Holborn Studios Limited v Secretary of State for Housing Communities and Local Government [2025] EWHC 1852 (Admin)

[2025] EWHC 1852 (Admin)

Case No AC-2024-LON-002990

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

PLANNING COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 18/07/2025

Before

MR JUSTICE JAY

Between

HOLBORN STUDIOS LIMITEDClaimant

SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENTDefendants

LONDON BOROUGH OF HACKNEYDefendant

GHL (EAGLE WHARF ROAD) LIMITEDDefendant

Richard Harwood OBE, KC (instructed by Goodenough Ring Solicitors) for Claimant

Victoria Hutton (instructed by Government Legal Department) for First Defendant

Sasha White KC and Andrew Parkinson (instructed by Mischon de Reya LLP) for Third Defendant

The Second Defendant was neither present nor represented

Hearing Hearing dates: 2 and 3 July 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 18 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

MR JUSTICE JAY

INTRODUCTION

[1]This claim for statutory review under s. 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) relates to the grant of planning permission by an Inspector appointed by the First Defendant (“the Secretary of State”) on 29 July 2024 for development at 49-50 Holborn Studios, Eagle Wharf Road, Hackney, London N1 7ED (“the Site”).

[2]The local planning authority for the Site is the Second Defendant (“the LPA”) which takes no role in these proceedings. The current leasehold owner of virtually all of the Site is the Claimant which I will be referring to hereafter as Holborn Studios. It leases the Site from the Third Defendant, the freeholder and developer, which I will be referring to hereafter as GHL.

[3]The Site has been described as an assemblage of nineteenth and twentieth century buildings on the south side of the Regents Canal. For many years the Site was run down and distressed, but since 1987 it has been transformed by Holborn Studios into Europe’s largest photographic studio, used by the world’s leading photographers. At the moment, the Site comprises three storeys and a basement which is not in use. The only part of the Site that is outside the lease is Unit 2. Holborn Studios operates seven studios on the ground floor and a further studio on the second floor. Currently, there are other creative and non-creative industries operating from the Site under licence granted by Holborn Studios, as well as a café. The existing Site, measured in terms of the gross internal area, comprises 4,784 sq. m. of employment floorspace and 251 sq. m. for the café. My attention has not been drawn to any reference in the bundles which specifies the surface area of the eight studios currently occupied by Holborn Studios or indeed the surface area in occupation by any other entity.

[4]As the Inspector found, the Site is in need of some modernisation. GHL’s proposal, first advanced in 2017, is for a mixed-use scheme (“the Development”) including 5,591 sq. m. of commercial floorspace and 50 residential units. More particularly: “partial demolition of existing buildings, retention of 3 storey building and former industrial chimney and redevelopment of the site to provide a mixed use scheme comprising blocks of 2 to 7 storeys and accommodating 5,591 sqm of commercial floorspace (Use Class Eg[i]) at basement, ground, first, second, third, fourth and fifth floor level, 50 residential units at part first, part second, third, fourth, fifth and sixth floor levels (comprising 23 x 1 bed, 17 x 2 bed, 8 x 3 bed, 2 x 4 bed) as well as 127 sqm café floorspace (Use Class E[b]) at ground floor level, landscaped communal gardens, pedestrian link route to the Regents Canal and other associated works.” (Note: this version of the proposal reflects subsequent amendments to the floorspace and the designation within the Use Classes Order).

[5]This proposal, and an earlier proposal which resulted in the grant of planning permission being quashed in this Court in 2017, has a long and somewhat chequered planning history, little of which matters for present purposes. Following a further quashing in this Court in 2020, the proposal returned to the LPA for reconsideration. Officers recommended granting planning permission but the LPA’s planning committee refused permission for four reasons which were given on 8 April 2022. Two of these are presently material. First:

“the loss of existing photographic studio use, which is considered to be a cultural facility in use by creative industries, contrary to the objectives of policy HC5 (Supporting London’s culture and creative industries) of the London Plan 2021 and policy LP10 (Arts, Culture and Entertainment Facilities) of the Hackney Local Plan 2020.”

And secondly:

“The proposal fails to meet the target of 60% employment floorspace in the Wenlock Priority Office Area contrary to the objectives of policy LP27 (Protecting and Promoting Office Floorspace in the Borough). At the same time the proposed development would deliver affordable workspace in excess of the 10% required by policy LP29 (Affordable Workspace and Low-Cost Employment Floorspace) of the Hackney Local Plan 2020, whilst also failing to make any significant affordable housing contribution as sought by policy LP13 (Affordable Housing) of the Hackney Local Plan 2020. As such, the proposed development is considered to provide an unsatisfactory balance of land uses that is not outweighed by the potential benefits of the scheme.”

THE PUBLIC INQUIRY

[6]GHL appealed to the Inspector. It was represented at the appeal by Mr Sasha White KC and Mr Andrew Parkinson. The LPA was also represented at the appeal as was Holborn Studios, a rule 6 party, in its case by Mr Richard Harwood KC. The appeal was heard over 15 sitting days between September 2023 and February 2024, and the Inspector conducted two Site visits.

[7]As Ms Victoria Hutton’s skeleton argument helpfully summarises, on the issue of the “reprovision” of cultural uses within the premises in the context of what was being proposed, there was competing evidence before the Inspector.

[8]On behalf of Holborn Studios, there was witness evidence which alleged that the provision of cultural space in the basement would be “unusable”. This included a letter from structural engineers dated 17 July 2017 which argued that if columns in the basement were removed, transfer structures would be required and that transfer beams could be anticipated to be between 1 m. to 2 m. in depth. The engineers posited that the transfer structures had not been accounted for in the planning drawings and that the result would be that the floor would need to be lower, the building height greater or a combination of the two. There was also planning evidence which stated that the basement could not be used as a photographic studio and that the scheme would not comply with policies HC5 of the London Plan and LP10 of the Hackney Local Plan. There was evidence from Mr Bill Ling a fashion photographer who said that the proposed plans did not provide essential requirements for a photographic studio.

[9]On behalf of GHL, there was architectural evidence from Mr Stephen Davy which included a chapter on how the Development design had provided for cultural use. This included, as an appendix, a letter from structural engineers stating that transfer structures or slabs would need to be between 1 m. and 1.4 m. and that these can be accommodated within the overall ground floor depth. There was evidence from a Chartered Surveyor, Mr John Stephenson, on the flexible nature of the lower ground floor of the scheme and the fact that it had been designed with photographic studios in mind. Mr Stephenson set out that the proposal would create the necessary “shell” to meet the requirements of top-end photographic studios, and that certain additional features may be required as part of a “fit out” which could be incorporated by the scheme. This included, as an appendix, a letter from a company that had fitted out over 100 studios stating that the space is versatile for the creation of photographic, film and music studios and is all suitable for cultural and creative uses.

