations material to his task'. It is important to bear in mind, however, … that there are in fact three categories of consideration. First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had. Second, those clearly identified by the statute as considerations to which regard must not be had. Third, those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so. There is, in short, a margin of appreciation within which the decision-maker may decide just what considerations should play a part in his reasoning process.” 117. The three categories of consideration were identified by Cooke J in the New Zealand Court of Appeal in CREEDNZ Inc v Governor General[1981] NZLR 172 , 183: “What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the [relevant public authority] as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision.”
“122. In my judgment, an authority's duty to “have regard to” material considerations is not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of a resolution (in principle) to grant planning permission but before the issue of the decision notice there has to be a specific referral of the application back to committee. In my judgment the duty is discharged if, as at the date at which the decision notice is issued, the authority has considered all material considerations affecting the application, and has done so with the application in mind — albeit that the application was not specifically placed before it for reconsideration. 123. The matter cannot be left there, however, since it is necessary to consider what is the position where a material consideration arises for the first time immediately before the delegated officer signs the decision notice. 124. At one extreme, it cannot be a sensible interpretation of section 70(2) to conclude that an authority is in breach of duty in failing to have regard to a material consideration the existence of which it (or its officers) did not discover or anticipate, and could not reasonably have discovered or anticipated , prior to the issue of the decision notice. So there has to be some practical flexibility in excluding from the duty material considerations to which the authority did not and could not have regard prior to the issue of the decision notice. 125. On the other hand, where the delegated officer who is about to sign the decision notice becomes aware (or ought reasonably to have become aware) of a new material consideration, section 70(2) requires that the authority have regard to that consideration before finally determining the application. In such a situation, therefore, the authority of the delegated officer must be such as to require him to refer the matter back to committee for reconsideration in the light of the new consideration. If he fails to do so, the authority will be in breach of its statutory duty. 126. In practical terms, therefore, where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a “material consideration” for the purposes of section 70(2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied (a) that the authority is aware of the new factor, (b) that it has considered it with the application in mind, and (c) that on a reconsideration the authority would reach (not might reach) the same decision.”
“42. The principles on which the court will act when criticism is made of a planning officer’s report to committee are well settled. To summarise the law as it stands: (1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms [1997] E.G.C.S. 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council[2010] EWCA Civ 1286 , at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council[2012] EWHC 3708 (Admin) , at paragraph 15). (2) The principles are not complicated. Planning officers’ reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council[2011] UKSC 2 , at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500, at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer’s recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council[2016] EWCA Civ 1061 , at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer’s report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee’s decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice. (3) Where the line is drawn between an officer’s advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council[2016] EWCA Civ 795 ), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council[2017] EWCA Civ 152 ). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council[2017] EWCA Civ 427 ). But unless there is some distinct and material defect in the officer’s advice, the court will not interfere.”
“Whilst planning officers' reports should not be equated with inspectors' decision letters, it is well established that, in construing the latter, it has to be remembered that they are addressed to the parties who will be well aware of the issues that have been raised in the appeal. They are thus addressed to a knowledgeable readership and the adequacy of their reasoning must be considered against that background. That approach applies with particular force to a planning officer's report to a committee. Its purpose is not to decide the issue, but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large but to council members who, by virtue of that membership, may be expected to have substantial local and background knowledge. There would be no point in a planning officer's report setting out in great detail background material, for example, in respect of local topography, development planning policies or matters of planning history if the members were only too familiar with that material. Part of a planning officer's expert function in reporting to the committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail.”
