Materially different developments and enforcement
Craig Howell Williams KC and Mark O’Brien O’Reilly examine the Mast Quay Phase II appeal decision, where an enforcement notice was upheld, and planning permission was granted subject to the making of numerous significant changes to the existing development and the payment of large financial contributions.
The Inspector, Mr John Braithwaite, issued his written Appeal Decision in the Mast Quay Phase II Enforcement Notice appeal on 9 January 2025.
The development, which includes 204 residential units, and consists of one 15 storey tower block and a second tower block of 23 storeys with linked tiered 11, 9 and 6 storeys along with associated development, is located in a prominent position on Woolwich Church Street within the Royal Borough of Greenwich and adjacent to the River Thames. This case is noteworthy in the context of enforcement appeals, therefore, for the unprecedented size of the development. The Inspector himself noted the “exceptional circumstances of the case”.
The Royal Borough of Greenwich had issued an Enforcement Notice on 25 September 2023. The Council, during the course of its investigations, had to consider the relevant breach of planning control for the purposes of enforcement action, taking account of relevant case law such as Commercial Land Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1264 (Admin). The Council concluded, following an extensive investigation, that the development, when considered objectively and as a whole, was so materially different from the development which had been authorised by a previous grant of planning permission in March 2012, and a subsequent section 73 planning permission granted in April 2015, that it did not constitute the lawful implementation of either of those permissions. The Council decided, therefore, that the whole of the development was unlawful as it was constructed without planning permission and issued enforcement proceedings. The Council also had to consider what remedy the Enforcement Notice ought to require and in this respect determined that demolition was required to remedy the breach as the development was, in its entirety, unlawful. That decision understandably attracted news headlines from, inter alia, the BBC, ITV, Bloomberg, The Guardian and the Times. The Enforcement Notice required the demolition of the development and the restoration of the land within 12 months. By the time of the inquiry, it was common ground between the Council and the Appellant, Fincraft Limited (a subsidiary of the Comer Homes Group), that neither permission had been lawfully implemented, and that the development did not, therefore, have planning permission.
The appeal was initially made on grounds (a), (b), (c), (f) and (g). The effect of the ground (a) appeal was that the Inspector had to determine, therefore, a deemed application for planning permission. It was this ground that the appeal became focussed on. The public inquiry opened on 23 July 2024 and closed on 5 September 2024. During that time, the Inspector heard evidence from 25 expert witnesses on the following issues: design, heritage, living conditions (overheating and energy), amenity space, facilities for disabled persons, public realm (landscaping, car parking, ecology and biodiversity), access and servicing arrangements, commercial floorspace need, affordable housing and viability.
Ground (a) appeal
As part of its ground (a) appeal, the Appellant proposed significant changes to the development, which they called “Optional Enhancements” and “Outstanding Proposals”. Those included, inter alia, fire safety related improvement works, a modified roof treatment, the introduction of dark grey panelling below window openings, changes to the public realm and landscaping treatment, the removal of all standard parking bays, the provision of children’s play space and the provision of enlarged green roofs. The fire safety related improvement works included the replacement of the existing glazed balcony treatment with fire resistant glass panels, the provision of an external fire lift and automatic smoke vent and new emergency exit routes.
The Inspector identified ten main issues in the ground (a) appeal. Those main issues included the effect on the character and appearance of the area, the impact on the setting and significance of heritage assets, living conditions and whether or not the development included sufficient affordable housing. He identified, at the start of setting out his reasons for allowing the ground (a) appeal, that it was an important planning principle that if a concern could be overcome by a condition, planning permission should not be withheld. On this basis he considered each of the main issues in turn, concluding that planning permission could be granted if it were made subject to 50 conditions to ensure the modification of the unlawful development and provide necessary mitigation. Of particular note is the fact that the scheme of the decision is that if any of those conditions are not complied with, the sanction will be that the Appellant will have to comply with the requirements of the upheld Enforcement Notice and remove the development.