[10]A statement of common ground between the LPA and GHL (but not Holborn Studios) recorded that:

“It is agreed that at basement level, the commercial floorspace has been designed to be suitable for occupation as film/photographic studios, as well as other cultural industries. A feature of the design has been to include high ceilings at basement level and a large goods lift, to ensure the floorspace at this level would be attractive to a number of cultural uses (para 8.15); It is agreed that the new floorspace would be of a high quality and flexible (para 8.21); Without prejudice to the LPA’s reason for refusal, it is agreed that while the particular occupational requirements of Holborn Studios photography studio may not be fully accommodated by the new floorspace, the space is considered to be of a design standard where it could be occupied by other potential occupiers in the E(g)[i] use class, including creative uses such as film and photography studios and more conventional office uses (which are also present upon the site).’ (para 8.25); and It is agreed that the affordable workspace would be suitable for occupiers within the creative sector and would be provided at a genuine discount against market rates. (para 8.28).”

[11]The Inspector issued her decision on 29 July 2024. She allowed the appeal subject to conditions and a planning obligation. I will be addressing the Decision Letter (“DL”) in more detail later, but I note the following matters at this stage:(1) the Inspector recorded that the submission of further viability evidence following GHL’s issue of its Statement of Case was objected to by the LPA and, on that basis, it was withdrawn by GHL (DL16);

(2) the main issues were set out at DL29. Those relevant to this claim are: (i) the effect of the appeal proposal on the provision of cultural facilities in use by creative industries; and (ii) the effect of the appeal proposal on the provision of employment floorspace in the Wenlock Priority Office Area, affordable workspace, and affordable housing in the borough.

(3) the Inspector’s discussion of the first main issue was at DL30–47. I summarise these paragraphs later.

(4) as regards policy LP27, the Inspector found that the proposal would fall short of the 60% threshold of class E(g)(i). She highlighted that it may be that additional floorspace could be incorporated through the insertion of mezzanine levels. However, whether or not mezzanine floors were provided, given the viability evidence, the appeal scheme would accord with policy LP27 (see DL109-111]. The Inspector further found that there would be no material harm as a result of the shortfall of employment floorspace (DL112).

(5) the Inspector found compliance with all relevant policies and that this development plan compliance was not outweighed by other material considerations raised in the appeal (DL180).

[12]I have mentioned that the appeal was allowed subject to conditions. Condition 1 required the Development to be “carried out and completed strictly in accordance with the approved plans and any subsequent approval of details”. The listed plans included “EAG-P110-S2-P3 – Proposed Basement Plan” as well as the other floor plans.

[13]Condition 41 permitted the widening of the use of the offices from Use Class E(g)(i), after that use had commenced:

“41. Use Classes The parts of the development hereby approved within part G of Class E of the Town and Country Planning (Use Classes) Order 1987 (as amended) shall only operate within class E(g) and shall not benefit from changes of use granted by the General Permitted Development Order (2015) (as amended).”

As the Inspector explained at DL42, class E(g):

“… could include uses, such as existing cultural and creative uses, which can be carried out in a residential area without detriment to its amenity. That would enable use of some of the office floorspace, particularly at ground and first floor for use by the creative industries, subject to compliance with other development plan policy, particularly in relation to development within the Priority Office Area (POA). In that way all of the existing floorspace in creative use could be provided as part of the appeal development.”

[14]The planning obligation required the payment of £157,823 towards off-site affordable housing subject to later stage reviews. It also required the provision of no less than 643 sq. m.of the commercial floorspace as “affordable workspace” let at 60% of Market Rent (clause 1.1, schedule 12). By schedule 12, para 1.4 the owner covenanted:

“… to use Reasonable Endeavours to ensure that at least part [11.5% of the total commercial space] of the Affordable Workspace is let or licensed to an Affordable Workspace Provider that serves the Creative Industries.”

[15]An Affordable Workspace Provider is a provider agreed by the LPA. Creative Industries were design and/or architecture, film, television, radio, publishing, performing arts, advertising and marketing, visual arts, IT, software and video/computer games, exhibition space, photography, product design, graphic design and fashion design, crafts and other agreed creative industries (clause 1.1).

[16]Following the issue of the Inspector’s DL, on 14 October 2024 GHL has entered into a planning obligation which secures the use of the basement of the Site as “cultural” within the meaning of relevant policies.

IDENTIFICATION OF THE GROUNDS

[17]Holborn Studios advances the following Grounds:(1) The conclusion that the scheme complied with the policies on cultural facilities was unlawful as: (a) the Inspector erred in law in relying upon the possibility of alternative layouts for the basement when the layout was fixed by the planning permission; a justiciable error of fact was made about loadbearing walls; and there was no evidence that an alternative layout would deliver the expected improvements to the scheme. (b) given the Inspector’s findings and the incontrovertible circumstances, it was not rational to find that the scheme amounted to the “reprovision” of the cultural facility, as required by policy, in particular given the permitted use, design and the lack of control of the use of the building.

(2) Several errors arise in respect of the shortfalls of the application scheme and the benefits of the existing use: (a) the Inspector unlawfully concluded without any evidence that the Priority Office Area 60% requirement could be met by mezzanines; (b) the Inspector unlawfully refused to allow the up-to-date viability assessment which GHL had submitted to the inquiry to be referred to once GHL had asked for it to be withdrawn; (c) the Inspector failed to take into account a material consideration, the merits of the existing use of the land as compared to a proposed Development which fails to achieve policy expectations on viability grounds (alternatively, failed to give statutory reasons).

[18]Permission to apply for this statutory review was granted by Morris J on Grounds (1)(a) and (2)(b) and (c) on the papers, but refused on the other Grounds (i.e. (1)(b) and (2)(a)). Holborn Studios has applied to renew on those two Grounds. With the parties’ agreement, Mould J directed that the renewal grounds be heard on a “rolled up” basis in the substantive hearing.

LEGAL FRAMEWORK

[19]The principles governing applications of this sort are too familiar to warrant inclusion in this judgment, although in the light of some of my interventions during Mr Harwood’s submissions (which, on reflection, will have sounded somewhat critical of the Inspector at a stage when my thinking was still in a process of gestation), I need remind myself of the well-established principle that these decision letters must be construed in a reasonably flexible way. I refer instead to a handful of miscellaneous matters.

