NHS estates company defeats Planning Court challenge to grant of permission for residential development on part of hospital site

The High Court has rejected a challenge to planning consent in a case where the interested party, Community Health Partnerships (CHP) - a body concerned with NHS estates, elected to mount its own defence when the defendant council no longer became willing to take an active part in the proceeding.

The case concerned the London Borough of Barnet’s decision to grant permission to CHP for a residential development on part of the Finchley Memorial Hospital site.

In Arthur, R (On the Application Of) v London Borough Of Barnet [2022] EWHC 2933 (Admin) Tim Smith, sitting as a deputy High Court judge, said that one of four grounds advanced by the claimant succeeded but that could be remedied by the court severing words from a  condition that had made it unlawful.

Jennie Sharokin Arthur brought the case on behalf of a number of local objectors to the loss of public open space involved.

Judge Smith noted that for reasons not explained to him Barnet ceased to defend the claim, as was its right, and so CHP gained the court’s consent to resist it.

CHP had in September 2020 submitted a planning application to demolish a building on the site and develop up to 130 homes on adjacent space. There were 677 objections from the public and only six letters of support.

Planning officer Carl Griffiths recommended to the planning committee that permission should be granted subject to completion of a s106 agreement, which included that all the affordable housing units must be let or sold to key workers in NHS salary bands 2-8.

Ms Arthur argued that the committee failed to have regard to paragraph 97 of the NPPF on the loss of public open space.

The judge said the local plan policies relevant to the loss of open space were considered in Mr Griffiths’ report, with the conclusion that there was a conflict but the need for affordable accommodation for NHS workers outweighed it.

Even though the NPPF paragraph was less restrictive than the local plan section on this, Judge Smith said: “In circumstances where the loss of open space was plainly an issue of controversy it seems to me self-evident that NPPF policies relevant to the loss of open space are ‘so obviously material’ that they must be taken into account in [Barnet’s] decision on the application.” 

But he said that under section 31(2A) of the Senior Courts Act omission of the NPPF added nothing substantive to the analysis of local plan policy and it was highly likely the outcome would have been the same.

He rejected a ground that there had been a failure to consider whether the application accorded with policies in respect of affordable housing.

It had been clear to the committee that limiting the homes to NHS key workers meant this would not be conventional affordable housing and this was “put beyond any serious doubt” in Mr Griffiths’ report .

“To complain that the officer’s report omitted a statement that the proposals were therefore not in compliance with such [affordable housing] policies is to require of an officer’s report the ‘undue rigour' deprecated by Lindblom LJ in Mansell,” the judge said.

“I see no legal error in the failure to record in terms the lack of compliance with affordable housing policy when both the fact of, and the justification for, non-compliance were obvious on the face of the officer’s report.”

Judge Smith also dismissed an argument that the committee had been misinformed as to the salary bands for eligible key workers.

There had been an error in the information presented, but the committee had not been misled by it, he said.

A fourth ground was that the permission failed to specify a period within which development must be commenced, contrary to section 92 of the 1990 Act.

Judge Smith said: “I observe in passing that the flexibility afforded to a local planning authority by section 92(4) to depart from the default timescales in section 92(2) does not itself rescue condition 3 [of the permission] because it still requires that the time limit condition express some finite periods.  The addition of sub-paragraph (ii) to condition 3 effectively means that it does not.

“The parties are, however, agreed that the court has the power to sever from the condition the parts which render it unlawful.

“Grounds 1 to 3 are dismissed and ground 4 succeeds with the result that the words which make condition 3 of the permission unlawful are to be severed from it."

Mark Smulian