“37. Turning then to the wording of Policy D9 [SB/E1], the following is apparent: a. Policy D9 Part A states that the definition of “what is considered a tall building for specific localities” is a matter for individual boroughs through their local development plan. The only limit on that planning judgment is that the definition of a tall building is subject to a “floor” of 6 storeys or 18 metres. When arriving at this definition, it is implicit that a borough planning authority will need to consider the potential impacts of buildings of different heights in specific localities: that this is the case is supported by paragraph 3.9.3 in the supporting text [CB/E5] which elucidates what is meant by buildings being “tall” by reference to their relative height compared to “their surroundings” and their impact on the skyline. b. Policy D9 Part B, paragraph 1 is linked to Part A in so far as in addition to determining what a tall building is in planning policy terms, boroughs are given the sole responsibility for determining “if there are locations where tall buildings may be an appropriate form of development” within their area i.e. in specific localities. Boroughs are not obliged to identify any such locations, nor is there a presumption that at least one area of a borough will be appropriate. The matter is left entirely to the planning judgment of the borough through the development plan process. Moreover, even in areas identified, there is no presumption that tall buildings will be consented, because, as paragraph 3.9.3 explains (building on Policy D9 Part B paragraph 1) “such proposals will still need to be assessed in the context of other planning policies… to ensure that they are appropriate for their location and do not lead to unacceptable impacts”. c. When deciding whether and where tall buildings “may be an appropriate form of development”, boroughs will necessarily have to take into account the impacts of buildings of defined heights or features. This is obviously implicit in the word “appropriate” (referring to the appropriateness of the form of development given the particular characteristic of the locality) and “suitable” (in Policy D9 Part B paragraph 3, referring to the suitability of a particular locality for tall buildings given its particular characteristics and the impact of tall building on them). The supporting text at paragraph 3.9.2(1) supports this interpretation (that boroughs necessarily have to take into account impacts of potential development) since it instructs boroughs to identify locations “by assessing potential visual and cumulative impacts”
“33. ……There is only limited scope for the use of extrinsic material in the interpretation of a public document, such as a planning permission or a section 36 consent: R v Ashford Borough Council, Ex p Shepway District Council [1999] PLCR 12, per Keene J at pp 19C–20B; Carter Commercial Developments Ltd v Secretary of State for Transport, Local Government and the Regions [2003] JPL 1048, per Buxton LJ at para 13 and Arden LJ at para 27. It is also relevant to the process of interpretation that a failure to comply with a condition in a public law consent may give rise to criminal liability. In section 36(6) of the 1989 Act the construction of a generating station otherwise than in accordance with the consent is a criminal offence. This calls for clarity and precision in the drafting of conditions. 34. When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference (as in condition 7 set out in para 38 below) or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent.”
“I do not think it is necessary, or appropriate, to resort to other documents to help with the interpretation of Policy SS2. In the first place, the policy is neither obscure nor ambiguous. Secondly, the material on which Mr Edwards seeks to rely is not part of the core strategy. It is all extrinsic – though at least some of the documents constituting the evidence base for the core strategy are mentioned in its policies, text and appendices, and are listed in a table in Appendix 6. Thirdly, as Mr Moules and Mr Brown submit, when the court is faced with having to construe a policy in an adopted plan it cannot be expected to rove through the background documents to the plan's preparation, delving into such of their content as might seem relevant. One would not expect a landowner or a developer or a member of the public to have to do that to gain an understanding of what the local planning authority had had in mind when it framed a particular policy in the way that it did. Unless there is a particular difficulty in construing a provision in the plan, which can only be resolved by going to another document either incorporated into the plan or explicitly referred to in it, I think one must look only to the contents of the plan itself, read fairly as a whole. To do otherwise would be to neglect what Lord Reed said in paragraph 18 of his judgment in Tesco Stores Ltd. v Dundee City Council : that “[the] development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it”, that the plan is “intended to guide the behaviour of developers and planning authorities”, and that “the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained”
“Development proposals in locations that have been identified in development plans under Part B should address the following impacts.”
“The applicant’s Air Quality Assessment has been reviewed by GLA officers, and is supported. The development would be air quality neutral, subject to the mitigation measures secured.”
“In addition to this the Council has provided a technical response on air quality produced by AQE Global (August 2020). It should be noted that the Council has requested (should the GLA be minded to approve the scheme) a contribution of£218,139 to be paid to Hillingdon to deliver its air quality local action plan and or implement specific measures on/along the road network affected by the proposals that reduce vehicle emissions and or reduce human exposure to pollution levels. GLA officers note that this contribution has not been agreed and is subject to further discussion.”
“I would stress that the Claimant considers an air quality section 106 contribution is still required.”
“Air quality is of course a very important issue for me. I have carefully considered the technical evidence made available to me and my view is that the barrier block form of development will ensure that future residents will not be disadvantaged, subject to the mitigation measures recommended.”
“Air Quality – My clients instructions are that we agree for these to be deleted from the [section 106] agreement.”
