Pre-Action Protocol Letter Appendix

Appendix to letter dated 8th September 2017 from Organisation for Promotion of Environmental Needs Limited (Golden Lane) Limited to the City of London Corporation 
1.1       Bernard Morgan House (“BMH”) is situated in the City of London adjoining Golden Lane to the east, Fann Street to the north, Viscount Street to the west and BrackleyStreet to the south.  Immediately to the north of Fann Street is the Golden Lane Estate which is statutorily listed as being of special architectural and historic interest.  On the estate, the closest building to BMH is Bowater House.  The Barbican Estate, which is listed also, lies close by to the south of Cripplegate House which stands on the south side of Brackley Street; it too is statutorily listed.  Following the Second World War (“WW2”), on an area which had been devastated by bombing, BMH and the two estates were constructed.  The two listed estates were designed by the same firm of architects; they are highly regarded as examples of post-war modern architecture and in the adopted local plan, are singled out for special mention as part of the modern architectural heritage of the City (see paragraph 3.12.3 of the Local Plan).  The layout of both estates was spacious in contrast to the crowded network of streets destroyed in WW2.  In the north-west corner of the area defined by the four streets adjoining BMH is the Jewin Welsh Presbyterian Church, built in 1960 to replace its Victorian predecessor damaged during WW2.  In the Officer’s Report (“OR”) recommending the grant of planning permission the subject of this letter, at paragraph 115, the Chapel is described as “a non-designated heritage asset as a result of its strong architectural and historical interest” (see also OR para. 118).
1.2       The main part of BMH is a six storey “slab block” above an exposed lower ground floor.  There is a plant room on the seventh floor.  It is oriented north / south; to the west of it is a two storey wing adjacent to Brackley Street.  The overall size of BMH is 4,096 sq.m. (4,4,093 sq. ft) GIA.  “Slab block” is a term of art to describe a multi storey post-war rectangular building.  There are a number of slab blocks on the GLE estate including Bowater House.  
1.3       BMH was purpose built as a police section house providing accommodation for police officers.  It could readily be converted to provide private flats.  Despite its historic interest and its group value adjoining GLE, it is not statutorily listed but is considered to contribute positively to the setting of the GLE due to its architectural expression, and contribution to the urban grain (OR paragraph 89) and to be “of a degree of heritage significance, stemming from its architecture and relationship with the adjacent GLE and Jewin Chapel”. 
1.4       To the east of BMH on the corner of Golden Lane and Fortune Street, is a well used public park, known as Fortune Street Park.  Immediately to the south of that park is the Golden Lane Campus which includes, Prior Weston Primary School, The Golden Lane Children’s Centre and the Richard Cloudesley School (for children with physical disabilities and additional sensory needs).
1.5       A long lease of 154 years in BMH is owned by Taylor Wimpey UK Ltd which on 6th November agreed to purchase it from the City of London (“CoL”) for a premium of £30.4million.  The agreement for lease provides for an overage of £130 per square foot in excess of 77,000 square feet of net internal area (“NIA”).  CoL remains the freeholder.  
1.6       In the long lease provision was made in relation to any interference by the tenant to any rights to light and air enjoyed by the lessor’s neighbouring properties.    The agreement provides:  The Landlord hereby agrees not to seek an injunction against the Tenant (or its successors in title) relating to interference with rights of light and air enjoyed by Neighbouring Property in respect of the development of the Property by the Tenant (or its successor in title).”   The Landlord (COL) owns the freehold of the Golden Lane Estate to the north on which are buildings which enjoy such rights.
1.7       On 30th August 2017 , the City of London as Local Planning Authority granted on the application of Taylor Wimpey UK Limited planning permission for the demolition of BMH and the redevelopment of the site by the erection of a substantially larger building of 11,113 square metres GIA comprising ninety nine apartments.  The block ranges in height from four to ten storeys over a lower ground floor and double basement.  In paragraph 53 of the Officer’s Report (“OR”), it is stated that the proposal “would result in a significantly higher density and site cover than currently exists”.  In relation to the existing BMH and the neighbouring GLE to the north, it is stated at OR paragraph 56 that “[t]he current Bernard Morgan House and Golden Lane [Estate] share a common ‘grain’ or urban layout of low-slung horizontal blocks, set back from the plot boundary and rising above a generous landscape”.  At OR paragraph 69, it is stated that BMH with “[i]ts Modern Movement expression, with a long rectilinear horizontally, architectural form as a low-slung slab block rising above a generous landscape, and mix of robust traditional and modern materials shares a communality with the adjacent Golden Lane Estate and Jewin Chapel.  By contrast, the proposed scheme is described (at OR paragraph 56) as bringing “built development to the site boundaries in a denser reinterpretation of the Victorian urban grain prior to the Blitz” in which “will result in a more direct interface with the street”.  
