High Court quashes Council's Shepherd's Bush Supplementary Planning Document

Out-Law News | 28 May 2012 | 5:20 pm | 2 min. read

A High Court Judge has quashed a London borough council's adoption of a Supplementary Planning Document. 

The ruling was in favour of an appeal brought by a group retailers who challenged the validity of the Council’s Shepherd’s Bush Market Area Planning Brief – Market and Theatre Regeneration (24-pages / 1.60MB PDF), which would have paved the way for the demolition of their existing premises.

The High Court quashed the decision by the London Borough of Hammersmith and Fulham to adopt a Supplementary Planning Document for the Shepherd's Bush Market area. 

The Judge ruled that the Council's decision to adopt the planning document was "procedurally flawed" because the Council failed to follow procedure, failed to conduct a sustainability assessment and did not consider whether an environmental assessment was required. 

The Judge analysed the group's third ground of challenge in detail. That challenge was that the Council had wrongly characterised the adopted planning brief as a Supplementary Planning Document (SPD), whereas in fact it was an Area Action Plan (AAP) and therefore a Development Plan Document (DPD).

There is no direct authority for this argument, the Judge said. "The question in the present case is whether the [adopted planning brief] relates to part of the area of the local planning authority, identifies that area as an area of significant change or special conservation and contains the authority's policies relevant to areas of significant change or special conservation."

The only issue in dispute is whether the document "identifies that area as an area of significant change", the Judge said. "In my judgment...the whole point of the document is to identify Shepherd's Bush Market area as an area of significant change...the whole thrust, tenor and organisation of the document is about the fact that the area is to be transformed and identifies it is as an area of significant change." 

He ruled that the Council "erroneously failed to characterise the document as an AAP...the adoption by the Council was procedurally flawed and, on that ground, the decision was unlawful," he said. 

The Council's decision to adopt the document was also "procedurally flawed and unlawfully made" because it had not considered whether a Strategic Environmental Assessment (SEA) was called for.

The Judge ruled that the obligation to undertake a SEA is not directly linked to whether the document was a DPD or a SPD but depended on whether the document fell within the Environmental Assessment of Plans and Programmes Regulations. 
In his ruling, the Judge found that the document "set the framework for future development consent of projects" and therefore the Council should have considered whether or not the document was likely to have significant environmental effects.

"Regardless of whether the document was a DPD or SPD, it was procedurally necessary for the defendant to have made a determination under the [Environmental Assessment] regulations and to act upon the outcome of that determination: either by carrying out or securing the carrying out of an Environmental Assessment, or not being required to do so," the Judge ruled.

The residents' claim that the SPD was not in conformity with the Unitary Development Plan was rejected by the judge, who said that "the whole thrust and purpose" of the document was to retain and improve the market in its role as part of the town centre.

"The fact that the planning brief went beyond the confines of the market, into the adjoining area...cannot render that document not "in conformity" with the existing Unitary Development Plan policy," the Judge said.
 The Judge also rejected the criticism that the consultation process was flawed and found that, despite the word "demolition" not being used, a letter to the residents made it "clear to anyone reading the letter what the import of what was being considered might be for their businesses". 

The Judge said that the Council's "inadvertent failing" in omitting the claimant residents from a local survey "had diminished to the point of insignificance".  

The resident's claim that the Council failed to make an adequate Equality Impact Assessment was rejected by the Judge, who said that there was nothing in that argument.