[20]Section 55(2)(a) of the 1990 Act provides:

“(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land – (a) the carrying out for the maintenance, improvement or other alteration of any building of works which – (i) affect only the interior of the building, or (ii) do not materially affect the external appearance of the building.”

[21]In Sage v Secretary of State for the Environment, Transport and the Regions

[2003] UKHL 22

;

[2003] 1 WLR 983

the House of Lords made it clear that the words, “maintenance, improvement or other alteration of any building” apply only to a completed building (per Lord Hobhouse at para 19). It follows from this that: “… if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful. [This is to be] contrasted … with a case where the building has been completed but is then altered or improved.” (para 23) (emphasis in original)

[22]Use Class E includes:

“Class E. Commercial, Business and Service Use, or part use, for all or any of the following purposes — … (b) for the sale of food and drink principally to visiting members of the public where consumption of that food and drink is mostly undertaken on the premises, … (d) for indoor sport, recreation or fitness, not involving motorised vehicles or firearms, principally to visiting members of the public, … (g) for — (i) an office to carry out any operational or administrative functions, (ii) the research and development of products or processes, or (iii) any industrial process, being a use, which can be carried out in any residential area without detriment to the amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit.”

Use, or part use, for all or any of the following purposes —

[23]Policy HC5 of the London Plan, 2021 provides:

“A. The continued growth and evolution of London’s diverse cultural facilities and creative industries is supported. Development plans and development proposals should: (1) protect existing cultural venues, facilities and uses where appropriate.”

[24]Policy LP10 of the Hackney Local Plan, adopted in July 2020, provides:

“Development involving the loss of arts, culture and entertainment facilities will be resisted, unless reprovided in accordance with other policy requirements.”

[25]It is to be noted that HC5 of the London Plan covers both development plans and development proposals. The word “existing” does not appear in LP10 of the Hackney Local Plan but I think it is implicit in the noun “loss”. In my view, these policies complement each other and both apply to the development proposal at issue here. In this regard, I should also address para 88 of Dove J’s judgment on R (oao Holborn Studios Ltd) v London Borough of Hackney and GHL

[2020] EWHC 1509 (Admin)

, where he observed that “nowhere in any of the policies relied on by the claimant does the need to protect the specific and bespoke use operated by the claimant, and its particular requirements in relation to accommodation arise”. Dove J was not addressing the policies I have to consider. It was a major plank of the LPA’s case before the Inspector that the policy landscape had moved against GHL by the time these proposals were under consideration.

[26]The Local Plan policies on employment are, in particular:

“LP26 Employment Land and Floorspace New development in the designated employment areas should maximise employment floorspace in line with Policy LP27 Protecting and Promoting Office floorspace in the Borough. LP27 Protecting and Promoting Office Floorspace in the Borough C. New development within designated Priority office Areas (“POAs”) will be permitted where it is employment-led and where B1 use class is the primary use in line with the below thresholds, subject to viability. i. Within the Future Shoreditch AAP (Shoreditch POA and part of the Wenlock POA) - at least 60% of the floorspace across the area as a whole is B1 employment floorspace. … D. Retail, hotel, community, leisure, residential development in POAs will be permitted where all of the following criteria are met: i. The development forms part of an employment-led, mixed-use scheme including conversion schemes meeting the thresholds identified in Ci. and ii. above. “LP29 Affordable Workspace and Low Cost Employment Floorspace New major employment and mixed used development in the Borough’s designated employment areas, the CAZ and town centres should provide affordable or low cost workspace, equating to a minimum of 10% of gross new employment floorspace. Reprovision of Low Cost Employment Floorspace B. Major employment and mixed use schemes involving the redevelopment of existing low cost employment floorspace must reprovide the maximum economically feasible amount of low cost employment floorspace in perpetuity (refer to Appendix 1), at equivalent rents and service charges, suitable for the existing or equivalent uses, subject to current lease arrangements and the desire of existing businesses to remain on-site. Affordable Workspace C. If the low cost employment floorspace equates to less than 10% of gross new employment floorspace or there is no low cost workspace to be “reprovided” as part of a major development scheme, new affordable workspace should be provided as follows: ii. In remaining POAs, the CAZ and town centres: at least 10% (offset by the amount of low cost employment floorspace provided) of the new employment floorspace (gross) should be affordable at no more than 60% of the locality’s market rent in perpetuity, subject to viability.”

LP27 Protecting and Promoting Office Floorspace in the Borough Reprovision of Low Cost Employment Floorspace

Affordable Workspace

[27]The desirability of preserving an existing use of land may by itself afford a valid planning reason for refusing permission for an alternative development: see Westminster City Council v British Waterways Board

[1985] AC 672

, at 682-3 (per Lord Bridge of Harwich). Provided that there is a reasonable probability that the use would be preserved if permission were refused, the desirability of preserving an existing use of land is a material consideration in public law terms: see London Residuary Body v Lambeth LBC

[1990] 1 WLR 744

, at 751-2 (per Lord Keith of Kinkel). On the other hand, Lord Keith expressly rejected the proposition that had found favour with the Court of Appeal in that case that there was a “competing needs test”. All that was required was that the decision-maker should have regard to the provisions of the development plan (now s. 70 of the 1990 Act) and any other material considerations arising in the circumstances of any particular case. Further, I do not read Lord Keith’s opinion as suggesting that the desirability of preserving an existing use is a mandatory material consideration: it will always depend. On the facts of the London Residuary Body case, the desirability of preserving an existing use clearly was relevant.

[28]Given that Holborn Studio’s Grounds raise a point which the other parties contend was not advanced before the Inspector, I need to recall to mind the guidance given by Holgate J, as he then was, in Trustees of the Barker Mill Estates v Test Valley Borough Council

[2016] EWHC 3028 (Admin)

;

[2017] PTSR 408

, at para 77:

“In an application for statutory review of a planning decision there is no absolute bar on the raising of a point which was not taken before the Inspector or decision-maker. But it is necessary to examine the nature of the new point sought to be raised in the context of the process which has been followed up to the decision challenged to see whether the claimant should be allowed to argue it. For example, one factor which weighs strongly against allowing a new point to be argued in the High Court is that if it had been raised in the earlier inquiry or appeal process, it would have been necessary for further evidence to be produced and/or additional factual findings or judgments to be made by the Inspector, or alternatively participants would have had the opportunity to adduce evidence or make submissions (or the Inspector might have called for more information) (see e.g. Newsmith at paragraphs 13 to 16; HJ Banks Ltd v Secretary of State [1997] 2 PLR 50; R (Tadworth and Walton Residents' Association v Secretary of State for the Environment, Food and Rural Affairs [2015] EWHC 972 (Admin) paragraph 95; R (Kestrel Hydro) v Secretary of State for Communities and Local Government [2015] EWHC 1654 (Admin) paragraphs 66 to 67; Distinctive Properties (Ascot) Limited v Secretary of State for Communities and Local Government [2015] EWHC 729 (Admin) at paragraph 49).”