1.8       At OR paragraph 58, one consequence of this is said to be that “[t]he character of Brackley Street and, to a lesser extent, Viscount Street, would change in terms of scale, light and openness, as the proposal would create somewhat of a ‘canyon’ effect…”.  At OR paragraph 72, the Barbican is described as “a clear departure from the scale and urban design of BMH and the GLE”.  
1.9       In the City of London adopted Local Plan (“CoL/LP”) the site lies within an area defined as “North of the City” which contains over fifty percent of the residential population of the City.  
1.10    By reference to the table of densities in Table 3.2 of the London Plan, the appropriate density range for the site is 215 to 405 units per hectare (equivalent to 650 – 1,000 habitable rooms per hectare).  The density of the permitted development is 489 units per hectare (equivalent to 1,252 habitable rooms per hectare).  
1.11    (i)      In paragraph 173 of the National Planning Policy Framework (“NPPF”) it is emphasised that requirements such as the provision of affordable housing should not compromise the viability of a development site.  Such a requirement should not therefore prevent a reasonable landowner from obtaining a competitive return for the land.  
(ii)     Policy 3.12 of the London Plan requires a LPA to seek the maximum reasonable amount of affordable housing.  In the CoL/LP Core Strategic Policy CS21 sets that amount at thirty percent of the total proposed housing on a site unless a viability study demonstrates that such on site provision is not viable, in which case sixty percent may be provided off-site or equivalent cash in lieu may be paid.  
(iii)    In the Planning Statement submitted with the application, DP9 (the planning consultants acting for the applicant) contended (at paragraph 6.45) that a payment in lieu would maximise the affordable housing contribution compared to provision on-site.  
1.12    (i)      Policy 3.5 of the London Plan requires new housing to be of the highest quality internally, externally and in relation to its context and the wider environment. 
         (ii)      In the adopted Local Plan, Core Strategic Policy  CS10 relates to “Design”.  The policy is “[t]o promote a high standard of design and sustainable buildings ... having regard to their surroundings and the historic and local character of the City by ... ensuring that the bulk, height, scale, massing, quality of materials and detailed design of buildings and appropriate to the character of the City and the setting and amenities of surrounding buildings and spaces”.
         (iii)     Development Management Policy DM 10.1 requires “all developments ... to be of a high standard of design and to avoid harm to the townscape and public realm, by ensuring that: the bulk and massing of schemes are appropriate in relation to their surroundings and have due regard to the general scale, height, building lines, character, historic interest and significance, urban grain and materials of the locality ...”.
(iv)    CoL’s Development Management Policy DM 21.5 requires new dwellings to have acceptable daylight commensurate with a city centre location.  
(v)     In the CoL/LP Development Management Policy DM 21.3 and paragraph 3.21.16 provide that all development proposals should be designed to avoid overlooking and to protect privacy, daylight and sunlight levels to adjacent residential accommodation, although due to the density of development in the City, avoidance of overlooking may not always be possible.  
(vi)    Policy DM 10.7 provides that the LPA will resist development which would reduce noticeably the daylight and sunlight available to nearby dwellings and open spaces to unacceptable levels having regard to the Building Research Establishment’s (BRE’s) guidelines.  Similarly, new development should be provided with acceptable levels of daylight and sunlight.  
(vii)   In the Planning Statement by DP9, it was contended that the Daylight and Sunlight Assessment prepared for the applicant by Point 2 Surveyors demonstrated that “the vast majority of habitable rooms… would satisfy the BRE guidelines both in terms of daylight and sunlight…”.  That contention proved subsequently to be incorrect.
1.13    (i)      National Policy relating to heritage assets provides (NPPF paragraph 134) that where a proposal would cause “less than substantial” harm to the significance of a designated heritage asset, the harm should be weighed against the public benefits of the proposal, including securing its optimum viable use.  Such harm includes harm to the setting of the asset which is defined in Annex 2 of the NPPF as “the surroundings in which a heritage asset is experienced”.  
(ii)     The Golden Lane Estate Listed Building Management Guidelines (“GLE/LBMG”) are adopted by the City as a Supplementary Planning Document (“SPD”) within the City’s Local Plan (see GLE/LBMG paragraph 1.8).  Paragraph provides that the estate “should be appreciated in its entirety… not only its various components… but also its setting within the surrounding urban fabric.  The views from and into the estate have become important, and part of its special architectural interest lies in its relationship to adjacent buildings.   Any developments on the immediate boundaries of the listed area should take into account the significance of the estate’s setting”.  
(iii)    At paragraph, it is stated that “[t]he characteristics of transparency, light and space are dominant throughout the estate.  The architects’ vision for all buildings… was that light and openness be experienced both internally and externally”.  The characteristics are acknowledged in the Officer’s Report at paragraph 81.  

