Barratt Homes mixed-use development remains unaffected by Appeal.

Mon, 21 May 2012

An appeal against the refusal of an application for judicial review, of a decision of the Local Borough of Southwark, has been refused. The decision, which favours Barratt Homes (East) London Ltd, granted a mixed-use development on a site known as Downtown on the Rotherhithe Peninsular in East London. 
 
The site, previously the provider of community services, including a community hall, was the subject of a local authority prepared project brief, produced in 2002 upon consideration of redevelopment. The brief provided that the developer would be expected to carry out improvements to, or to create new infrastructure that may include financing and building “a new community hall on site if the existing hall site is to be redeveloped”. A Unitary Development Plan (UDP) was adopted in 2007, following the Inspector’s report, which stated that the uses required for the site were “Use classes including a community centre and a health centre”. 
 
On appeal it was argued, by Ian Dove QC, that the local authority failed to give effect to the above agreement that included provision for a free-standing community hall; they further failed to take account of the project brief – a material planning consideration; and to implement its own policy 7P of the UDP. Overall, there was a substantive legitimate expectation that better and larger facilities would be provided.
 
His Lord Justice Pill held, refusing the appeal, that a rigorous standard is to be applied when a substantive legitimate expectation is claimed on the basis of a representation or promise by a public authority. Only when, in the court’s view, failure to give effect to the promise would be so unfair as to amount to an abuse of power, should it override other considerations. The court found that policy 7P required a community centre with no size requirement, which was to be considered with reference to a needs assessment – this was found to be satisfied. 
 
Permission has been sought to appeal to the Supreme Court – decision is pending.

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