Residents' group lose High Court protest against Manchester tower construction

Manchester City Council has defeated a High Court challenge from the Macintosh Village (Management) (MVML) leaseholders’ group to the construction of a 55-storey tower in the city.

Mr Justice Fordham divided the judicial review brought by MVML into six issues: cranes; dust; disabled car park users; consultation; ‘send a copy’ and injunction. He eventually found against MVML on all six and ordered it to pay the council £10,000 in costs.

MVML sought a judicial review of the council’s grant of planning consent for the tower on the site of a multi-storey car park. It would comprise 853 units of purpose-built student accommodation and 786 square metres of business incubator, amenity and public realm space. During construction, there would be two tower cranes on the site, one within a space which would continue to operate as a car park. The car park would ultimately be reconfigured and reduced from 391 spaces - 20 for parking by disabled people - to only 101 and five spaces respectively.

MVML is a residents' management company representing nearly 500 leaseholders in Macintosh Village, many of whom have residents' rights to park. Fordham heard that 30-40 of the current 391 spaces were in use at any one time and the officer’s report that recommended planning permission be granted had said all residents with parking rights would retain these and spaces will be kept operational at all times during and after the construction phase.

Fordham J began with the ‘cranes issue’. This covered whether officers seriously misled the planning committee by advising that access to the car park would only be restricted for very short periods while cranes were being assembled and dismantled at the beginning and end of the demolition/construction phase when there were in fact longer closures planned.

Fordham J said he could not accept that a councillor would have understood references to guarantees of access to parking space at all times “meant an absolute and wholly unqualified prohibition on any restriction of access to the car park” and that securing residents’ access to parking spaces was “not inconsistent with there being some safety-based intermittent interruption, where strictly necessary. “It would have defied common sense, and been clearly contrary to the public interest, if a planning condition was to be designed to preclude a restriction of access which was unavoidable on the grounds of safety and kept to an absolute minimum,” he said.

Turning to the ‘dust issue’, Fordham J said MVML had said there was a failure to consider the risk to the health of car park users during the demolition/construction phase from exposure to known carcinogens. MVML said the amended environmental statement’s [AES} identification of ‘receptors’ ignored residents, and it needed to be legally adequate and comprehensive to comply with the 2017 Regulations. Local residents who are car park users were assessed as ‘receptors’ when present in the living rooms of their homes, but not when entering the site as users of the car park. It said this was an important blind spot in the statement on a health issue “of clear and obvious significance”.

Fordham J said: “I cannot accept these submissions. The answer lies in reading the AES straightforwardly and as a whole. There was no blind spot. “The AES describes the construction phase environmental management plan as outlining 'measures to be implemented to mitigate potential environmental impacts on site operatives’ but also on ‘the local community’ to ensure ‘acceptable and safe levels. “The phrase ‘the local community’ is clearly intended to, and does, extend to all those locals who stand to be affected, but are not site operatives.”

On the disabled parking issue, Fordham J said Manchester did not fail to comply with the public sector equality duty and he was “satisfied that there was a rigorous consideration of the duty, with a proper and conscientious focus on the statutory criteria”. He dismissed a claim that consultation had not be properly undertaken as MVML had been aware of deadlines.

The ‘send a copy’ issue concerned whether Manchester breached the EIA Regulations by failing to send a copy of the amendments to the AES as required to under regulation 25. Fordham J refused permission to amend this ground for judicial review “on the basis that the point does not cross the familiar permission-stage threshold of arguability with a realistic prospect of success’.

He also dismissed MVML’s argument that those with parking rights might be entitled to an injunction. The judge said the issues raised fell “squarely in the realms of classic evaluation, involving judgment calls about relevance and weight” and officers’ approach had been lawful. “I can find no public law error in the officer’s report, remembering the questions of application, evaluation and weighing in the balance, and the identification of relevant matters within a reasoned appraisal are all primarily a function of the judgemental latitude entrusted to the planning authorities,” he said.

Mark Smulian is a freelance journalist specialising in local government, law, travel, transport, housing, construction and planning.