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Out-Law News 2 min. read

Court of Appeal allows legal challenge of Shell Centre redevelopment


The Court of Appeal has agreed to hear a legal challenge against the Shell Centre redevelopment in London. Local resident George Turner has now been granted permission to appeal communities secretary Eric Pickles' decision to approve the scheme. 

Earlier this year, the High Court dismissed Turner's claim that the planning inspector who reported to the communities secretary had made errors of law in coming to his conclusions.

Turner had argued that the planning inspector had failed to properly consider the viability of the proposed scheme and the level of affordable housing in coming to his recommendation. He claimed that the inspector ought to have insisted that a confidential viability report produced for the developers by planning consultancy Quod was disclosed to the inquiry rather than relying on a review of the report produced by BNP Paribas (BNPP) on behalf of the Council.

Braeburn Estates, a joint-venture between Canary Wharf Group and Qatari Diar Group, submitted plans to Lambeth Council in 2012 for a mixed-use development. The plans will see the existing 1950s 27-storey Shell Tower remain in place and the construction of eight buildings ranging between five and 37 storeys in height. The buildings will comprise up to 877 new homes, including 98 affordable homes, as well as 76,000 square metres of office space, shops, restaurants and cafes.

Turner issued a statement on his website stating that he had "heard news that the Court of Appeal [has] given [him] permission to take [the] case forward … The decision destroys the argument put out by [the] opponents that the case has no merit and has been thoroughly and properly considered."

Braeburn Estates has said that they "are very disappointed that there is to be a further appeal against [the] proposed redevelopment of the Shell Centre. It has already been through an exhaustive planning process which included a year-long public consultation, followed by approval from Lambeth council, the mayor of London and the secretary of state for communities and local government. A previous High Court challenge against the secretary of state’s decision has already been dismissed."

Planning expert Jennifer Holgate of Pinsent Masons, the law firm behind Out-Law.com, said "it is not in this instance surprising that Turner has been granted permission by the Court of Appeal, as this was a fairly controversial case. It raises two key issues: firstly, the use and interpretation of viability appraisals at planning appeals and how they should disclosed (and in what circumstances). Secondly, it raises an important public law principle of the perception of fairness by planning inspectors at appeal and the point at which their conduct is considered to be unfair to the point or prejudicial or biased."

"Regarding the first issue, the principle has been clearly established, and this was made clear in the High Court, that it must be open to applicants for planning permission to submit confidential material in support of their applications," she said. "Nonetheless, whilst this case does not concern freedom of information requests or the Environmental Information Regulations, developers and Local Authorities must be extremely careful when utilising any confidential information from a viability assessment as part of the decision making process."

"Particularly, any committee report must ensure it summarises the viability report’s non confidential information in a transparent, clear and robust way, in order to allow the decision making body (the local authority or possible Inspector) to take those conclusions into account," said Holgate.

"This will be an important test case on viability and confidentiality in the planning process", said Marcus Bate, another planning expert at Pinsent Masons. "Legal principles have now been relatively well established in the Freedom of Information context and in connection with judicial reviews of planning applications, but not so much for planning appeals where the public forum brings an added dimension of complexity."

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