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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Horada & Ors v Secretary of State for Communities and Local Government & Ors  EWCA Civ 169 (18 March 2016)
Cite as:  EWCA Civ 169,  PTSR 1271,  WLR(D) 148
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ON APPEAL FROM QBD, Planning Court
Mr Justice Dove
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE LEWISON
| JAMES JOSEPH HORADA (ON BEHALF OF THE SHEPHERD'S BUSH MARKET TENANTS' ASSOCIATION) & OTHERS
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT AND OTHERS
Mr Charles Banner (instructed by the Government Legal Department) for the 1st Defendant; Rupert Warren QC (instructed by Gowling Wlg (UK) Llp) for the interested party
Hearing date: 3 March 2016
Crown Copyright ©
Lord Justice Lewison:
"Shepherds Bush Market and adjacent land
Regeneration of the market and other adjacent land to create a vibrant mixed use town centre development of small shops, market stalls, leisure uses, residential and possibly offices; in accordance with the Shepherds Bush Market Supplementary Planning Document. Development should encourage small independent retailers and accommodate existing market traders."
"… crucially maintains existing traders and provides them with the security to ensure that the market can continue to operate without interruption and serve existing customers and communities."
"… phased redevelopment of Shepherd's Bush Market and adjoining land comprising the demolition of existing buildings, the refurbishment and enhancement of the market, and the construction of new buildings ranging from 2–9 storeys in height (plus basement) to provide up to 212 residential units (up to 27,977sqm); and up to 14,052sq.m of non-residential floorspace comprising up to 6,000sqm of market/retail floorspace (Class A1), up to 4,000sqm floorspace of Food and Drink Uses (Classes A3/A5), and up to 4,052sq.m of associated servicing facilities and ancillary uses; including provision of landscaping and amenity/public space; access and parking (up to 85 vehicular spaces), up to 457 cycle parking spaces and associated works."
"6) Except in relation to the Drainage Works, no development shall commence until details of the Market Traders stalls and canopy design has been submitted to and approved in writing by the Local Planning Authority. The approved stalls and canopies shall be implemented before the stalls are occupied and shall be retained thereafter for the lifetime of the development.
7) No demolition or construction works shall commence until details of a market management plan have been submitted to and approved in writing by the Local Planning Authority. The market management plan will include, but is not limited to: timeline of the Drainage Works, operating hours, security, service charge, rent collection, tenant support, marketing and promotions. The contents of the market management plan are to be agreed with the Local Planning Authority prior to the lodgement of the application to discharge this condition. The development shall be carried [sic] and operated out in accordance with the approved details."
"7.1.1. the diverse nature and offerings within the market, including the uses and mix of business, to include specialisms in food, fabrics, furnishings, fashion and household goods within the market and that it remains a location for local and/or independent businesses and the goods on offer are appropriate to the market customer;
7.1.2. the regeneration of the market and improve its economic sustainability;
7.1.3. the nature and unique character of the market and that the market remains a location for local and or independent businesses by way of:
220.127.116.11. the retention of existing traders;
18.104.22.168. the setting [of] criteria for attracting and selecting new local independent traders; and
22.214.171.124. the setting of rent and service charges levels on lease renewals and new leases will be affordable for small local businesses (entry-level)…"
"7.3. The Owner shall provide no less than twenty-five (25) stalls within Shepherds Bush Market to be let or licensed on terms and conditions conducive to attracting local small-to-medium-enterprises and entrepreneurs, including those from ethnic communities seeking low-cost entry to business start-ups, having regard to the Shepherds Bush Market Lettings Policy
7.4. The Shepherds Bush Market Lettings Policy shall provide for a proportion of available units to be let on shorter term/periodic tenancies or licenses and at rents or fees designed to provide an opportunity for local small-to-medium-enterprises and entrepreneurs including those from ethnic communities seeking low-cost entry to business start-up."
"But a local authority must not exercise the power under paragraph (a) of subsection (1) unless they think that the development, re-development or improvement is likely to contribute to the achievement of any one or more of the following objects—
(a) the promotion or improvement of the economic well-being of their area;
(b) the promotion or improvement of the social well-being of their area;
(c) the promotion or improvement of the environmental well-being of their area."