GROUND 1(a)

[29]This Ground possesses three interrelated limbs. The context is the possibility of alternative internal layouts. Limb 1 is that the Inspector erred in failing to apprehend that the internal layouts were fixed by the planning permission. Limb 2 is that the Inspector erred in fact in relation to the loadbearing walls. Limb 3 is that there was no evidence that an alternative layout would deliver the expected improvements to the scheme.

[30]I will address these individual limbs in turn. I have to say that in my opinion Limbs 1 and 2 have no merit whatsoever, and that the real sting of Holborn Studios’ complaint under this overarching rubric is located in Limb 3.

[31]GHL’s planning application contained proposed internal layouts. I have examined the 2017 application drawings. During the course of the Inquiry, various criticisms were made about these. For example, aside from the transfer slabs, there were concerns about how infinity coves could be provided in the context of spaces which contained doors into other rooms. The evidence was that these doors would break the visual continuity of any horizon-free background.

[32]In Mr White’s closing submissions to the Inspector, it was said that the internal layout was “indicative” only. Mr Harwood relied on that statement in support of a submission that the layout would have to change before the works were completed. In the light of Sage, that would be impermissible.

[33]Mr Harwood further submitted that Mr White’s legal solecism is visible in the Inspector’s reasons on this topic:

“36. The appeal would result in the demolition of the existing studios and ancillary space with its “reprovision” within the proposed basement mainly. In assessing the suitability of the basement “reprovision” accommodation, I am aware that the internal arrangement would most likely change at a later date to reflect the individual needs of a particular occupier/s. … 38. Based on the evidence presented, I am satisfied that the basement internal arrangements necessary to accommodate the appeal site’s cultural facility could include adequate floor to ceiling heights, taking account of the need for ventilation, other services, an adequate slab to provide column-less spaces and floor and ceiling finishes. That is the case, even though calculations to support that view are not presented at the stage of the design process. I do however accept that the final structural solution may provide less flexibility for future users if the internal walls need to be loadbearing. However, that would not materially impact the use of the space as a cultural facility. 39. In addition, an alternative internal layout, the details of which would be defined at a later date, could provide for infinity coves and appropriate depth of field. In addition, the internal spaces could be arranged to segregate visitors as required for some television filming …”

[34]Thus, at two places in her decision letter, the Inspector refers to changes in the internal layout which would be defined and take place at a later date. Beyond that, exactly when is not specified.

[35]If what the Inspector meant by this was that these changes could permissibly occur pre-completion and in a manner that would depart from the approved plans, I would hold that she erred. That is because Condition 1 of the planning permission required that the Development be carried out strictly in accordance with the approved plans – and these included the internal layout – and that at the pre- as opposed to post-completion stage no deviation from those plans was permitted: see Sage, paras 19 and 23. I express the matter in these terms because it was common ground before the Inspector, and in any event entirely clear in law, that after the works had been completed the internal layout could be changed without planning permission.

[36]Contrary to Mr Harwood’s submissions, I do not conclude that the Inspector perpetrated the elementary solecism that has been attributed to her. There was a mass of evidence adduced by GHL to the effect that the proposal was for a “shell” (that is what was meant by “indicative”) and that, as GHL’s surveyor put it, “virtually all businesses require some level of fit out”. Further, as the scheme architect explained:

“11.4.1. … The basement areas within the appeal scheme have been designed to provide flexible space which could be used by a variety of creative industries. … 11.9.2. The spaces provided can be used as photographic studios and they can be fitted out and adjusted to suit a variety of different photographic needs.”

[37]Thus, in my judgment the references to “at a later date” should be read and understood in two possible, overlapping ways: either as being to the likelihood of a “fit out” which would not change the features shown on the plans; or to amendments to that layout once the scheme had been developed. It is to be noted that the design plans were considering the design up to RIBA stage 3. Moreover, I fully take on board Mr White’s submission that the imposition of Condition 1 is flatly inconsistent with the idea that the Inspector somehow had in mind pre-completion internal changes which necessitated a departure from the approved plans.

[38]In this regard, I pressed Mr White on the issue of the loadbearing walls. I did this for the obvious reason that if structural changes were required to ensure that the building was adequately supported, the addition of transfer slabs might have led to necessary consequential changes to the internal layout which perforce departed from the approved plans.

[39]The position here, as Mr White carefully explained to me, is that Mr Davy’s uncontradicted evidence before the Inspector was that the relevant loads did not need to be supported by columns within the basement but were designed to be taken by a 1.4 m. transfer slab at ground floor level. I have examined the drawings which buttress that analysis. What is said at para 11.16.8 of Mr Davy’s report is that:

“Furthermore, it should be noted that the internal walls, door locations and door sizes of the appeal scheme can be adjusted to suit the exact specifications of the future tenant. Whether it be for photographic studios or other cultural use.”

The premise of this opinion is that changes could occur post-completion. Further, according to Mr Daly’s oral evidence, the only structural features that could not be changed was the structure next to the goods lift and stairwell, and the perimeter walls. In other words, there were no structural reasons militating against adjusting the internal walls elsewhere.

[40]For all these reasons, I cannot accept Mr Harwood’s submissions under Limb 1 of Ground 1(a).

[41]Turning to Limb 2, the contention here is that the Inspector perpetrated an error of fact in relation to the issue of the loadbearing walls: see the oft-cited, but rarely successfully applied, decision of the Court of Appeal in E v Secretary of State for the Home Department

[2004] EWCA Civ 49

;

[2004] QB 1044

[42]At DL38 (set out above) the Inspector addressed the transfer slab issue, observed that the necessary calculations did not need to be presented at this stage of the design process, and that “the final structural solution may provide less flexibility for future users if the internal walls needed to be loadbearing”. On one analysis, this last clause reflects a misunderstanding of Mr Davy’s evidence and undervalues GHL’s case. Mr Davy’s caveats related only to the area next to the goods lift and stairwell, which he also described as the “core” of the building. Be that as it may, this is hardly a point that avails Holborn Studios, and it must be observed that the Inspector went on to say that this “would not materially impact the use of the space as a cultural facility”. That was a planning judgment she was entitled to make. It follows that the loadbearing walls issue travels nowhere.