“….the Council raises concerns that its Air Quality Peer Review was not considered by GLA officers because it is not mentioned in the Representation Hearing Report. This is because this information was submitted to the GLA by the Council on28 August 2020 along with its pre-hearing representation, more than one working day after the Representation Hearing Report was published. The Council’s pre-hearing representation and Air Quality Peer Review was addressed in the addendum report published on the day of the hearing. GLA officers consider the application to be in accordance with planning policy regarding air quality and as such the ‘damage cost’ payment requested by the Council is not justified….”
“65. The basic requirements of a lawful consultation have now been settled for some considerable time and are derived from the decision of Hodgson J in R v Brent London Borough Council ex p Gunning(1985) 84 LGR 168 . They are, firstly, that the consultation should be undertaken at a time when the proposals are still at a formative stage. Secondly, the body undertaking the consultation should provide sufficient reasons and explanation for the decision about which it is consulting to enable the consultees to provide a considered and informed response. Thirdly, adequate time to allow for consideration and response must be provided. Fourthly, the responses to the consultation must be conscientiously taken into account in reaching the decision about which the public body is consulting. These principles, known as the Sedley criteria as a result of the author of the submissions upon which they were based, have recently been endorsed by the Supreme Court in R(Moseley) v Haringey London Borough Council[2014] UKSC 56 ;[2014] 1 WLR 3947 at paragraph 26. 66. In his judgment in Moseley Lord Wilson JSC emphasised that however the duty to consult arises, the manner in which it is conducted will be informed by the common law requirements of fairness. He observed at paragraph 24 as follows: “Fairness is a protean concept, not susceptible of much generalised enlargement. But its requirements in this context must be linked to the purposes of consultation. In R(Osborn) v Parole Board[2014] AC 1115 , this court addressed the common law duty of procedural fairness in the determination of the person's legal rights. Nevertheless the first two of the purposes of procedural fairness in that somewhat different context, identified by Lord Reed JSC in paras 67 and 68 of his judgment, equally underlie the requirement that a consultation should be fair. First, that requirement “is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested”: para 67. Second, it avoids “the sense of injustice which the person who is the subject of the decision will otherwise feel”: para 68. Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society. This third purpose is particularly relevant in a case like the present, in which the question was not: ‘yes or no, should we close this particular care home, this particular school etc?’ It was: ‘Required as we are, to make a taxation-related scheme for application to all the inhabitants of our borough, should we make one in the terms which we here propose?’” 67. In his judgment Lord Reed JSC placed greater emphasis upon the statutory context and the purpose of the particular statutory duty to consult and less on the common law duty to act fairly. In paragraph 36 of his judgment, having noted that the case under consideration was not one where the duty to consult arose as a result of a legitimate expectation he stated: “This case is not concerned with a situation of that kind. It is concerned with a statutory duty of consultation. Such duties vary greatly depending on the particular provisions in question, the particular context, and the purpose for which the consultation is to be carried out. The duty may, for example, arise before or after a proposal has been decided upon; it may be obligatory or may be at the discretion of the public authority; it may be restricted to particular consultees or may involve the general public; the identity of the consultees may be prescribed or may be left to the discretion of the public authority; the consultation may take the form of seeking views in writing, or holding public meetings; and so on and so forth…”
“In order for the consultation to achieve that objective, it must fulfil certain minimum requirements. Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority's adoption of the draft scheme.”
“We agree with Lord Reed JSC that the court must have regard to the statutory context and that, as he puts it, in the particular statutory context the duty of the local authority was to ensure public participation in the decision-making process. It seems to us that in order to do so it must act fairly by taking the specific steps set out by Lord Reed JSC, in para 39. In these circumstances we can we think safely agree with both judgments.””
“77. Having observed all of the above in relation to the legal principles governing consultation it is important to recognise, as the courts have on several occasions, that a decision-maker will have a broad discretion as to how a consultation exercise may be structured and carried out. As Sullivan J (as he then was) observed in R(on the application of Greenpeace Limited) v Secretary of State for Trade and Industry[2007] EWHC 311 at paragraphs 62 and 63: “A consultation exercise which is flawed in one, or even in a number of respects, is not necessarily so procedurally unfair as to be unlawful. With the benefit of hindsight it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. That is most emphatically not the test. It must also be recognised that a decision-maker will usually have a broad discretion as to how a consultation exercise should be carried out…In reality, a conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the court, not merely that something went wrong, but that something went ‘clearly and radically wrong’.”