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Secretary of State defeats challenge to refusal of permission for building described by inspector as "quite brilliant"

The High Court has rejected an appeal by a developer over a building described by a planning inspector as “a brilliant response to its context".

Mrs Justice Lang ruled in Starbones Ltd v Secretary of State for Housing, Communities and Local Government & Ors [2020] EWHC 526  that the Secretary of State for Housing, Communities and Local Government had not made any error of law in rejecting the application by developer Starbones.

Starbones applied in 2015 for a mixed-use building rising to 32 storeys known as the ‘Chiswick Curve on a 0.28ha site at the Chiswick roundabout in west London.

The London Borough of Hounslow refused permission and Starbones appealed but this was recovered by the Secretary of State for his own determination.

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An inspector recommended that planning permission and advertisement consent be granted.

He was enthusiastic about the design, with its “highly sophisticated glazing module, articulated by fins of different colour” which he considered would give the building “a dynamism that would make the approach by road along the M4 a very exciting experience”.

The inspector acknowledged the height was “well above what the council saw as appropriate” but concluded the Chiswick Curve was a “quite brilliant response to the difficult problems presented by the immediate context of the site”.

He decided harm to views of the nearby listed Kew Palace would be “less than substantial”.

But the Secretary of State still refused consent as he disagreed with the inspector's conclusion that the proposal was in accordance with the development plan and said it was contrary to local plan policies on the location and design of tall buildings and would do substantial harm to views of nearby Kew Gardens.

He also disagreed with the inspector over the design being “a brilliant response” as the scale and massing meant it did not relate to its immediate surroundings and would dominate the area.

Starbones argued that the Secretary of State failed to have regard to a material consideration that any tall building on this location would have a similar or worse adverse effect on Kew Gardens.

Lang J said: “In my judgment, this is a case where the claimant cannot be in any genuine as opposed to forensic doubt as to what the Secretary of State decided on the two issues of the alternative developments and legibility.

“Thus, the claimant has failed to establish that it has genuinely been substantially prejudiced by any inadequacy in the reasons given.”

She said the Secretary of State was not required to follow the decision of an inspector and that nothing in his decision letter supported Starbones’ submission that he failed to understood and apply paragraph 48 of the National Planning Policy Framework on emerging policies.

Mark Smulian

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