West Kensington Estate Tenants and Residents Association & Anor v London Borough of Hammersmith and Fulham & Ors

A supplementary planning document remains subordinate guidance where the development plan has already identified the relevant area of significant change and established the strategic allocation and policies. It need not be prepared as an area action plan merely because it provides detailed guidance for comprehensive redevelopment.

Affordable-housing targets are strategic aspirations subject to viability. A supplementary planning document may take account of economic evidence, provided it does not alter the development plan or displace the requirement for site-specific viability assessments. Guidance may not permit a net loss of social rented housing where the development plan prohibits such loss.

Strategic environmental assessment may be required for a supplementary planning document that is required by administrative provisions and influences future development consent. Assessment may be conducted across a hierarchy of plans without impermissible duplication. A post-adoption failure to publish the required compliance statement may be remedied by mandatory order without quashing the document where no substantial prejudice is shown.

The claimants, residents’ associations representing tenants of the West Kensington and Gibbs Green estates, sought judicial review of a joint supplementary planning document adopted by the London Borough of Hammersmith and Fulham and the Royal Borough of Kensington and Chelsea for the Earl’s Court and West Kensington Opportunity Area.

Four grounds were pursued. They alleged that the document was in substance an area action plan requiring the statutory development-plan procedure; that the authorities unlawfully relied on the Estates Regeneration Economic Appraisal in formulating affordable-housing guidance; that the guidance conflicted with development-plan policy protecting social rented housing; and that the document required, but had not received, lawful strategic environmental assessment.

1. Ground 1 dismissed. Under regulation 6(2)(a) of the Town and Country Planning (Local Development) (England) Regulations 2004, an area action plan must itself identify the area as one of significant change. That means establishing the identity and principle of significant change, not merely confirming or supplementing an identification already made in the development plan. The London Plan and the two core strategies had already identified and allocated the Opportunity Area, including the housing estates, for comprehensive regeneration. The SPD therefore supplied permissible supplementary guidance and did not usurp the development plan.
2. Ground 2 dismissed. The affordable-housing policies expressed targets subject to the viability of individual schemes. The EREA was relevant evidence concerning the comparative economic benefits of regeneration options. It did not become planning policy, alter the development plan, or relieve future developers of the obligation to provide current viability assessments. The authorities were not required to test an abstract option against a target percentage of affordable housing when preparing supplementary guidance.
3. Ground 4 dismissed. Social rented housing was a form of affordable housing, but the development plan separately protected it. Policy FRA 1 and the supporting text required that the existing quantity of social rented housing in the Opportunity Area not be reduced. The SPD, read as a whole, repeated and implemented that commitment. Its rejection of simple like-for-like replacement addressed overcrowding, hidden households and housing need; it did not authorise a net loss.
4. Ground 5 partly succeeded. The SPD was a plan or programme required by administrative provisions and set the framework for future development consent. SEA was therefore required. The assessments for the development plan and SPD adequately considered alternatives and cumulative effects, and duplication was unnecessary under the SEA hierarchy. However, LBHF and RBKC had failed to publish the statement required by regulation 16(4) of the SEA regulations. That omission occurred after adoption, caused no substantial prejudice and could be cured without repeating the assessment. The claim succeeded only to that extent. A mandatory order was to require publication of a compliant statement; the SPD was not quashed.