"The CPO is jointly promoted by the Council and the developer. The Council has made the Order to regenerate the area of Shepherds Bush Market and to secure its future in the long-term. The scheme is intended to facilitate regeneration of the market through a mixed-use development designed to "improve and expand the [Market's] trading space, increase the variety within the market area, and establish a long-term management plan to promote and sustain the market." The intention is to re-establish the market as a popular, sustainable and attractive London street market and a successful component of the Shepherds Bush Town Centre, which is coming under increasing competition from other developments within the Borough."
i) Does the purpose for which the land is to be acquired fit in with the adopted planning framework for the area? She concluded at [12.2.13] that it did.
ii) Would it contribute to the economic, social or environmental well-being of the area? She concluded at [12.6.10] that it had the potential to do so; but said at [12.6.11] that those benefits would only materialise if the essential ingredients and uniqueness of the Market were retained. She concluded at [12.6.36] that the scheme did not provide adequate mechanisms for retaining the number, mix and diversity of traders, with the consequence that the scheme would not fully achieve the economic, social or environmental well-being sought.
iii) Could the purpose be achieved by other means? She concluded at [12.11.1] that the Orion scheme was the only deliverable and viable option.
"4.3.2 The character of the market is one of small independent traders providing a diverse mix of products in food, fashion and household, mainly to the local population, combined with a specialism in textiles and haberdashery which attracts customers from a much wider area. It is ethnically diverse in its nature and offers the opportunity for independent businesses to trade in an affordable environment not found elsewhere in the area.
4.3.9 The market also offers opportunities not available elsewhere for the local population (particularly among the ethnic communities) to establish small and start-up businesses in affordable premises, a role that will be enhanced by the regeneration scheme.
4.7.1 The Council has always maintained that protection and continued operation of existing traders is its central objective.
4.7.5 It was crucial for the Council to be assured that there were sufficient commitments from the developer to ensure retention of existing traders in the market and Goldhawk Road."
"7.1.5 … The owners have already begun to approach leaseholders asking for an exorbitant rent increase of £30 per sqft per annum. This is a real threat to tenants' livelihooods, as many businesses presently pay only £10 per sqft.
7.1.7 No funds are to be directed towards repairing or refurbishing the interior of the arches. The arches are iconic to Shepherd's Bush market and its key original feature…
7.1.8 SBMTA and stall holders have repeatedly requested design proposals for the new stalls. But none has been forthcoming. Tenants are concerned that replacement stalls will not meet their needs.
7.1.13 … The CPO will deprive members of any further trading opportunities, as members are only able to trade where rents are affordable. There is nowhere else for traders to go should the rents become affordable beyond reach."
"12.6.10. Overall, the Orion redevelopment proposal has the potential to bring about significant improvements in the physical environment of the area, boost the area's economy and generate the social benefits associated with an improved market. The CPO would equally contribute to the area's wellbeing as an essential tool in facilitating delivery of those benefits.
12.6.11. The benefits described would only materialise if the essential ingredients and uniqueness of the market and the Goldhawk Road shops are retained. In other words, if the development provides the requisite financial as well as physical conditions for an independent, small-scale, diverse and ethnic mix of traders and shopkeepers to continue trading at the market and on the Goldhawk Road frontage. Those objectives rely on safeguards to ensure that existing businesses or new operators with similarly qualitative and diverse offerings are protected as far as possible during and after the redevelopment process. The effectiveness of Schedules 15 and 16 of the s106 Agreement is a vital element of the consented scheme in this regard and considered below."
"The stallholders therefore remain ignorant of the size, form, or positioning of replacement stalls. Equally, the sizes of retail units are unknown… Stall and shop holders will be offered new premises but not necessarily on a "like for like" basis."
"Without knowledge of the replacement provision intended, the traders cannot fully comprehend their future, nor plan for it. That level of uncertainty is unacceptable and provides a poor basis for assessing the extent to which existing traders could or would relocate to the refurbished market. The s 106 provides no guarantees in that regard."
"Yet neither the Shepherds Bush Market Works (identified in the s 106) nor cost breakdown provided in evidence clarifies with any certainty that the arch units would be upgraded as part of the market refurbishment."
"The impasse with traders not wishing to engage due to lack of information and the developers unable to move forward without full knowledge of individual requirements is inhibiting progress. However binding/enforceable measures are needed to be assured that the replacement premises (stalls and shop units) would be suitable and affordable enough for traders to return to the site in sufficient numbers and maintain the market's character. Moreover, businesses occupying the arch units must also be provided with the security that their premises would be upgraded to address the defects identified in the Parsons Brinkerhoff report and which fall within the owner's responsibility. In the absence of clear assurances along those lines, the social and environmental well-being sought is not likely to be achieved should the order be confirmed."
