'Fundamentally undemocratic': High Court Judge questions the lawfulness of Hackney Council's planning policy
PUBLISHED: 13:15 11 December 2019 | UPDATED: 13:38 11 December 2019
A High Court judge has questioned the lawfulness of Hackney Council's planning policy, calling it "absolutely extraordinary and utterly unrealistic".
Mrs Justice Lieven made the comments at a Royal Courts of Justice hearing whether to allow Holborn Studios to bring judicial review proceedings to quash the third round of planning permission granted to its landlord to develop the photographic studio in Eagle Wharf Road.
Galliard Homes' application would force Holborn Studios out of Hackney, and was approved by the council's planning committee in January - a year after a Judicial Review found the council had acted unfairly and unlawfully by granting planning permission in 2016.
There is no difference between the currently approved scheme and that of 2016 in terms of layout and design, and none of the 50 proposed luxury flats would be affordable, failing to meet the borough's target of 50pc - however this time round a payment of £757,076 would be made towards affordable housing elsewhere, and 24pc of the workspace on site would be affordable.
Mrs Justice Lieven deemed Holborn Studios has arguable grounds for quashing planning permission on three separate grounds. Firstly the council failed to make public the viability evidence on affordable housing; secondly policy support for creative industries was not taken into account; and thirdly committee members were unlawfully prohibited from considering material other than the committee report. This meant they did not see representations made on the policy support for maintaining cultural and creative facilities at the site.
The Judge, a seasoned planning QC, was particularly concerned about the lawfulness of the council's planning code for councillors. This only allows planning committee members to read the planning officer's report and attend site visits accompanied by planning officers.
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If they receive lobbying material through the post or by email, they must forward it to the committee clerks unread.
If any members of the planning sub-committee do find themselves to have been lobbied by members of the public and developers, for example by reading public representations, they must forfeit their right to take part in the planning application discussion and to vote on it.
"It gets worse as you go on," commented Mrs Justice Lieven when being told this in court. Members can't even examine what is published on the council's own website about the application, and unlike most councils, Hackney doesn't allow public comments to be posted online. "Do you say that is correct in law, that a councillor is not allowed to hear what a member of the public wants to say about a planning application?" Mrs Justice Lieven asked the council's barrister Mr Fraser-Urzuhart QC.
"I find that advice absolutely extraordinary and utterly unrealistic. I understand it may have been intended with potentially good intent, but how on earth any councillor is supposed to obey it is beyond me."
She added: "I am not even sure it is well intentioned. I mean, I am sure Hackney did not do it with ill intent but it strikes me as being fundamentally undemocratic, quite apart from anything else."
Nick Perry, chair of the Hackney Society told the Gazette he cannot see the council's current code of conduct surviving in its current form, even if the judicial review fails. "That will be good news for all and will hopefully lead to a more even handed system and one which treats members of the committee as adults, able to keep an open mind and weigh up the pros and cons, within the planning framework, on their own," he said. "Councillors benefit from a sometimes lengthy report and oral presentation from officers, which almost always advocates for planning approval. If the gist of what that report says is not accurate or misses some points made by members of the public and other interested parties - and that's not uncommon - then objectors have to squeeze those points into the scant five minutes they get to speak with no further opportunity to interject unless asked. Planning sub-commiittee has long been a poor experience for ordinary members of the public and the manner in which it is conducted often comes as a surprise to even other councillors."
A spokesperson for the council said: "We are aware of the decision to allow a judicial review and the judge's comments, and are now considering how best to respond."