[43]Aside from this, Mr Harwood was in my view clutching at straws by submitting that the issue regarding the internal walls being loadbearing was an “established fact”. The high watermark of Holborn Studios’ case was a letter from Tullys, a firm of structural engineers, to the effect that “the internal walls at basement level between the studio spaces [should be] formed as loadbearing reinforced concrete walls to assist in limiting the depth of the ground floor transfer structures above these spaces”. However, Mr Picton (the author of the letter) was not called to give evidence, and when cross-examined on this topic Mr Davy gave the evidence I have already mentioned. I have to say that in my opinion the present case is a very long distance away from falling within the rare category of “established fact”.

[44]For all these reasons, Limb 2 of Ground 1(a) fails.

[45]By Limb 3, it is contended that there was no evidence on which it could be found that the layout could be changed to accommodate infinity coves, appropriate depth of field and segregation of subjects which the Inspector accepted was required.

[46]Counsel, with respect, have muddied the waters in various ways, but I propose to examine this aspect of Ground 1(a) on the premise most favourable to Holborn Studios: namely, that although their particular or bespoke requirements did not provide the relevant yardstick for the purposes of the cultural polices, what was relevant here were the requirements of a photographic studio which included infinity coves and an appropriate depth of field. I do not propose to examine Limb 3 on the more general premise that any cultural facilities should be considered.

[47]This is advanced as a pure no evidence challenge. The clear difficulty here is that there was evidence from GHL’s witnesses that the basement could be fitted out as photographic studios. According to Mr Marks’ evidence, Mr Davy was cross-examined on this topic and he stated, in line with the drawings I have seen and the annotations on them, that he was confident that the layout of the basement could accommodate both infinity coves and arrangements for depth of field. Further, the Inspector made an express finding to that effect: see DL39. The Inspector also found, deploying her planning judgment and expertise, that the internal spaces could be arranged to segregate visitors as required for some television filming.

[48]Holborn Studios’ real complaint is that the proposals for the basement did not meet their own high standards as a nationally-renowned photographic studio. Mr Harwood submitted more than once that the concept of “reprovision” requires a qualitative assessment to be made; and that, for example, a building suitable for a school orchestra would probably not be good enough for the Vienna Philharmonic (he did not put the submission quite in those terms). In my judgment, once one accepts that the “reprovision” does not have to be “like for like”, as the Inspector found, and that the bespoke requirements of any particular enterprise are not relevant, Mr Harwood’s qualitative argument loses much of its traction. The Inspector did find that the proposal could be fitted out to enable infinity coves etc. Accordingly, she clearly did have in mind a high-end and sophisticated studio rather than a more basic, high street operation. Ultimately, it was for the Inspector in the exercise of her planning judgment to assess whether this amounted to adequate and acceptable “reprovision” within the meaning of relevant policies.

[49]For all these reasons, I must reject Limb 3 of Ground 1(a).

GROUND 1(b)

[50]Holborn Studios does not have permission to advance this Ground. In my view, it is by a country mile its strongest Ground in this claim and the only one that raises a real point of principle. I therefore grant permission and proceed to consider this Ground on its merits.

[51]By Ground 1(b), Mr Harwood contends that it was irrational for the Inspector to find that the scheme amounted to the “reprovision” of the cultural facility, as required by policy, in particular given the permitted use, design and the lack of control of the use of the building.

[52]Mr Harwood submitted that this Ground is intimately wrapped up with Ground 1(a). Perhaps fortunately for his clients, its destiny does not depend on Ground 1(a) being correct. He submitted that it was irrational for the Inspector to conclude that the cultural facilities were “reprovided” as required by the development plan. In particular:(1) neither the basement nor the ground floor and above office accommodation were designed for cultural facilities. Even more importantly for their actual use, they were not spaces which could only be used for cultural facilities (unlike, say, a theatre);

(2) the Inspector accepted that as designed and approved, the basement would not provide a photographic studio of the quality of the existing studio;

(3) a redesign was outside the planning permission, and there was no evidence that it could be done, but even if the basement could be improved for studio use, there was no basis for concluding that it would be;

(4) the ground floor and above were designed as offices, with no particular suitability for creative uses;

(5) the building (including the basement) could only initially be used for office uses (including creative uses within E(g)(i)). Other creative uses within E(g) could arise once the original office occupiers have moved out. Many creative uses identified by the developer (such as rehearsal rooms and galleries) could not be accommodated under the planning permission at all;

(6) no creative users had expressed a desire to occupy any space in the development. As the Appellant’s viability assessment and evidence frequently pointed out, the proposed market rents for 88.5% of the space were much higher than the current rents paid by creative users;

(7) the planning permission and obligation did not require any space to be occupied by creative industries. At the most, best endeavours had to be undertaken to let/licence the affordable workspace (equivalent to half the basement) to an affordable workspace provider who serves creative industries. There was no obligation on that provider to let the space to a creative use, or even to try to do so.

[53]In short, submitted Mr Harwood, the planning permission was for offices which were not designed for cultural facilities, they could not lawfully accommodate many of them, were not of the quality of the existing facilities, there was no requirement by approval or design for their use as cultural facilities, and commercial considerations militated strongly against their use as cultural facilities. Accordingly, submitted Mr Harwood, the Inspector’s overall conclusion that the scheme amounted to the “reprovision” of the cultural facility was irrational.

[54]My point of departure is to observe that Mr Harwood’s seven points collapse on analysis into rather fewer, that some of these matters I have already ruled on (e.g. items 2 and 3), and that these submissions do not always seek to grapple with what the Inspector said in her decision letter.

[55]I pressed Mr Harwood as to what relevant policies required on the facts of this case. Logically, there are three possibilities.

[56]Approach 1 is that “reprovision” means that the proposal should be suitable for Holborn Studios’ specific requirements. As I have said, Mr Harwood did not go that far before me, and my reading of his closing submissions to the Inspector is that he adopted a similar position.

[57]Approach 2 is that “reprovision” means any photographic studio that could properly be described as a cultural facility. Some more basic photographic studios could not be. Mr Harwood favoured that interpretation of the relevant policies, and it was in this regard that he advanced his submissions about the need for comparable quality: see, for example, para 26 of his written closing submissions (“the principal issue is the loss of high quality still and film photographic studios on the site …”).

