Holborn Studios Limited v Secretary of State for Housing Communities and Local Government

In a statutory review of a planning decision, “reprovision” of an existing cultural facility requires more than a bare possibility or opportunity that comparable uses might occur. The decision-maker must identify the relevant existing use, apply the policy to that use, and explain how the proposed development secures acceptable reprovision. The assessment is fact-sensitive and does not invariably require like-for-like replacement or protection of a particular operator’s bespoke requirements. Viability qualifications within development plan policies must be applied as part of the policy test. They do not create a general competing-uses balancing exercise, nor do commercial alternatives become material unless the scheme was deliberately designed to appear unviable.

GHL appealed against the refusal of planning permission for a mixed-use redevelopment of Holborn Studios in Hackney. An Inspector allowed the appeal, finding that the proposal complied with policies protecting cultural facilities and regulating employment floorspace, affordable workspace and affordable housing.

Holborn Studios applied for statutory review under section 288 of the Town and Country Planning Act 1990. The principal issues were whether the Inspector had lawfully assessed the reprovision of the existing photographic and creative cultural facility, whether withdrawn viability evidence should have been admitted, and whether the Inspector had failed to consider the merits of the existing use against a scheme falling short of policy expectations.

1. Ground 1(a) dismissed. The Inspector did not unlawfully treat the approved internal layouts as capable of being changed before completion. Condition 1 required construction in accordance with the approved plans, consistently with Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22. References to later changes could properly mean post-completion fit-out or alterations. The alleged error concerning loadbearing walls was not an established factual error and, in any event, the Inspector was entitled to make the relevant planning judgment. There was evidence supporting the conclusion that the basement could be fitted out for photographic studios.
2. Ground 1(b) upheld. Policies HC5 of the London Plan and LP10 of the Hackney Local Plan required acceptable reprovision of the existing cultural use. In this case, the predominant and significant use was a high-end photographic studio, so the Inspector was required to assess reprovision by reference to that use rather than treating any cultural use as sufficient. The assessment was fact-sensitive and did not require protection of Holborn Studios’ precise bespoke requirements.
3. The Inspector’s reasoning became internally inconsistent when she introduced the possibility of other cultural or creative uses, treated office accommodation as potentially available for cultural uses without sufficient safeguards, and failed to explain how the basement alone could constitute adequate reprovision. “Could”, “may” and similar expressions described only possibilities or opportunities. The policy required considerably more. The reasoning was therefore irrational and inadequately explained.
4. The challenge to the exclusion of withdrawn viability evidence failed. The Inspector had case-management control over the evidence before the inquiry, and it was too late for Holborn Studios to seek to rely on evidence formally withdrawn by GHL.
5. The challenge based on the merits of the existing use also failed. Viability qualifications formed part of the relevant policies. There was no general “competing uses” test or requirement for a separate balancing exercise involving GHL’s commercial decisions. The existing use was material in the context of protecting the cultural facility, which returned the analysis to Ground 1(b).
6. The statutory review claim was upheld only on Ground 1(b). Permission was granted on that ground and refused on Ground 2(a). The parties were invited to agree the draft order.

The judgment was a first-instance statutory review under section 288 of the Town and Country Planning Act 1990 of an Inspector’s decision allowing GHL’s planning appeal. The claim was upheld only on Ground 1(b).