Back

Westferry Printworks: A Secretary of State decision signalling a change in direction on residential developments?

31st March, 2020

On 14 January 2020 the still relatively newly appointed Secretary of State for Housing, Communities and Local Government issued his decision on an appeal relating to the Westferry Printworks site (reference APP/E5900/W/19/3225474) (“the Decision”). Practitioners get very excited about Secretary of State housing decisions where appeals have been recovered or planning applications called-in. Do they indicate a new direction of travel on the application of policy or guidance or the weight which will be attached to material considerations in the planning balance? Is there anything we as advisers can take from the decision which will be helpful in helping to secure planning permission on other sites? It is also intriguing when one discovers that planning permission was granted on the site for a smaller scheme by the current Prime Minister when he was London Mayor.

The appeal was submitted on the ground of non-determination for a residential led mixed-use development including 1,524 units and was recovered for decision by the Secretary of State. The speed from submission of application (July 2018) to recovery (April 2019), to inquiry (August 2019) and determination (January 2020) demonstrates this was a decision processed very quickly by the system.

Tower Hamlets Council has reacted with fury to the decision. It appears clear from background documents that they felt under acute pressure because of the speed with which they had to pull their evidence together to meet deadlines. Although it is very clear that the scheme was not supported by the Council from a planning perspective, the key concern appears to be related to the fact that the decision was made just three days before the Council’s CIL charging schedule took effect, costing the Council an estimated £50m in CIL monies. Mayor John Biggs called the Decision “… a scandal and outrageous” and threatened legal proceedings.

Unsurprisingly, within the past couple of weeks it has become clear that Tower Hamlets have sought leave to challenge a decision they consider was “biased and favoured the developer” in the Courts.

The Decision itself follows the now formulaic approach of setting out the statutory framework in which the Decision should be made and applying the presumption in favour of the development plan and then weighing material considerations in the planning balance. An article of this size will do no justice to the complexity of this case (the inspector’s report alone is over 160 pages long) but the conclusions on the key planning issues were:

The earlier planning permission granted by Boris Johnson (“the Fallback”) had been implemented and was a “realistic fallback” if the appeal proposals were dismissed. It is clear that this was a really important material consideration in this appeal because in essence the Secretary of State concluded that if the appeal scheme did not go ahead, the Fallback might and so the impacts of the appeal scheme should be properly assessed against the Fallback, not on the assumption that the appeal site would remain undeveloped. The Secretary of State identified significant additional benefits that the appeal scheme would deliver in comparison to the Fallback.
In terms of the effect of scale, height and massing of the development and impact on character/appearance, the Secretary of State was clear that there would be policy conflicts and harm but concluded the harm should attract moderate weight.
In terms of heritage impacts, the Secretary of State applied the statutory requirements to have special regard to the desirability of preserving listed buildings (including their settings) affected by the proposals. He concluded that the harm was “less than substantial”, that considerable importance and weight should be given to the harm but that in accordance with paragraph 196 of the NPPF, that harm should be weighed against the public benefits.
Harm in connection with the recreational use of Millwall Outer Dock (which would be affected by the appeal proposals) should carry limited weight because the impact was not materially different to the Fallback.
In connection with housing need, mix and affordable housing (for which there was an acknowledged acute need):
the 21% affordable housing offered (although comprising a policy compliant tenure mix) did not in the view of the Secretary of State represent the maximum reasonable amount of affordable housing as required by the London Plan. However, in the absence of an alternative scheme (which could, for example, have been put forward by the Council), it was unclear what the maximum reasonable amount could be although it might be up to 35% which would be policy compliant;
the Secretary of State viewed the proposed late stage viability review as being of some limited benefit. As an aside, for all of you who advise on viability assessments, the inspector did accept that the Fallback could be used for assessing Existing Use Value for the purposes of the viability assessment;
the balance and mix was not policy compliant including in connection with family housing;
however, the absolute increase in affordable units from 140 (the number consented by the Fallback) to 282 was a benefit and should attract “significant” weight in the planning balance even though there was a five year housing land supply.
Moderate weight was attached to the social and economic benefits of additional employment and training during construction and during the operational phase, compared to the consented scheme.
Public open space, play space and semi-private space was policy compliant but the Fallback offered greater benefits than the appeal scheme.
The inspector went through the planning obligations to assess compliance with the CIL Regulations and attached moderate weight to planning obligations where the contribution was greater than the Fallback. Interestingly, the inspector concluded that a review mechanism which would have applied if the CIL charging schedule took effect before planning permission was granted did not comply with the CIL Regulations. This does not seem very logical. Why would it be inappropriate to be able to review the affordable housing provision over the site if a known additional cost took effect before planning permission was granted? However, the Secretary of State accepted all the recommendations of the inspector in this regard.

The Secretary of State concluded that the material considerations supported the grant of planning permission despite the conflicts with the development plan. Key to the decision was the substantial weight attached to the absolute increase in housing (and affordable housing) of the scheme compared to the Fallback which were considered to outweigh the harm, including to heritage assets.

On first review, this does seem to be a surprising decision. It is too easy to default to a view that the decision was politically motivated with a Conservative Secretary of State granting planning permission for a major residential development in a Labour controlled local authority in connection with a site where Boris Johnson had previously stepped in to grant planning permission when London Mayor. There has also been commentary suggesting the timing was deliberate to ensure that the Council did not receive CIL for the scheme but why should a decision which is ready to be issued be held up just because CIL is about to be introduced? A delay would inevitably have undermined the offered affordable housing provision of 21%.

The above said, the notion that an increase in the amount of housing compared to a realistic fallback is in itself sufficient to support the grant of planning permission is surprising. Housing and affordable housing need is particularly acute in London but in one sense all residential led schemes involve absolute increases in both housing and affordable housing. It follows that this material planning consideration could theoretically be used to support the grant of planning permission on almost any proposed residential development site. The Decision also illustrates the importance of fallbacks as providing a benchmark against which development proposals should be assessed.

However, what the Decision most clearly illustrates is that the weight to be attached to a material planning consideration is entirely a matter for the decision maker (unless the exercise of that planning judgement is irrational, of course, which the Courts have historically treated as difficult to successfully argue). It is therefore possible to grant planning permission within the current statutory framework even when a scheme is not policy compliant and significant harm is identified. That fundamental principle does of course provide significant opportunity to secure planning permission for schemes which are contrary to policy but it also illustrates some of the challenges in predicting whether planning permission will be granted, particularly on appeal. We await the outcome of Tower Hamlets’ legal challenge with anticipation.

The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.

Get in touch

To contact us, please fill out this form and we will get back in touch as soon as possible. Your personal data will be processed in accordance with our privacy policy which can be found here.

Thank you for your enquiry. We will respond as soon as possible.

First Name

Last Name

Phone Number

Location

Email Address

Service Required

Message