[58]Approach 3 is that “reprovision” means any cultural facility not limited to photographic studios. Both before me and the Inspector (see, for example, para 25 of his closing submissions) Mr White favoured that interpretation, adding for good measure that whether there are other facilities available on different sites altogether is relevant. Mr White also sought to persuade me, wrongly in my view, that Mr Harwood’s position before the Inspector aligned with Approach 3. Paragraphs 161-167 of Mr Harwood’s closing written submissions to the Inspector, referred to by Mr White in this context, simply do not bear that interpretation. It is true that paras 23 and 24 of Mr Harwood’s closing submissions did refer to “other creative businesses” that were currently at the Site, but I reiterate what he submitted under para 26. My interpretation of Mr Harwood’s argument was that these other creative businesses were part of the cultural facility/hub and/or that Holborn Studios were a magnet for other creative businesses, but that if relevant policy objectives were to be fulfilled photographic studios would need to be preserved. Ms Hutton also appeared to favour Approach 3 and submitted that Mr Harwood was not in fact challenging the Inspector’s interpretation of relevant policies but rather their application.

[59]In my opinion, Mr Harwood was seeking to challenge the Inspector’s interpretation of policy as much as its application, and I should approach this Ground on that basis. The submissions of both Mr White and Ms Hutton were able and clear, but both of them (and Mr White in particular) spent too much time in my view trying to repackage Mr Harwood’s submissions and to persuade me that Mr Harwood is now running a case which was not advanced below.

[60]Before examining the Inspector’s findings in an endeavour to identify which of my three approaches she applied, I should take further time in examining the submissions made to her on this topic. I need not elaborate further on Mr White’s submissions. I have already touched on a number of Mr Harwood’s submissions. Further, at paras 42 and 43 of his written closing submissions Mr Harwood sought to repudiate the notion that the above ground offices could be used for cultural facilities. They are not designed as such; their use is not limited to cultural uses nor is there any bias in favour of cultural uses; and:

“43. [GHL’s] belated attempt to rely on the above ground offices is important because the basement is much smaller than the current cultural facility. … The great majority of the present floorspace constitutes the [existing] cultural facility, all can realistically be occupied as such, and all of the cultural facility is protected.”

[61]Para 37 of the LPA’s closing submissions contended that “the Committee was entitled to conclude as a matter of fact, that the proposal would result in the loss of the existing photographic studio use, a cultural facility in use by creative industries”. Accordingly, the LPA was not certainly proposing my Approach 3 and may have come close to espousing Approach 1.

[62]The Inspector found as follows:(1) The majority of the space is in use either in the photographic or film industries or other creative industries (DL30).

(2) Holborn Studios contributes to London’s infrastructure (DL31).

(3) “I accept the existing use could be described as a creative hub” (DL32).

(4) “For these reasons, I am satisfied that the appeal site’s use falls within the definition of a cultural facility within the meaning of London Plan policy HC5. That policy supports London’s cultural and creative industries, stating that development plans and development proposals should protect existing cultural venues, facilities and uses where appropriate. Whilst policy HC5 provides direction on Council’s policy development to support that aim, it also refers to development proposals. No substantive evidence is before me to indicate that it would not be appropriate to protect the cultural facility in this case.” (DL33)

(5) ““reprovision” in this case does infer [sic] something that would enable the cultural facility/cultural hub to still function as such” (DL34). In context, particularly in light of DL31, 32 and 35, I would hold that the Inspector clearly concluded that the (existing) cultural facility/cultural hub includes photographic studios.

(6) “the appeal would result in the demolition of the existing studios and ancillary space with its reprovision within the basement mainly.” (DL36)

(7) Looking just at the basement, this area could be fitted out to accommodate “the appeal site’s cultural facility” (DL38), which in my judgment means, in this context, a photographic studio: see also DL39 (with its specific references to functional infinity coves and appropriate depth of field) and the first sentence of DL41 (which examines the particular needs of Holborn Studios).

(8) The basement could also be used by an alternative operator in a different cultural or creative industry (DL41, second sentence).

[63]Pausing there, I need to set out DL 43, 44, 45 and 47 in full:

“43. However, I acknowledge that the use of the ground and first floor use would not be restricted to existing or indeed creative/cultural uses and at present there is no bias in favour of such uses. However, that does not mean that the opportunity for those types of uses to take up the proposed floorspace is not available. Whilst a decanting strategy is not before me, that could be addressed through negotiation at a later stage should existing users wish to take up the proposed floorspace. 44. Whilst the office floorspace has not been designed as a cultural facility, I see no reason why an internal fit out could not reflect the bespoke requirements of the cultural/ creative industry end user. Whilst noise and other impact assessments were carried out on the basis of a Class E(g) (i) use, Class E(g) uses should be acceptable in a residential area. That would include within a mixed use scheme, such as the appeal development. Necessary measures to ensure acceptable living conditions for future residential occupiers, would be required by suggested planning conditions and provisions io the s106 Obligation. Therefore, I have no reason to conclude that cultural uses would not be acceptable as part of this mixed use scheme. 45. I acknowledge that the basement would not reprovide all of the existing floorspace in creative uses. However, use of part of the proposed office floorspace would be possible and enable all of the cultural facility/creative hub floorspace to be reprovided whilst still ensuring an office led scheme to satisfy the requirements of development within the POA. However, taking all matters into account the basement accommodation could acceptably reprovide for the existing cultural facility/creative hub. … 47. Taking all matters into account, on balance, I conclude that the proposed development would not adversely affect the provision of cultural facilities in use by creative industries. It would therefore accord with London Plan policy HC5 and Local Plan policy LP10.”

[64]Reading paras 30-47 as a whole and in a common sense way, I remain unclear as to whether the Inspector was consistently applying Approach 2 or Approach 3. In the first part of her analysis on this topic, the Inspector was clearly applying Approach 2 because she was considering the issue of “reprovision” in the context of a high-end photographic studio. Her reference to the need to “protect the cultural facility” in DL34 is clearly a reference to the need to protect the “studio and ancillary space”. That is also made clear by DL36, and the analysis up to and including the penultimate sentence of DL41 which is examining the acceptability of the basement area qua potential photographic studio. In my judgment, therefore, from DL30 to the final sentence of DL41 the Inspector was applying Approach 2.

[65]The application of Approach 2 to DL30-41 (save for the final sentence of DL41) was entirely reasonable and in line with the evidence that the Inspector had received. Although there were other cultural uses going on, the premise of the Inspector’s analysis was that Holborn Studios as a photographic studio was the most important and significant cultural use taking place. The other uses were very much subordinate or, possibly, ancillary. In such circumstances, I consider that Approach 2 was undoubtedly the correct approach to adopt in the particular circumstances of this case. What is more, it is the approach that the Inspector in fact adopted in the paragraphs I am currently examining, although she did not express herself in those terms.