In terms of design and local character, the Inspector decided to require the addition of a dark coloured projecting edge to the roofs of both blocks (these put forward as an Optional Enhancement by the Appellant). He also required the addition of dark grey panelling below windows and grey and white banding on one of the blocks (also put forward as an Optional Enhancement). The Inspector considered that the orange cladding on the building was a “distinctive feature” which was “visually intrusive and uncomplimentary”. He also noted that the orange cladding “adversely affects appreciation of the heritage assets”. He therefore imposed a condition requiring the removal of the cladding and its replacement with “an appropriate and complimentary colour that shall be agreed by” the Council. The changes, taken as a whole, he concluded would result in a development of “sufficiently high quality” to meet the policies at national and local level that the Council relied on.
For similar reasons, the Inspector concluded that the alterations would also mean that there would be no adverse effect on the setting and significance of the heritage assets (which included a Grade II* church and a Grade II* Cinema as well as a conservation area), and that the requirements of statute and policy relating to heritage issues would be met.
In relation to living conditions, the Inspector found that a number of flats had “obviously substandard levels” of daylight and concluded that “Some residents….have less than acceptable living conditions” which resulted in conflict with the London Plan (including in respect of external private amenity space). The Inspector also found that 43 of the 204 flats fell below the space standards contained in the London Plan 2021 and found a “technical breach of…space standards”. He also noted, as the Appellant had accepted, that there were issues with overheating in bedrooms. To address these, the Inspector imposed a condition for the approval and implementation of a scheme for cooling systems to be installed and operated.
Conditions were also imposed to ensure compliance with requirements M4(2) and M4(3) of the Building Regulations to address some of the concerns as to wheelchair accessibility. Another condition also requires approval and implementation of disabled access and parking arrangements.
A further condition was imposed requiring the approval and implementation of a comprehensive landscaping scheme as well an ecological management plan. This would result, the Inspector said, in positive changes to the design of the intertidal zone, the landscaping and the public realm. Other conditions would secure a biodiversity net gain and the achievement of the required urban greening factor. Another condition requires the implementation of a cycle parking scheme.
The issue of affordable housing and the correct approach to viability in an enforcement appeal was hotly debated. The development, as constructed, provided 13.7% affordable housing whereas up to date policy required 35%. The Appellant argued that no more could be viably provided. A key difference between the parties was whether the viability appraisal should take into account the build costs of the development and developer profit; if those were to be excluded, it was common ground that 35% affordable housing could be provided. The Inspector, in line with an earlier appeal decision (of his own), favoured the Council’s position. He said that “the statutory scheme does not allow ‘developers to build at risk and seek consent later’ [as contended by the Appellant] for this would be encouraging and condoning intentional unauthorised development” and that “The bare facts of this case are that the Appellant has built a development that is not in accordance with the 2012 planning permission and that is unlawful unless and until planning permission is granted and has been fully implemented”. As the Appellant had risked the build costs in advance of obtaining planning permission, it is “fair and reasonable to discount build costs, and developers profit, in assessing viability” as “To do otherwise would be contrary to Government policy”. This was because “the Appellant has brought into use, at their own risk, a residential development…that does not comply with development plan policy and that is unlawful and unacceptable in planning terms” such that “It is therefore fair and reasonable, as a matter of planning judgement and in recognition of the Ministerial Statement, to discount build costs to date”. The decision has, therefore, helpfully clarified the position to be adopted in enforcement cases where there is an issue as to the correct approach to viability. The Appellant here has been required, therefore, to make a financial payment of £4.4m in lieu of on-site provision.
The Inspector imposed a condition requiring a resident’s gym to be marketed to commercial operators for two years. This, in addition to the commercial units already contained within the development, allowed the Inspector to conclude that the development included sufficient commercial floorspace.
A further issue was the question of Intentional Unauthorised Development and the Written Ministerial Statement 2015. The Inspector accepted that the Written Ministerial Statement was relevant and said that it was “clear that harm may be caused where the development of land has been undertaken in advance of obtaining planning permission”. The Inspector, however, in light of the fact that there had been numerous discharge of condition applications related to conditions imposed on the historic grants of planning permission, concluded that “In these circumstances it is reasonable to conclude that the Appellant company was not undertaking IUD”.
In relation to housing need, the Inspector acknowledged that the Council could not demonstrate a five year housing land supply, with a supply of only 2.46 years, and that paragraph 11(d) of the NPPF was engaged. He concluded that, overall, the development conflicted with the development plan but concluded that material considerations indicated that the appeal should be determined other than in accordance with the development plan. The public benefits of the development included the provision of 204 residential units and the affordable housing contribution of £4.4m. The Appellant will also be required to make a CIL payment of £2.34m and pay a £318,970 carbon offsetting payment as well the other contributions secured by the section 106 agreement. The benefits were, the Inspector concluded, such so as to outweigh the adverse impacts of granting planning permission (applying the tilted balance in paragraph 11(d)(ii) of the NPPF).
