Following a four-week Public Inquiry in 2018, on 19 July 2019 the Secretary of State had dismissed appeals by the developer Starbones Limited against the decision of the London Borough of Hounslow to refuse planning permission for a mixed use tower (and associated advertisement consent) adjacent to the Chiswick Roundabout. In dismissing the appeals, the Secretary of State had disagreed with the recommendation of the Inspector. The controversial scheme was known as the Chiswick Curve, and if consented and built the tower would have been the tallest building in West London, rising to 120m and 32 storeys.
The Secretary of State had agreed with the Inspector that the proposed tower would harm the significance of a range of designated heritage assets including the World Heritage Site Kew Gardens and a number of iconic buildings within it including the Orangery and Kew Palace, as well as Strand-on-the-Green Conservation Area, Gunnersbury Park Conservation Area, and Kew Green Conservation Area. However, he disagreed with the Inspector as to the quality of the design and that the public benefits of the proposal were sufficient to outweigh the heritage benefits.
The developer challenged the Secretary of State's decision and sought to quash it under s288 TCPA. The challenge was heard by the High Court over 2 days on 11th and 12th February 2020. In addition to the Secretary of State, the London Borough of Hounslow and the Royal Botanic Gardens Kew appeared as Defendants.
By judgment dated 10 March 2020, the claim was dismissed by Mrs Justice Lang DBE.
The claimant submitted that the Secretary of State's decision was unlawful and should be quashed, and relied on two grounds:
1. That the Secretary of State had failed to have regard to the relative impact on heritage assets of an extant consent for a 59m building on the site known as the Citadel (or the Council's emerging plan for the area), or the relative impacts in terms of providing a 'legible hierarchy' , and did not provide adequate reasons ('Ground 1').
2. That the Secretary of State had failed to understand and apply paragraph 48 of the NPPF when determining weight to be given to the policies of the Draft Replacement London Plan ('DRLP'), and did not provide adequate reasons ('Ground 2').
In relation to Ground 1, the court found that it was unarguable that the Secretary of State had failed to take into account the Inspector's view that the Citadel or some other similar development would also have adverse impacts on the heritage assets, he clearly did take this into account. The Secretary of State had clearly considered matters of height and design and therefore legibility. Furthermore he had given adequate reasons as he was not required to address every point made by the Inspector and the reasons can be briefly stated, particularly where the disagreement with the Inspector is a matter of judgment based upon the appearance and visual impact of a building. It was not the Secretary of State's role to prescribe criteria to be met for a future application to succeed. Nor, in any event, was the issue of 'legible hierarchy' a "principal important controversial issue" (applying the guidance in South Bucks).The court added that there is no requirement that the Secretary of State must visit the site before departing from the opinion of the Inspector who had conducted a site visit, provided that there was sufficient material before him on which he was reasonably able to make a judgment on visual impact.
In relation to Ground 2, there was no error of law in the Secretary of State's approach. He had correctly directed himself in accordance with paragraph 48 of the NPPF and applied it to the facts in deciding that as the DRLP was still at a relatively early stage, objections were not yet fully resolved and the policies might still be subject to change, so that the DRLP policies should carry limited weight (and therefore the Secretary of State had given less weight than the Inspector to the provision of housing and affordable housing in the balance). This was an exercise of judgment , not a misinterpretation of the NPPF. The court also noted first that the Claimant's own position at the Inquiry was that the DRLP should only be given limited weight, and second that in any event the evidence provided to the court by the Council demonstrated that there were unresolved objections to the relevant policies at the date of the decision. Again the court found that the Secretary of State had given adequate and intelligible reasons, but in any event the weight to be given to the DRLP was not a "principal important controversial issue" at the Inquiry since it was not disputed that it should be given limited weight.
Accordingly, both grounds were rejected.
Richard Ground QC and Ed Grant represented the London Borough of Hounslow.