[66]Unfortunately, the Inspector began to depart from these sound tramlines in the final sentence of DL41. There, she introduced for the first time the idea that the basement could make “reprovision” for other cultural or creative industries. The difficulty with this analysis is that(1) it constitutes a clear departure from what is said earlier,

(2) it does not reflect her evidentiary conclusions, and

(3) there is nothing to prevent the whole of the basement being dedicated to such other uses. The reference to other cultural or creative uses brings into scope my Approach 3 which in the circumstances of this case is not consistent with relevant policy.

[67]At DL42-44, the Inspector adverted her consideration to the ground and first floor of the building. Her line of reasoning appears to be that some of the office floorspace could facilitate existing cultural and creative uses, and “in that way all of the existing floorspace in creative use could be provided as part of the appeal development”. However, Mr Harwood was right to submit that the office space has not been designed as a cultural facility, and that there is nothing to restrict its use to “existing or indeed creative/cultural uses”. Further, as the Inspector says, echoing a written submission Mr Harwood made to her and which I have already mentioned, there is no existing bias in favour of such uses. The sentence that follows, “however that does not mean that the opportunity for those types of uses to take up the proposed floorspace is not available”, is difficult to fathom. The gravamen of the policies is to secure “reprovision”, not to leave that door open as a bare possibility.

[68]It is quite clear that at this stage of her reasoning the Inspector is not limiting her consideration to use as a photographic studio but to any cultural use. She has embraced, perhaps without realising it, my Approach 3.

[69]I turn now to DL45. In my judgment, it is replete with difficulty. In particular:(1) the first sentence is obviously correct, but fails to address Mr Harwood’s submission that the basement is too small in the context of relevant policy. Contrary to Ms Hutton’s submission that the Inspector was not being asked to address quantity as opposed to quality, she clearly was.

(2) it is not clear in relation to this first sentence whether the Inspector has in mind photographic use or any cultural/creative use. Either way, it is difficult to understand how the basement in isolation is adequate (and that is not the finding the Inspector makes in this first sentence), and the Inspector fails to explain how and why it could amount to “reprovision”.

(3) the second sentence, which picks up DL42-44, addresses the possibility that the upper floors could enable or facilitate “reprovision”. However, these paragraphs do so on the premise that cultural use is no more than possible and that any cultural use will do.

(4) the third sentence is completely unclear. The Inspector appears to be saying that the basement alone could acceptably “reprovide” cultural facilities, but her reasoning comes nowhere near addressing Mr Harwood’s submission on quantity, and is also inconsistent with the penultimate sentence of DL42 which suggests that the basement alone would not be sufficient. Further, the Inspector’s reasoning is altogether opaque: is she addressing use as a photographic studio (in which event, there would at least be relevant “reprovision”, albeit not enough of it), or is she bringing into consideration other cultural uses altogether, as she started to do in the final sentence of DL 41 (in which event she would clearly be erring, but for a different reason)?

[70]My provisional view when I first read these papers was that DL45 was flawed. Having heard counsels’ submissions, I was inclined to think that it could be supported although this required further reading and analysis on my part. I have sought to undertake this. Upon further reflection I am completely satisfied for the reasons I have given that the Inspector’s approach cannot be supported, is internally inconsistent, is irrational, and that her reasoning is wholly unclear. At the very least, it was incumbent on the Inspector to explain how and why the basement alone could constitute acceptable “reprovision”.

[71]There is a further difficulty. Whereas it is true that Holborn Studios did not ask the Inspector to impose some sort of planning condition or obligation on GHL to provide accommodation for the existing cultural use in the basement and elsewhere, I do not believe that Mr Harwood is taking a new point in this court. It was always his case that there were no restrictions on what GHL could or would do in the context of an application which in this part of the building was for use as office accommodation, and in my opinion in the context of these policies the Inspector should have addressed this issue head-on. Instead, she deployed equivocal language in relation in particular to the ground and first floor (e.g. “could”, “may”), and even in relation to the basement she contemplated the possibility of other cultural uses. Even on the premise that Approach 3 is the correct one – not my preferred analysis in the particular circumstances of this case – there were insufficient safeguards. The concept of “reprovision” requires considerably more than a possibility or an opportunity.

[72]The cases of the Secretary of State and GHL are fortified by the planning obligation created on 14 October 2024 after the Inspector’s decision letter was promulgated, but only to a limited extent. The planning obligation relates only to the basement, and if I am right about the irremediable flaws in DL45 as a whole, and in particular the final sentence, the basement alone does not provide adequate “reprovision”. Furthermore, the post-decision planning obligation is capable of assisting the Secretary of State and GHL but only on the premise that Approach 3 and not Approach 2 is correct. In these circumstances, I need say no more about it save to observe that I cannot accept any of Mr Harwood’s textual points on the s. 106 deed.

[73]Given the possible wider ramifications of this case, I should say a little more about Approach 3. In my judgment, the meaning of the words “existing cultural venues, facilities and uses where appropriate” does not always raise a clear-cut question. It rather depends on what use or uses is or are “existing”. If the whole Site were occupied by Holborn Studios, there would I think be no difficulty. The existing use would be entirely as a photographic studio and other cultural uses could not be considered. If, on the other hand, the whole Site enjoyed a miscellany of uses which could be described as “cultural” but no specific use predominated, then Approach 3 could well be the correct approach. If, as here, there is more than one type of use but photography/film use predominates, or at least is evaluated by the Inspector to be the most significant in the context of these cultural policies, one may readily understand why the Inspector’s approach to this Development (at DL30-41, excluding the final sentence of DL41) proceeded sub silentio on the basis of Approach 2. She made a fact-sensitive assessment which was clearly within her margin of planning judgment. It follows that I am not to be understood as laying down any sort of hard-and-fast principle as to the interpretation of these cultural policies. Approach 2 is only the correct approach in the circumstances of this particular case because, in light of the Inspector’s findings, it reflects the nature of the cultural activities being conducted at present.

[74]I should also return to Mr White’s submission, made more than once, that the availability of other sites for photographic activities is relevant to the application of the cultural policies. As a matter of principle, they could be, because the policies refer to “uses where appropriate”. If there were a large site nearby suitable for Holborn Studios’ needs, that could properly be taken into account. However, the Inspector did not approach the issue in this way at all – see DL35. It follows that Mr White’s submission is simply not open to him.

[75]For all these reasons, I uphold Ground 1(b) on the basis that the Inspector did not apply these cultural policies in a manner which secured acceptable “reprovision” of existing cultural uses and/or that her reasoning on this key issue is inadequate.

GROUND 2(a)

[76]Holborn Studios does not have permission to advance this Ground, and in my judgment it is not arguable.

[77]First of all, I consider that the Inspector was entitled to conclude as a matter of planning judgment that a 60% employment floorspace scheme was achievable by the addition of mezzanine floors.