Other grounds
By the conclusion of the inquiry, there was common ground between the Council and the Appellant that the Enforcement Notice should include eleven material deviations from the approved plans approved in 2012 and 2015. On that basis, there was no need to consider the grounds (b) and (c) appeals and the Inspector varied the Enforcement Notice to substitute the extant list with that list of eleven material deviations.
The ground (f) appeal was withdrawn by the Appellant on the last sitting day of the inquiry following submissions by the Council throughout the appeal process that the ground (f) appeal was, in light of the statutory wording, misconceived and that the human rights of the tenants was not a freestanding issue, rather one relevant to the ground (a) appeal (where impact on tenants would be taken into account as would the proposed modifications).
As to ground (g), the Inspector held in light of the fact that demolition would be “a complex and lengthy process”, that 36 months would be an appropriate time period for compliance with the upheld Enforcement Notice if any of the conditions were not complied with. He acknowledged that this was "an exceptional compliance period” but said that it “reflects the exceptional circumstances of this case”.
Costs
The Council made a partial application for costs. The Inspector, in his Costs Decision, found that it was unreasonable for the Appellant to have pursued its ground (f) appeal only to withdraw it on the last sitting day and found that the Council had incurred wasted expense in the appeal process. The Inspector also found that it was unreasonable for the Appellant to have not prepared and submitted an accurate set of as-built drawings at the earliest opportunity and concluded that the Council had again incurred wasted expense in “checking and re-checking submitted as-built drawings before and during the Inquiry”. He accepted that it was “a highly unusual case” which required an “highly unusually degree of detail” but said that the Council had raised the need for a set of as-built drawings as early as March 2023, yet the final set of as-built drawings was not submitted until after the inquiry had already commenced, i.e. on 9 August 2024. The Inspector concluded that this was unreasonable and had imposed an unacceptable burden on the Council.
Conclusion
Although planning permission has been granted, the clear conclusion of the Inspector was that the development, as built, was “unlawful and unacceptable in planning terms”. He decided to grant planning permission only on the basis of significant modifications to the building to be secured by revised plans and numerous conditions and because of the benefits that could be offered by the appeal scheme in terms of housing supply and affordable housing as well as the considerable financial contributions that would be secured by a s106 agreement; this (tilted) planning balance allowed him to conclude that material considerations indicated that the appeal should be determined otherwise than in accordance with the development plan.
The Inspector noted that it is only if the Appellant implements the planning permission in accordance with all of the conditions and the section 106 agreement that the development will become “sustainable and lawful”. If the Appellant does not do so, “then the conditions will require them to remediate the land in accordance with the requirements of the enforcement notice, which has been upheld so that this ultimate sanction remains in place”.
The case is, therefore, an interesting one for many reasons. It raised complex legal issues, such as what is the breach of planning control where there are deviations from a previous grant of planning permission and what the correct remedy is where a development is in its entirety unlawful. It can also be seen that the Appeal Decision addressed the question as to what the correct approach is to viability assessment in an enforcement case – to take into account retrospective build costs or not. The decision will also be of interest to those involved tall or large building projects in London and the application of national and London Plan policies relating to design. The decision is also noteworthy for the use of conditions to secure marked improvements to the design and appearance of an unauthorised scheme and, in particular, for the fact that the Enforcement Notice was upheld so as to provide a sanction if those conditions are not complied with. The latter point raised interesting questions as to the interplay between a successful ground (a) appeal and an extant Enforcement Notice. The Inspector’s approach will no doubt inform future enforcement cases. The Appeal Decision is therefore commended reading for all those involved in enforcement cases, especially those involved with tall or large buildings in London.
Craig Howell Williams KC and Mark O’Brien O’Reilly are barristers at Francis Taylor Building. Instructed by Freeths LLP, they advised and acted for the Royal Borough of Greenwich throughout the enforcement investigation and at the public inquiry.
Francis Taylor Building is holding a briefing on the appeal decision in Mast Quay Phase II on 24 April 2025.
