Judge quashes planning permission for development of former hospital site over appraisal of relocation of 500-year-old tree

A Planning Court judge has quashed Tower Hamlets Council's grant of planning permission and listed building consent for residential development of the former London Chest Hospital.

The site’s use as a hospital ceased in 2015. It is a Grade 2 listed building, listed in 2016. It also lies within the Victoria Park Conservation Area. The proposal was to build 291 dwellings.

Within the grounds is a "veteran" mulberry tree, which was to be moved to another location within the site to enable the development to take place.

Actor Dame Judi Dench was among those who campaigned to prevent the 500-year-old tree being relocated to make way for the scheme.

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In Juden v London Borough of Tower Hamlets [2021] EWHC 1368 (Admin) the claimant, a local resident, applied for judicial review challenge on a range of grounds.

Sir Duncan Ouseley, sitting as a High Court judge, rejected all bar one of these grounds. However, he concluded that ground 4, which raised an issue about how paragraph 175c NPPF had been interpreted or applied in the appraisal of the relocation of the mulberry tree, succeeded.

The relevant section reads:

"Development resulting in the loss or deterioration of irreplaceable habitats (such as ancient woodland and ancient or veteran trees) should be refused, unless there are wholly exceptional reasons and a suitable compensation strategy exists."

In a report to Tower Hamlets’ Planning Committee, the council’s tree officer concluded on the balance of probabilities there was a greater likelihood the mulberry tree would survive than not, yet there remained a fair chance the tree might not survive.

Landmark Chambers said the claimant, a local resident, submitted that (i) in considering whether the risk of loss was acceptable, the Planning Committee was advised to take into account the fact that, even if the tree were lost, the development would still comply with paragraph 175(c) of the NPPF; (ii) on the correct interpretation of paragraph 175(c), the existence of “wholly exceptional circumstances” and the existence of a “suitable compensation strategy” were separate and cumulative requirements and (iii) the council had erred in taking into account the suitability of the compensation strategy in considering whether wholly exceptional circumstances would exist in the event that the tree was lost.

Sir Duncan found:

"109. [It] is clear to me that Members were being advised that they could take the risk that the tree would die or deteriorate, because the tests in 175c were met in the unlikely event that that happened. They then had to be advised correctly about the tests. There was an internal contradiction in the original Report about the existence of "wholly exceptional circumstances, " which was never wholly resolved. The specific amended paragraph in the conclusion, 17.5, was clarified orally, but the terms of that clarification by the Tree Officer are only those summarised in the Minutes in the Committee meeting. However, with the Crest Nicholson [the developer] notes, I might have concluded that the essential point had been made.

110. But the Members were also advised, up to the oral clarification, that the compensation strategy was part of those circumstances. That is simply wrong, on the true interpretation of 175c. The Crest Nicholson notes are quite clear in showing that Members were given a misinterpretation of 175c, on the role of the compensation strategy in "wholly exceptional circumstances". The Minutes do not expressly contain the error, nor do they expressly disavow the error. Ms Sheikh urged me to disregard the Crest Nicholson notes in favour of the approved Minutes. However, the Notes are fuller, and they are not inconsistent with the Minutes. There was no challenge by the Council to the accuracy of the Crest Nicholson notes. There could easily have been contradicting evidence, to the effect that the point of the clarification was to set this position out accurately, if that were true. Crest Nicholson could have explained that the notes were compiled using the written text, without appreciating the significance of what was being said orally, if that were true. There was no such evidence. Their value was urged upon the Council by Crest Nicholson. I cannot simply ignore the notes on the basis that they differ in this way from, but are not inconsistent with, the approved Minutes.

111. I have therefore concluded that the Members have not taken into account the policy which they were advised they were taking into account, and which they were advised had been met. They took into account something else, not very different but sufficiently different to create a legal error. A policy was misinterpreted; a material consideration was ignored.

112. I do not consider that I can hold that it was highly likely that the outcome would have been the same if that error had not been made. It might very well have been, but the issue was of importance to members, and to the public; the vote was a narrow one. Accordingly Ground 4 succeeds."

Richard Harwood QC of 39 Essex Chambers and Andrew Parkinson of Landmark Chambers acted for the claimant, instructed by Harrison Grant.

Saira Kabir Sheikh QC and Alexander Greaves of Francis Taylor Building appeared for Tower Hamlets.

Rupert Warren QC of Landmark acted for Crest Nicholson, instructed by Pinsent Masons.

Alastair Mills of Landmark issued written submissions for the Secretary of State for Housing, Communities and Local Government, instructed by the Government Legal Department.

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