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Council defeats Court of Appeal challenge over Elephant and Castle redevelopment

A local activist group has lost a challenge at the Court of Appeal to the London Borough of Southwark’s grant of planning permission for a major redevelopment of the Elephant and Castle area.

Sir Keith Lindblom, Senior President of Tribunals, with whom Lord Justice Baker and Lord Justice Lewis agreed, ruled against local resident Jerry Flynn, who represented the 35% Campaign, and in favour of the council and development partner Elephant and Castle Properties.

The case concerned Southwark’s planning committee's grant of planning permission for a major mixed-use development, subject to an appropriate legal agreement under section 106 of the Town and Country Planning Act 1990, which would, among other things, secure affordable housing.

Mr Flynn’s group is committed to ensure that at least 35% of the 979 homes to be built are for affordable housing.

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He argued that at an earlier High Court hearing Dove J erred in his approach to the vires of the section 106 agreement.

His second argument concerned whether Dove J erred in his approach to the lawfulness of the arrangements for a ‘build to sell’ fall-back position on part of the site – by holding that the section 106 agreement lawfully gave effect to the "viability review mechanism" and in failing to recognise material differences between ‘social rented’ and ‘social rent equivalent’.

Mr Flynn also said Dove J had been wrong to conclude that the committee was not materially misled by what it was told about the availability of grant funding from the Greater London Authority (GLA).

Giving judgment in Flynn, R (On the Application Of) v The London Borough of Southwark Council & Anor [2021] EWCA Civ 827, Sir Keith said the true sense of the committee's resolution, read together with the director of planning's report, and the scope of the delegation to officers to negotiate and conclude the terms of ‘an appropriate legal agreement’ meant Dove J’s conclusions on vires were correct.

He said: “The instrument of delegation was the committee's resolution, not the officer's report or specific passages in it. The section 106 agreement was properly authorised by the committee's resolution, and not ultra vires. It was not irrational or otherwise unlawful for the council to enter into an agreement in that form, or to grant planning permission having done so.”

Sir Keith said there was nothing irrational in the officers' professional judgment that the arrangements in the section 106 agreement would ensure the delivery of the proposed affordable housing and the submission that the agreement, or the planning permission, was ultra vires was mistaken.

He also dismissed objections to a ‘build to sell' mechanism used as fall back were it not possible to build homes for rent on parts of the site.

“This was described by the director of planning…as a ‘possible if unlikely scenario’. But it required a mechanism for review, to ensure that the provision of affordable housing would still be acceptable in the light of relevant policy.”

Sir Keith also found that Dove J had been right to conclude that the committee was not materially misled about GLA grant funding.

He said the committee was told that Elephant and Castle Properties had secured an agreement in principle with the GLA for funding for social housing and this was not materially misleading.

Southwark had conceded that a reference to “[the] proposal reflects GLA grant funding, recently confirmed, which has facilitated an increase in the number of social rented units from 74 to 116” was incorrect, because the GLA had not confirmed grant funding.

Sir Keith said: “Had this advice been left as it stood, it would have been misleading. Whether it would have been materially misleading is another question.

“But it was not left as it stood. If one takes the officer's advice on this matter as a whole, a different picture emerges” as this was corrected.

He added: “The relevant law is well established…planning officers' reports must be read fairly, and as a whole, to establish whether the officer has materially misled the members.

“Applying that approach in this case, the court should in my view conclude that, when the planning committee resolved on 3 July 2018 to approve the proposed development, it had not been 'materially misled’ by what the officers had said to it about the GLA's position on grant funding. There was, in this sense, no ‘significant error of fact’.”

Mark Smulian

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