High Court judge rejects latest legal challenge to Earl's Court redevelopment

October 14, 2013

A High Court judge has rejected a legal challenge brought by a group of residents opposed to the multi-billion pound redevelopment of Earl’s Court.

The claimants – the West Kensington Estate Tenants and Residents Association and the Gibbs Green and Dieppe Close Tenants and Residents Association – represented about 1,700 people who live in the estates.

They sought to challenge the Earl’s Court and West Kensington Opportunity Area Joint Supplementary Document (SPD) that had been adopted in March 2012 by the London Borough of Hammersmith and Fulham (LBHF) and the Royal Borough of Kensington and Chelsea (RBKC).

The claimants also objected to the proposals of the first interested party, EC Properties Limited, for development including the demolition of the estates and the construction of new housing, as well as other uses.

The Mayor of London, on behalf of the Greater London Authority as an interested party, took part in the proceedings as he intended to adopt the SPD as supplementary planning guidance, once the claim had been dealt with by the court.

LBHF resolved to grant outline planning consent for the scheme in September 2012, while RBKC resolved to grant outline planning permission for their element of the scheme in November 2012.

The main grounds of challenge were that:

The SPD ought to have been prepared as an area action plan under regulation 6 of the Town and Country Planning (Local Development) (England) Regulations 2004 ("the 2004 regulations"). As a development plan document, the statutory consultation and adoption process should have been followed;
When LBHF and RBKC adopted the SPD they erred in their approach to the provision of affordable housing and, in particular, in the use they made of a study of economic considerations, the "Estates Regeneration Economic Appraisal" ("the EREA");
The SPD did not conform with the development plan in its provisions for social housing; and
The SPD ought to have been subject to strategic environmental assessment ("SEA") complying fully with the regime for SEA, but was not.

In West Kensington Estate Tenants and Residents Association & Anor v London Borough of Hammersmith and Fulham & Ors [2013] EWHC 2834 (Admin) Mr Justice Lindblom rejected the claim save for ordering the councils to prepare a statement complying with the SEA regulations setting out how environmental considerations were taken into account in the preparation of the SPD.

On the first ground, the judge concluded – amongst other things – that when LBHF and RBKC adopted the SPD the development plan process had already achieved the identification of the relevant area of significant change.

He added: “No further or different act of identification was entailed in the preparation and adoption of the SPD. In truth, it was not the SPD that identified either the Opportunity Area or the housing estates as an area of significant change. This was done, deliberately and unambiguously, in the development plan. It was begun in the London Plan and it was completed in the core strategies.”

According to Mr Justice Lindblom, the SPD was “what LBHF and RBKC manifestly believed it to be, namely a supplementary planning document, and not an area action plan”.

He added: “The local planning authorities did not misconstrue the relevant statutory provisions. They did not act irrationally. They did not set out to produce an area action plan. Nor should they have done so.

“As a matter of law, the SPD was not, and did not have to be, an area action plan. Though it relates to the Opportunity Area, as it had to if it was to supplement the relevant provisions of the development plan, it does not identify the Opportunity Area as an area of significant change. It is, in law as well as in substance, a supplementary planning document, properly so called.”

In other findings the judge said:

The councils had not erred in their approach to affordable housing, and he could see nothing unlawful in the way the EREA was used in the preparation of the SPD.
The guidance in the SPD relating to housing, affordable housing and social rented housing was “wholly consistent with the policies of the London Plan and LBHF’s core strategy”. Nor was there conflict between the SPD and the equivalent provisions for housing and affordable housing in RBKC’s core strategy. The policies of the development plan aligned with each other, “and the principles and guidance in the SPD align with them”.
If the claimants' real concern was that the SPD softened the local planning authorities' commitment to retaining at least the existing amount of social housing in the Opportunity Area, and seeking an increase greater than any loss suffered through redevelopment, the judge believed they were wrong. “The SPD does not do that.”
The SPD had to be subject to SEA. “The SPD is a ‘plan or programme’ that was both ‘required by…administrative provisions” under article 2(a) of the SEA directive and ‘set the framework for future development consent’ for proposals in the Opportunity Area, under article 3(2).”
The SEA conducted for the SPD was an adequate and lawful assessment sufficient to complement the SEA undertaken for the London Plan and the core strategies. In the sustainability appraisals prepared for the draft SPD in March 2011 and for the final version of the SPD a year later in March 2012 the requirements of the SEA directive and the SEA regulations were, in substance, fully complied with.
No statement of compliance as required by article 9(1) of the SEA directive and regulation 16 of the SEA regulations had been produced. However, the remedy was for a mandatory order requiring the councils to produce a statement of the matters referred to in regulation 16(4) rather than the quashing of the SPD.

Mr Justice Lindblom’s decision is subject to appeal.

Cllr Nicholas Botterill, Leader of the London Borough of Hammersmith & Fulham, said: “This is the third legal challenge that has been dismissed since the turn of the year. We now want to put all our efforts into progressing this once-in-a-lifetime scheme so we can reap the huge rewards and bring major, life-changing improvements to Earls Court and the wider area.

“All qualifying tenants will be offered a brand new home, white goods, moving costs and support as well as a compensation package of £4,700. The legally binding contracts state that no tenant will move until their new home is ready to be occupied. All new homes will be provided in the area. All eligible home owners will receive 10% compensation on the independently-verified value of their home and the chance to buy back into the redevelopment with a 10% discount.”