2.1       In relation to the “policy context”, the report records:  
(i)         The policies in the London Plan and CoL/LP relating to design (see OR paragraphs 20 and 44 and Appendix A).
(ii)       (at OR paragraph 20) that the London Plan requires that new development should not “cause harm to the amenity of surrounding land and buildings in respect of overshadowing…”.
(iii)      (at OR paragraph 32) that DM21.1 of the Local Plan provides that “new housing will only be permitted where development would not… result in poor residential amenity within existing and proposed development…”.
(iv)      (at OR paragraph 33) that policy DM21.5 of the Local Plan required that “all new housing … complies with the London Plan’s Density Matrix standards” save that “in appropriate circumstances it may be acceptable for a particular scheme to exceed the ranges in the density matrix, providing important qualitative concerns are suitably addressed” (see OR paragraph 34).
(v)       (at OR paragraph 36) that Policy CS21 requires new housing to provide thirty percent affordable housing on site or, exceptionally, either sixty percent offsite or equivalent cash in lieu.  The LPA commissioned independent advice to review the applicant’s viability appraisal.  That advice concluded that the land value included in the assessment was reasonable given “the requirement on the City Corporation (as previous landowner) to achieve best value” (see OR paragraph 41).  Paragraph 42 stated that further advice from CoL’s consultant was that a contribution of £4.5million would be viable and would be equivalent to an affordable housing contribution of 27% and would be the maximum feasible and viable contribution and therefore compliant with Local Plan Policy CS21 and with the London Plan.  
(vi)      At OR paragraph 75, it is stated that “the architectural expression, style, materiality and good quality detailing of BMH makes it a high quality building of its time, with a contemporaneous relationship with the listed Golden Lane Estate”.  At OR paragraph 89 it is stated that “due to its architectural expression, form and contribution to the urban grain”, BMH “contributes positively to the setting of the GLE”.  Paragraph 88 of the OR refers to various “elements of the setting”, including it being “unfettered by looming development in the immediate vicinity” and there being “limited building development in the immediate setting”.  At OR paragraph 76, BMH is stated to be “of a degree of heritage significance because of its architectural and historic interest, stemming from its architecture and relationship with the adjacent GLE and Jewin Chapel”.  Demolition and redevelopment would result in the “total loss of that significance” (ibid).  OR paragraph 77 states that such loss “would … need balancing against the wider public benefits the scheme would deliver”.  At OR paragraph 90, however, it appears to be stated that the loss of BMH would not adversely affect the “heritage significance of the GLE”.  At OR paragraph 96, it is acknowledged that the development proposed to replace BMH “would be significantly bulkier” and that the replacement “would be viewed in contrast to the more pedestrian scale of Bowater House”.  Overall, however (at OR paragraph 99), it is concluded that “the proposed developments would result in less than substantial harm to the special architectural or historic interest and heritage significance of the Golden Lane Estate” and that the harm would not outweigh “the wider benefits of the proposal”.  
(vii)    With regard to the GLE, the OR states (paragraph 79) that it is “an exemplar of post-war comprehensive redevelopment” with a “meticulously planned townscape and generous open landscape” which delivers “a comfortable sense of enclosure while also feeling open and permeable” (OR paragraph 80).  At OR paragraph 81, it is stated that “the blocks are disposed to maximise daylight, sunlight, privacy and a sense of spaciousness and transparency”. 
(viii)   The OR records (at paragraph 83) that “[t]he views from – as well as into – the estate have become important.  Part of the special architectural interest of the estate lies in its relationship with adjacent buildings…”.  OR paragraph 84 states that “GLE should be appreciated in its entirety [including]… its setting within the surrounding urban fabric…  Any developments in the immediate boundary of the listed area should take into account the significance of the estate’s setting”.  OR paragraph 96 states that “the proposed scheme would be significantly bulkier than BMH”.  OR paragraph 111 states that there is an “important relationship” between GLE and BMH on the one hand and the Barbican tower and podium.

(ix)      (a)     In relation to daylight and sunlight to existing neighbouring residential buildings and open space, the impacts were recorded in the Officer’s Report as minor or negligible (see OR paragraphs 128 to 142). 
(b)     In relation however to daylight and sunlight in the proposed building, the relevant standards are acknowledged as not met in many instances (OR paragraphs 143 to 151).  

3.1       Relevant legal principles.  
3.1.1      It is well established that decisions by a Local Planning Authority in respect of an application for planning permission have to be taken lawfully and, if not so taken, are open to quashing by the High Court pursuant to Judicial Review.  
3.1.2      It is well established also that, in the case of grant of planning permission, in considering the basis on which the grant was made, if it has been preceded by an Officer’s Report recommending the grant, the decision may be assumed to have been made in accordance with the reasoning in that report unless there are persuasive indications to the contrary.  