"12.6.36 The Orion scheme has been found by the Council (and the Mayor) to be policy compliant, as it would meet the London Plan and Core Strategy regenerative objectives. In doing so it has the potential to bring about the benefits described. Close examination of the evidence, however, has led me to conclude that the current Orion proposal lacks the mechanisms to be assured of retaining the number, mix and diversity of traders in the way explained above. They are vital to the distinctiveness of the market and the Goldhawk Road shops. Therefore, insofar as it would facilitate delivery of the redevelopment scheme promoted, the CPO would not fully achieve the social, economical and environmental well-being sought."
"12.10.6 All of that said, without full knowledge of the replacement accommodation in the new development, it is not possible to establish whether new trading conditions would be sufficiently affordable or suited to the needs of traders currently operating in the market. Lack of certainty regarding necessary upgrades to the arched premises also places a question mark over the long term trading and survival position of businesses occupying the arches. Equally, in the absence of measures to secure the affordability of replacement shop units, the commercial future of the Goldhawk Road shopkeepers cannot be assured. Without such certainties in place, there is some doubt in my mind whether the scheme granted permission (or any subsequent redevelopment proposal) could deliver on its promises of retaining if not all then the majority of traders and shopkeepers. They are vital to the market and to the vibrancy of the area.
12.10.7 The order is not tied to any particular scheme but its purposes are not deliverable while the uncertainties highlighted prevail. The compelling reasons for it therefore fall away."
"12.11.4 As explained earlier, the guarantees and safeguards are not sufficiently robust to be assured that genuine opportunities exist for current traders or shopkeepers (or similarly diverse businesses) to continue trading in the market and Goldhawk Road. Without such assurances, there is a real risk that the market and replacement Goldhawk Road shops would not provide the ethnic diversity, independent or small scale retailing environment central to the appeal of this part of the town centre. While such uncertainties exist, the personal losses and widespread interference of private interests arising from confirmation of the order cannot be justified."
"14 The Secretary of State has considered the Inspector's conclusions in relation to the extent the proposed purpose of The Order will contribute to the achievement of the economic, social or environmental well-being of the area at IR 12.6 at (IR 12.6.10). The Inspector concludes that overall the Orion proposal has the potential to bring about significant improvements in the physical environment of the area, boost the area's economy and generate the social benefits associated with an improved Market, with the order will equally contribute to the area's well-being as an essential tool in facilitating delivery of those benefits. The Inspector concludes (IR 12.6.11) that these benefits would only materialise if the essential ingredients and uniqueness of the Market and the Goldhawk Road shops are retained and the development provides the requisite financial as well as physical conditions for an independent small scale, diverse, and ethnic mix of traders and shopkeepers to continue trading. The Inspector notes that these objectives rely on safeguards to ensure that existing businesses or new operators, with similarly qualitative and diverse offerings are protected as far as possible during and after the redevelopment process and that the effectiveness of Schedules 15 and 16 of the section 106 agreement are a vital element of the order scheme in this regard. The Inspector concludes at IR 12.6.36 that the order scheme would not fully achieve the social, economic or environmental well-being sought as it lacks the mechanisms to be assured of retaining the number mix and diversity of traders.
15 The Secretary of State has carefully considered the Inspector's conclusions on the order schemes contributions to well-being. The Secretary of State considers that sufficient safeguards are in place to ensure that regeneration of the market to create a vibrant mixed use town centre development will be achieved and that existing Market traders and shopkeepers or new operators with similarly qualitative and diverse offerings will be protected. The Secretary of State is satisfied that the Council will ensure that the policy requirements of WCOA3 will be met through a series of planning conditions that will be reviewed and approved by the Council and through the safeguards provided within the section 106 agreement which are enforceable by the Council. Therefore, the Secretary of State disagrees with the Inspector's conclusions and finds that the proposal will significantly contribute to the economic social and environmental well-being of the area.
