Bias in planning has again been highlighted, but this time in a spectacular fashion that has caused a bit of a stir not just in the world of planning, but now on a national political platform too.

The Secretary of State for Housing had granted planning permission for the Westferry Printworks development (a £1 billion 1,524 homes development in East London) on 14 January 2020. This was despite it being heavily criticised by Tower Hamlets, the Greater London Authority, which said many revisions were needed to make it compliant with the London Plan. They highlighted that there was a need for a review of the transport and infrastructure impact and affordable tenure split, and accused the developer of paying insufficient attention to any factor other than seeking to maximise the amount of market housing. As a result,  it was recommended for refusal by the Planning Inspector. The Secretary of State’s decision was issued a day before the developer’s CIL liability would have increased by up to £50 million – and this is what caused the uproar.

Jenrick agreed with the Planning Inspector’s finding that the scheme was not consistent with the “step down” approach advocated in the Council’s development plan. However, he noted, the site did lie within a designated tall buildings zone, where “significant changes in building heights are to be expected”. The towers were well-designed, he added, and formed an “attractive composition” when seen from a distance. The scheme was also criticised for offering only 21% affordable housing, considerably below the Council’s target of 35%, despite assurances at application stage that the full amount would be provided.

Jenrick agreed that, on the balance of available evidence, the scheme could provide more affordable housing than the 21% proposed. However, having referred to the original 2016 scheme that had become a realistic fallback scheme for the appellant, he noted that the new plans would provide an increase in delivered affordable housing from 140 to 282 units. There was “no evidence” that a scheme that might deliver a higher proportion of affordable housing would come forward, he added. Although he agreed that the scheme would cause “less than substantial harm” to views of the Old Royal Naval College and Tower Bridge – both Grade I listed buildings – and use of the dock adjacent to the site for sailing, he ruled that the scheme’s public benefits carried decisive weight. The appeal was therefore allowed.

Robert Jenrick has now accepted that the approved decision was unlawful and allowed the appeal to be quashed on 21 May 2020. This was after Tower Hamlets started legal action in March 2020. They alleged that the timing of the decision appeared to show bias in deciding to allow the appeal, because timing of the decision meant the developer, former Conservative Party donor and former Express Newspapers owner, Richard Desmond, avoided paying between £30 million and £50 million, as consent was given one day before the Council’s revised CIL rates came into force. Tower Hamlets asked the High Court to order the Government to disclose documents that, it argued, would show the Secretary of State was influenced by a desire to help the developer save money by avoiding the revised charges.

However, according to the Council: ‘Faced with the prospect of having to release documentation relating to the decision, the Secretary of State chose to allow the planning permission to be quashed… We may never know what emails and memos the Secretary of State received before making his decision and what influence they had, but his reluctance to disclose them speaks volumes… In siding with the developer, he went against not only the planning inspector but also the Council’s Strategic Development Committee and the residents whose lives would be directly impacted by this scheme… We will continue to press for a scheme that meets the needs of the community on the Isle of Dogs in terms of height and density, the provision of adequate affordable housing, and infrastructure delivery.’

A spokesperson for the Ministry of Housing, Communities & Local Government said: ‘While we reject the suggestion that there was any actual bias in the decision, we have agreed that the application will be redetermined.’

The GLA, which also launched legal action against the Government following Jenrick’s shock decision to grant planning consent, has now dropped its legal action and Jules Pipe, Deputy Mayor for Planning and Regeneration, said he was: ‘very pleased’ that planning consent had been quashed… We remain concerned about the scale of the scheme and its proposed development of locally-designated open space. We expect any future decision by ministers to take all our concerns into account.’

As one can imagine, the opposition political parties did not hold back either. Labour have demanded that Jenrick release the correspondence showing his contacts with Richard Desmond and have demanded the Conservatives hand back a £12,000 donation from Desmond, received two weeks after Jenrick overruled Tower Hamlet’s decision and the Planning Inspector’s decision to refuse to approve the scheme. In addition, Labour peer Lord Adonis, former chair of the National Infrastructure Commission, claims that Jenrick has broken propriety rules on the handling of planning casework by ministers. The Guidance on Planning Propriety Issues document, published by the former Department for Communities and Local Government in 2010, states that planning ministers should take “no part” in decisions in which they have an actual or perceived “private” interest. Separately, the Liberal Democrats have written to Sir Mark Sedwill, the Cabinet Secretary, to seek to have a formal inquiry into whether Jenrick potentially breached the ministerial code.

So what does all this mean?

Legally, the High Court consent order to quash Jenrick’s decision means that there will be a redetermination of the appeal proposal. Even if the appeal is allowed second time around, the higher CIL figure will be payable.

Some have now argued for a complete overhaul of the planning system and others are saying that we should reduce the politics in decision-making by removing the ability for the Secretary of State to recover appeals. I do not agree with such a view.

Yes, something went terribly wrong in the Westferry Printworks case, but we do not need a planning system overhaul or to remove political decisions. We have a legal remedy when things go wrong. We also have guidance on propriety in planning, in place for local and central government politicians. And, realistically, we will never be able to have local or central government politicians making planning decisions and trying to remove all the politics. After all, they provide the democratic legitimacy as we elected them. Yes, local or central government politicians will not always act impartially when it comes to their political beliefs, but they are required to act lawfully, and the existing principles of judicial review are adequate to ensure this.

I also share the view of the judges in the famous Alconbury case R (Alconbury Ltd) v Environment Secretary [2003] 2 AC 295, that looked into whether it was unlawful for the Secretary of State to act both as policy maker and decision taker in relation to the applications which came before him.

Lord Hoffman and then Lord Slynn said as follows: ‘In a democratic country, decisions as to what the general interests requires, are made by democratically elected bodies or persons accountable to them’…. [replacing the Secretary of State with] ‘an independent and impartial body with no central electoral accountability would not only be a recipe for chaos: it would be profoundly undemocratic.’

Politics and democracy are imperfect but they are better than the alternatives.

In the end, like any relationship, it is about trust. Trust that processes and decisions will be fair, accurate, transparent, and lawful. And trust that if things go wrong, the remedy is there to put things right.

Original Article by Martha Grekos in Cratus