3.1.3      In judging the lawfulness of a decision to grant, the issue for the court is whether the grant was rational in the legal sense of that term.  It is well established that for a decision to be rational the decision maker must: 
-       determine the application in accordance with the statutory development plan unless material considerations indicate otherwise; 
-       take into account all relevant considerations; 
-       leave out of account all irrelevant considerations; 
-       apply the substantive law correctly; 
-       construe and apply relevant policies correctly; 
-       act fairly; 
-       avoid making perverse judgements.  
3.1.4      Provided the decision is taken in accordance with the foregoing principles, the planning merits of the decision are not a matter for the court. 
3.2       OPEN, the proposed applicant for judicial review, represents local people affected by the proposed development.  Those people consider that, on its planning merits, to permit the proposed development would be mistaken and that the development would be harmful to surrounding amenity; they accept however that their opinion of the planning merits cannot invalidate the grant and that error of law must be demonstrated.
3.3       OPEN is advised that the decision to grant was unlawful for the following reasons:  
(i)      An officer’s report to Committee about an application for planning permission should be worded in a fair and balanced manner so as to enable members, in taking their decision, to have a full understanding of the relevant issues and of the facts, policies and reasoning relevant to determining those issues.  It is not sufficient or lawful for the report to profer planning judgements on such issues without intelligible, proper and adequate reasoning in support (as for example at OR paragraph 34 (last sentence) and paragraph 90).  
(ii)     In recommending acceptance of a payment in lieu of £4.5million for the provision of affordable housing 
-            there was no consideration of whether exceptional circumstances existed, as required by Local Plan Policy CS21, to justify departing from the policy requirement to provide such housing on site.  
-            there was no analysis or explanation of why the payment in lieu was the “maximum feasible and viable” and no acknowledgement that no such test was included on Policy CS21.  
(iii)    The recommendation to grant permission was influenced unlawfully by the fact that the Applicant had paid to the City of London for the grant of a long lease a sum which greatly exceeded its true market value taking into account the constraints limiting the development of the site.  
(iv)    The acceptance in the Officer’s Report of the land value included in the viability assessment in reliance on the City of London’s obligation to achieve best value (see OR paragraph 41) was irrational since the proper calculation of that value should have included the effect on it of having to provide affordable housing.  Accordingly, no account was taken of paragraph 4.1.5 of the Mayor of London’s advice in his Supplementary Planning Guidance on Housing published in March 2016.
(v)     No intelligible, proper and adequate reasons were given for recommending the acceptance of a development the density of which exceeded policy parameters (cf. OR paragraph 34).  
(vi)    In considering the impact of the proposed development on the setting of the Golden Lane Estate, no account was taken of the fact that layout, form and size of Bernard Morgan House was determined deliberately to be compatible with the layout, form and size of the southernmost buildings on the Golden Lane Estate.  Nor was any assessment made of the justification for replacing that relationship with one which would completely change the existing urban grain and destroy the existing communality between Bernard Morgan House, the existing Golden Lane Estate and Jewin Chapel (cf. OR paragraph 69) by demolishing Bernard Morgan House and replacing it with a building which would not recreate that communality.
(vii)   In recommending acceptance of the proposed building, no adequate and coherent explanation was given for its footprint, height and bulk compared to the building it is to replace and no analysis of the justification for the replacement of the acknowledged deliberately designed compatibility of the existing building with the Golden Lane Estate, by the proposed development with its far greater size and bulk, its cascading height and the manner in which it would loom over Fann Street and damage the setting of the Golden Lane Estate (cf OR paragraph 88).  
(viii)  In approving a building designed in accordance with the style known as “New London Vernacular” (OR paragraph 48) no consideration was given to whether the design of a new building within the setting of the Golden Lane Estate should be a bland replication of a design currently used in many locations in Central London or should have greater originality.
(ix)    There was no examination of the extent to which the proposed development would fail to respect the avoidance of ‘direct overlooking’
(x)     The levels of daylight and sunlight to the proposed apartments was agreed to be below the standards in the Building Research Establishment’s (“BRE’s”) guidance and therefore contrary to Policy DM10.7 requiring such levels to be “acceptable”.  The reason given for recommending that the breach of policy was tolerable was that it was due to the presence of existing structures that was irrational since every development has to be designed to fit into its existing surroundings.  Furthermore, no consideration was given to whether the development on the site could and should reflect the approach taken to the design of the GLE where it is acknowledged that “the blocks are dispersed to maximise daylight, sunlight, privacy and a sense of spaciousness and transparency” (OR paragraph 81).
(xi)    No account was taken of the extent to which the proposed development would block winter sunlight to the apartments in Bowater House thereby compromising the sustainability of the development.

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