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High Court Approves Market Re-Development

In a telling example of the devastating impact major planning decisions can have on private property rights, a group of shop-owners – outraged at the prospect of their stores being demolished to make way for a major redevelopment of the Shepherd’s Bush Market area in West London –  have suffered defeat in a High Court challenge to the plans.

Hammersmith and Fulham Council triggered a storm of protest amongst Goldhawk Road retailers when it granted outline planning permission for the demolition of numerous buildings in the area to make way for refurbishment of the market as well as more than 200 new homes and over 14,000 square metres of commercial floor space. Twelve shop-owners, whose premises adjoin the market, mounted a wide-ranging attack on the council’s decision but had all their complaints dismissed.

Affected retailers had earlier succeeded in a legal challenge to a supplementary planning document (SPD) in which the council had set out its ‘objectives’ and ‘vision’ for the area’s regeneration. A judge ruled that, in adopting that document, the council had failed to follow correct procedures and that the proposed changes in the area were so fundamental that it should have produced a formal area action plan.

However, that victory proved of no help to the shop-owners in their challenge to the outline planning permission, which was granted subject to more than 70 conditions. The Court found that, in reaching its decision, the council had correctly treated the SPD as a ‘material consideration’, although it could give the document ‘no weight’ as its validity was being challenged in legal proceedings.  The council’s view that the proposals accorded with the local development plan was also unimpeachable.

The council’s planning committee had resolved to grant the consent at a time when the National Planning Policy Framework (NPPF) was in its draft form. By the time the formal decision was reached, however, the NPPF had been finalised and the shop-owners argued that the significant differences between the two documents should have prompted further consideration of the scheme.

However, in dismissing those arguments, the Court found that the differences between the draft and final NPPF were not material and would have made no difference to the council’s ultimate decision to grant the permission.

Complaints that the council had failed to take adequate account of the ‘indirect, cumulative and secondary effects’ of the development were also rejected. The Court found that there had been no obligation on the council to consider the scheme in the context of other major proposals potentially affecting the area, including the Thames Tunnel, Crossrail and the proposed redevelopment of Earl’s Court.