[78]Secondly, and in any event, at DL111 the Inspector held as follows:

“I accept that those mezzanines are not included in the scheme as permitted. Whether they are provided or not, given the viability evidence, the appeal development although it would not meet the 60% threshold at present, would accord [with] Local Plan policy LP27 in this respect.”

[79]Under policy LP27, the 60% figure is “subject to viability”. The viability evidence, which I will address in more detail below, was that it would not be viable to provide 60% floorspace. It follows that relevant policy would be complied with even without the mezzanines being installed and the 60% threshold being fulfilled. It equally follows that the addition of mezzanine floors was neither here nor there.

GROUND 2(b)

[80]By this Ground it is contended that the Inspector unlawfully refused to allow the up to date viability assessment which GHL had submitted to the Inquiry to be referred to once the latter had asked for it to be withdrawn.

[81]There is no merit in this Ground. I would not have granted permission for it to be advanced.

[82]On 9 December 2022 GHL submitted an updated viability appraisal which, I am informed, showed that the position had deteriorated since the date of the original appraisal filed in 2021. The LPA objected and on 4 January 2023 GHL withdrew this appraisal. No doubt GHL was concerned not to lose the Inquiry hearing date: it was due to start on 23 January 2023. The Inspector then suffered an accident and the Inquiry did not in fact begin until September 2023. In the interim, Holborn Studios submitted no viability evidence of its own and did not seek to put in or rely on GHL’s updated evidence. It was only at the very outset of the Inquiry that Holborn Studios sought to refer to this evidence.

[83]The Inspector dealt with the issue in this way:

“16. In its statement of case the appellant indicated that it intended to submit revised viability evidence. That evidence was submitted. The views of the other two main parties were sought. A topic specific draft SoCG on viability matters was circulated amongst the main parties. However, given the Council’s concern that it would not have the opportunity to interrogate that evidence, the appellant formally withdrew it. It therefore did not form part of the appellant’s evidence. 17. At the Inquiry, the R6 party expressed concern that the appellant’s withdrawn viability evidence was not included in the Inquiry core documents. The views of the main parties were sought. As that evidence was formally withdrawn by the appellant and therefore was not before the Inquiry it is not included in the Inquiry Core Documents.”

[84]In my judgment, that was an unimpeachable case management decision. The Inspector was effectively saying that it was now too late to seek to refer to this evidence. I cannot accept Mr Harwood’s submission that the updated report was “evidence in the case” and, albeit not his words, could not be airbrushed out. The Inspector had case management control over the evidence that could be adduced in fairness to all the parties. The correct course here had been for Holborn Studios to seek to rely on this evidence much earlier.

[85]Mr White made helpful submissions about the relevance of the evidence that had been excluded, and the significance of viability evidence as a whole. The evidence before the Inspector, which was not disputed, demonstrated that the Development in the form in which it was presented was not viable, and that (for example), the threshold for B1 employment floorspace could not be satisfied – to be viable, it could only be 54%. Had the revised evidence been admitted, the figure would have been even lower than 54%, because the position had deteriorated, although GHL was not seeking to argue for a lower figure. In one sense, therefore, the absence of this evidence could have made no difference to the outcome, save in the context of Mr Harwood’s attempt to turn the issue on its head. That attempt I now turn to address.

GROUND 2(c)

[86]By this Ground, Holborn Studios contends that the Inspector failed to take into account a material consideration, namely the merits of the existing use of the land as compared to a proposed development which fails to achieve policy expectations on viability grounds, alternatively failed to give adequate reasons.

[87]I see greater merit in this Ground than the previous elements of Ground 2. There is some force in the argument that one should be slow to permit a developer to devise a scheme that is not viable, and then deploy that as a justification for a departure from policy. In doing this, a (or even this particular) developer may not quite be guilty of the “cheat code” which was Mr Harwood’s forensic flourish, but it may be creating a sort of factitious vaulting box which enables policy constraints more readily to be overleapt.

[88]As I sought to tease out in oral argument, it seems to me that this Ground has two formulations. The first is that the Inspector simply failed to consider the planning merits of the existing use of the land. The second is that, when carrying out any necessary balancing exercise, the Inspector failed to weigh on the one hand the merits of existing use against, on the other hand, the merits (or demerits) of what was being proposed. The proposal failed to achieve relevant policy expectations in a number of respects, and could only be saved with reference to viability. The shortfalls are set out at para 67 of Mr Harwood’s skeleton argument and need not be repeated.

[89]I do not think that it is arguable that the Inspector somehow ignored the merits of the existing use. That was front and centre of Holborn Studio’s case. The Inspector expressly referred to existing use at DL113 and 114, and must have had sight of it more generally in light of the submissions made to her. Furthermore, I accept Mr White’s submission that the merits of the existing use were considered by the Inspector in the context of her conclusion about “reprovision”. Put another way, it is difficult to see how this formulation of Ground 2(c) could succeed if Ground 1 fails.

[90]Mr Harwood’s second formulation is subtle and intriguing, but I cannot accept it, for two reasons. First, the issue was whether the proposal complied with the development plan including relevant policies. These policies expressly stated that the objectives in question are “subject to viability”. Thus, if viability factors militated otherwise, as they clearly did, the exception to these policies applied and the polices themselves were fulfilled. The position would be different is GHL really was “cheating” (i.e. by deliberately designing a scheme that was not viable when it easily could have come up with a viable scheme), but the evidence did not go that far. What Mr Harwood seeks to do is to persuade me that the “policy expectations” (a somewhat tendentious formulation) should be addressed without reference to viability considerations at all, or on the premise that GHL should be proposing a different, and better, scheme. I reject that submission because(1) viability considerations are part and parcel of relevant policy, and

(2) unless the scheme has been devised, effectively in bad faith, to create the illusion of unviability, the possibility that a different scheme could be put forward is not relevant.

[91]Secondly, even assuming as I have done that regard should be had to the existing use, I baulk at the notion that there has to be some sort of “balancing exercise”, still less one that takes into account non-planning considerations (i.e. commercial decisions made by GHL). There is no “competing uses” test. All that may be required, putting the matter at its highest, is that the existing use is taken into account in the context of being a cultural use which, other things being considered, should be protected. This brings the argument back round to Ground 1(b).

[92]For all these reasons, Ground 2(c) must be rejected.

DISPOSAL

[93]I grant permission on Ground 1(b).

[94]I refuse permission on Ground 2(a).

[95]I uphold this claim for statutory review under s. 288 of the 1990 Act but only on Ground 1(b).

[96]I invite the parties to agree the terms of a draft Order which reflect this judgment.