Peyto Law Acts for the London Borough of Hackney on Regeneration Scheme at Shoreditch Park

Planning permission has today (7 December 2018) been granted by the London Borough of Hackney for a regeneration scheme at Shoreditch Park. The hybrid application sought permission for a new leisure centre, new secondary school, commercial floorspace and up to 481 residential units (including 81 affordable units) in 6 separate blocks ranging from 4 to 25 storeys in height on the site of the existing Britannia Leisure Centre, Shoreditch Park and surrounding land.

Louise Humphreys was instructed by the London Borough of Hackney in its capacity as landowner and applicant, working with the Project Team, on all aspects of the planning application and s106 obligation to deliver this ambitious regeneration project.

It is hoped that construction will start on the leisure centre and school in early 2019 and complete in 2021.

New Secondary School
New Leisure Centre
New Residential Tower

Council wins High Court battle over viability and amount of affordable housing

A Planning Court judge has ruled in favour of the London Borough of Islington in a long-running dispute over a major development which it has said will provide insufficient affordable homes.

Mr Justice Holgate has also called on professional bodies and the government to revisit guidance on how to calculate financial viability.

Developer Parkhurst Road was seeking to redevelop the site of a 0.58 hectares former Territorial Army building in Holloway, for which it paid the Ministry of Defence £13.25m in 2013. Islington refused permission for a scheme for 112 homes – 16 of them affordable – in 2014, which was upheld on appeal on grounds of damaging the area’s character and appearance. The council also argued that Parkhurst Road had overpaid for the site and as a result did not follow its policy of 50% affordable homes in new developments, though the inspector said the company had paid “not…significantly above a market norm”.

Parkhurst Road made a further application in January 2016 for 96 homes, which Islington again rejected because the developer “failed to demonstrate that the proposed development will provide the maximum reasonable amount of affordable housing” and the lack of adequate section 106 obligations. It again went unsuccessfully to appeal and then to court over the way the inspector dealt with the first issue.

In Parkhurst Road Ltd v Secretary of State for Communities And Local Government & Anor [2018] EWHC 991 (Admin) Holgate J said having examined land and sales values in the area “it is clear that the appeal proposal would not provide the maximum reasonable level of affordable housing in accordance with policies”. He went on: “It is also important to ensure that new development is sustainable, delivering the maximum reasonable level of affordable housing in all cases so as to meet the needs of all.  I note the appellant’s position that no affordable housing will come forward if the development is refused planning permission but this argument could be applied to any residential case and is not justification for allowing development that does not properly meet policy requirements and objectives.”

Holgate J said the Royal Institution of Chartered Surveyors’ Professional Guidance: Financial Viability in Planning, issued with the Ministry of Housing, Communities and Local Government and the Royal Town Planning Institute, should address ‘circularity’ by which developers sought to recover excess purchase prices by reducing affordable housing provision. He said: “It might be thought that an opportune moment has arrived for the RICS to consider revisiting the 2012 Guidance Note…to address any misunderstandings about market valuation concepts and techniques, the ‘circularity’ issue and any other problems…so as to help avoid protracted disputes of the kind we have seen in the present case and achieve more efficient decision-making.”

Court of Appeal Addresses Relationship Between Objectively Assessed Need (OAN) and the Need for Affordable Housing

The Court of Appeal has dismissed an appeal by Jelson Ltd against the judgment of Green J [2009] EWHC 2979 (Admin) in which he rejected its challenge to a decision by an Inspector on a section 78 appeal.

At issue was the Inspector’s approach to calculating the figure for the OAN in the borough, and specifically the relationship between the figure for overall housing need derived from the demographically-led household projections and the separate figure identifying the level of need for affordable housing.

Lindblom LJ (with whom Rupert Jackson LJ and Peter Jackson LJ agreed) found that the way that the Inspector had approached this task was lawful, making the following points:

Responsibility for the assessment of housing need lies with the decision-maker and is no part of the court’s role in reviewing the decision.  He emphasised the broad scope for a reasonable and lawful judgment and discouraged a legalistic approach to the review of such judgments.

The Inspector lawfully accepted the relevance of the need for affordable housing in assessing overall housing needs.  She exercised her judgment in taking it into account to reach an overall figure which, as a matter of planning judgment, sufficiently embraced the need for affordable housing as a necessary component of the full objectively assessed needs for housing in the area.

This was done by making what she judged to be an appropriate addition to the demographically-led household projections to ensure that the need for affordable housing was not omitted or understated.

The Inspector was right to recognise that simply adding the two need figures together would have been inappropriate and would have involved double-counting.  Planning judgment was required in gauging a suitable uplift to take account of the need for affordable housing, without either understating or overstating that need.

The figure identified within the SHMA to show how much open market housing would be needed to deliver the identified level of affordable housing need was rightly treated as not representing full objectively assessed need.

A copy of the earlier High Court judgment can be found here.