21 The order should be confirmed only if there is a compelling case in the public interest to justify sufficiently the interference with the human rights of those with an interest in the land affected. The Secretary of State considers that the proposed purpose of the order, including the redevelopment and regeneration of the area, will significantly contribute to the achievement of the promotion or improvement of the economic, social and environmental wellbeing of the area. The Secretary of State considers that the purpose for which the land is being acquired fits in with the adopted planning framework for the area. The Secretary of State is satisfied that sufficient safeguards are in place to protect traders and shopkeepers through a series of planning conditions requiring the review and approval of the Council and through the section 106 agreement which can be enforced by the Council to ensure that a development in line with the relevant planning framework can be delivered.
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
"To my mind the inspector's reasoning was both clear and ample. Here was a woman of 62 in serious ill-health with a rooted fear of being put into permanent housing, with no alternative site to go to, whose displacement would imperil her continuing medical treatment and probably worsen her condition. All of this was fully explained in the decision letter (and, of course, described more fully still in the reports produced in evidence at the public inquiry). Should she be dispossessed from the site onto the roadside or should she be granted a limited personal planning permission? The inspector thought the latter, taking the view that Mrs Porter's "very special circumstances" "clearly outweighed" the environmental harm involved. Not everyone would have reached the same decision but there is no mystery as to what moved the inspector."
"Fourthly, the adequacy of reasons for the grant of permission will depend on the circumstances of each case. The officer's report to committee will be a relevant consideration. If the officer's report recommended refusal and the members decided to grant permission, a fuller summary of reasons would be appropriate than would be the case where members had simply followed the officer's recommendation. In the latter case, a short summary may well be appropriate."
"When considering the adequacy of summary reasons for a grant of planning permission, it is necessary to have regard to the surrounding circumstances, precisely because the reasons are an attempt to summarise the outcome of what has been a more extensive decision making process. For example, a fuller summary of the reasons for granting planning permission may well be necessary where the members have granted planning permission contrary to an officer's recommendation. In those circumstances, a member of the public with an interest in challenging the lawfulness of planning permission will not necessarily be able to ascertain from the officer's report whether, in granting planning permission, the members correctly interpreted the local policies and took all relevant matters into account and disregarded irrelevant matters."
"The material part of the decision letter was composed mainly, if not entirely, of bald assertions that the Secretary of State was not satisfied upon fact (a) or fact (b) or fact (c), without giving any reason upon which the lack of satisfaction was based. Such decision letters are unfair to the parties. The parties are unable to challenge the reasoning or the reasons, if any, which lay behind the decision. They are particularly reprehensible where the Secretary of State is differing from the commissioners and from the inspector who heard the appeal on matters of fact, as was the case here."
i) Did the Secretary of State correctly identify the principal important controversial issues; and if so
ii) Did he give adequate reasons for disagreeing with the inspector?
i) Policy WCOA3 included the element of well-being necessary to satisfy at least one of the statutory objectives in section 226 (1A).
ii) The inspector had set the bar too high in requiring "assurance" or "certainty." Sufficient likelihood was the right test.
iii) The inspector had misunderstood the extent to which policy WCOA3 met the concerns that she expressed in the light of the fact that any application for consent for reserved matters would have to be decided by the Council in accordance with the development plan. That in turn meant that in considering, for example, details of the stalls under condition 7 of the planning permission, the Council would be bound to take into account the size of the proposed units and the consequent effect on rental levels.
iv) The lettings policy envisaged by paragraph 7 of Schedule 15 to the section 106 agreement had to be designed to promote both the unique character of the market and the retention of existing traders. In addition 25 units had to be offered at affordable rents, and those features of the letting policy amounted to a sufficient degree of rent control. The Council would be able to enforce compliance with the lettings policy by injunction.
v) The inspector was wrong to have thought that it was necessary for forward planning by traders for the details of replacement units to be "on the table" at the time of the inquiry. It was sufficient that the details would be known once approval under condition 7 of the planning permission had been given.
"The Secretary of State considers that sufficient safeguards are in place to ensure that regeneration of the market to create a vibrant mixed use town centre development will be achieved and that existing Market traders and shopkeepers or new operators with similarly qualitative and diverse offerings will be protected. The Secretary of State is satisfied that the Council will ensure that the policy requirements of WCOA3 will be met through a series of planning conditions that will be reviewed and approved by the Council and through the safeguards provided within the section 106 agreement which are enforceable by the Council."
Lord Justice Longmore:
Lord Thomas of Cwmgiedd, CJ: