Case Reference: 3226900

Our ref: APP/F5540/V/19/3226900
Mr Tom Horne Your ref: 00607/T/P1
DP9 Limited
100 Pall Mall
London
SW1Y 5NQ
31 March 2021
Dear Sir
TOWN AND COUNTRY PLANNING ACT 1990 – SECTION 77
APPLICATION MADE BY BLUESCAPE LIMITED
LAND AT 40 & 40A HIGH STREET, BRENTFORD, LONDON, TW8 0DS
APPLICATION REF: 00607/T/P1
1. I am directed by the Secretary of State to say that consideration has been given to the
report of Michael Boniface MSc MRTPI who held a public local inquiry on 6-9, 13-16 and
22 October 2020 into your client’s application for planning permission for demolition of
the existing office building and Arts Centre to provide 193 new dwellings within buildings
of part 6, part 7 storeys (Class C3), with ancillary ground floor retail/café, hard and soft
landscaping, revised vehicular access and all necessary enabling and ancillary works,
application reference 00607/T/P1, dated 4 August 2017.
2. On 15 April 2019, the Secretary of State directed, in pursuance of Section 77 of the Town
and Country Planning Act 1990, that your client’s application be referred to him instead of
being dealt with by the local planning authority.
Inspector’s recommendation and summary of the decision
3. The Inspector recommended that the appeal be approved.
4. For the reasons given below, the Secretary of State agrees with the Inspector’s
conclusions, and agrees with his recommendation. He has decided to grant permission.
A copy of the Inspector’s report (IR) is enclosed. All references to paragraph numbers,
unless otherwise stated, are to that report.
Environmental Statement
5. In reaching this position, the Secretary of State has taken into account the Environmental
Statement which was submitted under the Town and Country Planning (Environmental
Impact Assessment) Regulations 2011. Having taken account of the Inspector’s
comments at IR7, the Secretary of State is satisfied that overall the material provided
complies with the above Regulations and that sufficient information has been provided for
him to assess the environmental impact of the proposal.
Ministry of Housing, Communities & Local Government Tel: 0303 444 2853
Phil Barber, Decision Officer Email: PCC@communities.gov.uk
Planning Casework Unit
Matters arising since the close of the inquiry
6. The London Plan was adopted on 2nd March 2021. The policies from the previous
London Plan set out in IR15-20 have therefore been superseded.
7. A list of representations which have been received since the inquiry is at Annex A. The
Secretary of State is satisfied that the issues raised do not affect his decision, and no
other new issues were raised in this publication to warrant further investigation or
necessitate additional referrals back to parties. Copies of these letters may be obtained
on request to the email address at the foot of the first page of this letter.
Policy and statutory considerations
8. In reaching his decision, the Secretary of State has had regard to section 38(6) of the
Planning and Compulsory Purchase Act 2004 which requires that proposals be
determined in accordance with the development plan unless material considerations
indicate otherwise.
9. In this case the development plan consists of the recently adopted London Plan (2021)
and the Hounslow Local Plan (HLP) (2015). The Secretary of State considers that
relevant development plan policies include those set out at IR21-26 and those adopted in
the London Plan (2021) as set out at IR37-40.
10. Other material considerations which the Secretary of State has taken into account include
the National Planning Policy Framework (‘the Framework’) and associated planning
guidance (‘the Guidance’), and documents referred to at IR30-36.
11. In accordance with section 66(1) of the Planning (Listed Buildings and Conservation
Areas) Act 1990 (the LBCA Act), the Secretary of State has paid special regard to the
desirability of preserving those listed buildings potentially affected by the proposals, or
their settings or any features of special architectural or historic interest which they may
possess.
Emerging plan
12. The emerging Development Plan documents comprise of the West of Borough Local
Plan, the Great West Corridor Local Plan and Hounslow Site Allocations (IR41). The site
remains as an emerging site allocation under the emerging plan (Site 110 – Albany
Riverside).
13. Paragraph 48 of the Framework states that decision makers may give weight to relevant
policies in emerging plans according to: (1) the stage of preparation of the emerging plan;
(2) the extent to which there are unresolved objections to relevant policies in the
emerging plan; and (3) the degree of consistency of relevant policies to the policies in the
Framework. The emerging Development Plan documents that form part of the Local Plan
review are at an early stage. For the reasons given at IR41 the Secretary of State
considers that policies in the emerging documents carry limited weight.
Main issues
Site allocation
14. The Secretary of State notes (IR487) that Local Plan policies IMP2 and TC2 allocate the
Tall buildings
15. The Secretary of State has considered the new London Plan’s (2021) provisions on tall
buildings. He concludes that as the Hounslow Local Plan defines this as an area with
some suitability for tall buildings (IR490), the proposal would not conflict with part B of
Policy D9.
Impacts on heritage assets
16. The Secretary of State has given careful consideration to the Inspector’s analysis of
heritage issues at IR451-476. He agrees, for the reasons given at IR453 that there would
be no direct harm to designated heritage assets; any harm would arise from the impact of
the development on the significance derived from their settings. For the reasons given at
IR454-464 he agrees with the Inspector that the appeal proposal would have an effect on
the setting of Kew Gardens as a whole and also the setting of designated heritage assets
within it (IR464).
17. For the reasons given at IR465-466 he agrees that the effect of the scheme in the setting
of the Palace would be very minor (IR466).
18. For the reasons given at IR467-468 he agrees with the Inspector that the development
would not alter the Palace’s relationship with the river or the spacious and verdant setting
that provides an interlude from urban Brentford. He further agrees that the effect on
significance from the increased scale of the proposed buildings within its setting would be
minor (IR468).
19. He further agrees (IR469) that the proposed development would not harm the setting or
the significance of the Grade I listed Kew Palace flats and Grade II listed Kew Cottages in
any way.
20. He concludes for the reasons given above that the extent of the change to setting of the
Royal Botanic Gardens would be minor, and that the harm to the significance of the
assets would be approaching moderate on the ‘less than substantial’ scale. He
concludes, for the reasons set out at IR471 and IR475, that the cumulative harms, when
taken together with the direct harm, should be assessed as moderate on the ‘less than
substantial’ scale (IR471).
21. The Secretary of State has had regard to the impacts on the setting and significance of
the Kew Green Conservation Area (CA). For the reasons given at IR472-473 and IR475
he agrees with the Inspector that the development would diminish the semi-rural character
evident in this part of the Conservation Area to some extent but the effect on its
significance could not be described as more than slight, even taking into account the
cumulative effects (IR473).
22. For the reasons given at IR495, the Secretary of State considers that taking the assets
together, the overall harm to significance would be moderate on the ‘less than substantial’
scale. He agrees that this harm must attract great weight. Paragraph 196 of the
Framework states that where a development proposal will lead to less than substantial
harm to the significance of a designated heritage asset, this harm should be weighed
against the public benefits of the proposal. His conclusions on this test are set out below.
The Secretary of State agrees with the Inspector that there would be conflict with London
Plan (2021) policies HC1 and HC2 (IR492). HLP CC4 (IR490) requires a balance
between harm to designated heritage assets and public benefits.
Other harm
23. For the reasons given (IR477) the Secretary of State agrees with the Inspector that living
conditions at Lighterage Court/Kew Reach would not be unacceptably harmed, but that
the impact on neighbouring residents attracts slight negative weight.
24. He agrees with the Inspector that there no other harmful impacts that could not be
suitably mitigated by way of conditions and obligations (IR478).
Housing
25. The Secretary of State notes at IR479 that the Council has a strong housing land supply
position and that no on-site affordable housing would be provided but the scheme would
facilitate redevelopment of the Brentford Police Station site where 60 affordable units
would be delivered, along with a further 45 market units. He has taken into account that
the proposed 20% affordable housing provision across the two sites is only half of the
current strategic 40% policy target for the Borough and less still against the 50% London-
wide target. However, he notes that after independent assessment it is agreed by the
Council to be the maximum viable amount; the level of provision would also be subject to
potential uplift through a review mechanism. He agrees with the Inspector’s conclusions at
IR479 that housing provision overall should be afforded significant weight.
Arts Centre
26. For the reasons given at IR480, the Secretary of State agrees that the delivery of this
costly community asset in line with strategic policy priorities of the Council should be given
substantial weight.
Design & Public Realm
27. The Secretary of State has considered the Inspector’s reasoning at IR481 and agrees for
the reasons given that the proposed development and public realm improvements would
undoubtedly be an improvement in townscape terms, and this matter should attract
significant weight.
Other benefits of the proposals
28. The Secretary of State further agrees that some economic benefits would arise from the
development through construction jobs; permanent new jobs at the site and retained
permanent; and indirect economic uplift in the community. He agrees these, particularly
the short-term benefits add little to the other benefits already identified and carry little
additional weight (IR482).
Planning conditions
29. The Secretary of State has given consideration to the Inspector’s analysis at IR446-447,
the recommended conditions set out at the end of the IR and the reasons for them, and
to national policy in paragraph 55 of the Framework and the relevant Guidance. He is
satisfied that the conditions recommended by the Inspector comply with the policy test
set out at paragraph 55 of the Framework and that the conditions set out at Annex B
should form part of his decision.
Planning obligations
30. Having had regard to the Inspector’s analysis at IR448, the planning obligation dated 29
October 2020, paragraph 56 of the Framework, the Guidance and the Community
Infrastructure Levy Regulations 2010, as amended, the Secretary of State agrees with
the Inspector’s conclusion for the reasons given in IR448 that the obligation complies with
Regulation 122 of the CIL Regulations and the tests at paragraph 56 of the Framework.
Planning balance and overall conclusion
31. The Secretary of State considers that although there is conflict with London Plan policies
HC1 and HC2, taking into account his conclusions on the heritage balance at paragraph
34 below, the proposal is in accordance with the development plan taken as a whole. He
has gone on to consider whether there are material considerations which indicate that the
proposal should be determined other than in accordance with the development plan.
32. In line with paragraph 193 of the Framework and s.66(1) of the Act the Secretary of State
gives great weight to the heritage harms he has identified. He gives further slight weight
to the impact on residents of Lighterage Court/Kew Reach.
33. Against this he weighs the provision of housing, including affordable housing, which he
considers carry significant weight in favour of the scheme. He considers that the public
realm improvements carry significant weight and the provision of an Arts Centre adds
substantial weight. Economic benefits add a little weight.
34. The Secretary of State agrees with the Inspector at IR485 that the benefits of the appeal
scheme are collectively sufficient to outbalance the identified ‘less than substantial’ harm
to the Kew Green Conservation Area and to the highly significant heritage assets at the
WHS. He considers that the balancing exercise under paragraph 196 of the Framework is
therefore favourable to the proposal, whether the harms to the Conservation Area and
WHS are considered individually or cumulatively.
35. Overall, the Secretary of State considers that the material considerations in this case
indicate a decision in line with the development plan – i.e. a grant of permission.
36. The Secretary of State therefore concludes that planning permission be granted.
Formal decision
37. Accordingly, for the reasons given above, the Secretary of State agrees with the
Inspector’s recommendation. He hereby grants planning permission subject to the
conditions set out in Annex B of this decision letter for the demolition of the existing office
building and Arts Centre to provide 193 new dwellings within buildings of part 6, part 7
storeys (Class C3), with ancillary ground floor retail/café, hard and soft landscaping,
revised vehicular access and all necessary enabling and ancillary works, application
reference 00607/T/P1, dated 4 August 2017.
38. This letter does not convey any approval or consent which may be required under any
enactment, bye-law, order or regulation other than section 57 of the Town and Country
Planning Act 1990.
Right to challenge the decision
39. A separate note is attached setting out the circumstances in which the validity of the
Secretary of State’s decision may be challenged. This must be done by making an
application to the High Court within 6 weeks from the day after the date of this letter for
leave to bring a statutory review under section 288 of the Town and Country Planning Act
1990.
40. A copy of this letter has been sent to London Borough of Hounslow, Royal Botanic
Gardens Kew, Historic England and Historic Royal Palaces, and notification has been
sent to others who asked to be informed of the decision.
Yours faithfully
Phil Barber
This decision was made by the Secretary of State and signed on his behalf
Annex A Schedule of Representations
Annex B List of conditions
Annex A Schedule of Representations
General representations
Party Date
Lord Gardiner of Kimble 12 March 2021
BDP Pitmans on behalf of Historic England 11 March 2021
Annex B List of Conditions
1) The development hereby permitted shall begin not later than 5 years from the date of this
decision.
2) The development hereby permitted shall be carried out in accordance with the following
approved plans: A233-A-(00)-P100, A233-A-(01)-P100, A233A-(00)-P200, A233-A-(01)-
P200, A233-A-(01)-P102, A233-A-(01)-P110, A233-A-(01)-P113, A233-A-A-(01)-P202,
A233-AB-(01)-P203, A233-A-Z(01)-P301, A233-A-A-(01)-P302, A233-A-B-(01)-P303, A233-
A-C-(01)P304, A233-A-C-(01)-P305, PL1617.GA.100, PL1617.GA.200, PL1617.GA.300.
3) No development shall take place until a Construction MPlan (CMP)/Construction Logistics
Plan (CLP) have been submitted and approved by the Local Planning Authority. The CLP
shall cover as a minimum:
i) a site plan (showing the areas set out below);
ii) confirmation that a pre-start record of site conditions on the adjoining public highway will
be undertaken with Hounslow Highways and a commitment to repair any damage caused;
iii) provision for the parking of vehicles of site operatives and visitors; iv) provisions for
loading, unloading and storage of plant and materials within the site; v) details of access to
the site, including means to control and manage access and egress of vehicles to and from
the site for the duration of construction including phasing arrangements;
vi) details of vehicle routeing from the site to the wider strategic road network;
vii) the erection and maintenance of security hoarding including decorative displays and
facilities for public viewing, where appropriate;
viii) provision of wheel washing facilities at the site exit and a commitment to sweep adjacent
roads when required and at the reasonable request of the Council;
ix) a scheme for recycling/disposing of waste resulting from demolition and construction
works;
x) measures to ensure the safety of all users of the public highway especially cyclists and
pedestrians in the vicinity of the site and especially at the access;
xi) commitment to liaise with other contractors in the vicinity of the site to maximise the
potential for consolidation and to minimise traffic impacts;
xii) avoidance of network and school peak hours for deliveries and details of a booking
system to avoid vehicles waiting on the public highway;
xiii) all necessary traffic orders and other permissions required to allow safe access to the
site to be secured and implemented prior to commencement of construction;
xiv) details of the construction programme and a schedule of traffic movements. All
construction and demolition works shall be undertaken in accordance with the approved
CMP and CLP.
4) No demolition or construction work shall take place on the site except between the hours
of 8am to 6pm on Mondays to Friday and 8am to 4pm on Saturdays and not at all on
Sundays and Public Holidays.
5) Prior to the commencement of development, a construction travel plan shall be submitted
to and approved in writing by the Local Planning Authority in order to minimise reliance on
private car use by all contractors and construction staff. Such a plan shall include details of
measures to encourage sustainable travel to the site and to minimise site workers parking on
nearby public highways.
6) No development (except demolition, archaeological investigations, ground condition
investigations and intrusive site surveys and other enabling works: site clearance; soil
storage; remedial works in respect of any contamination or any other adverse ground
conditions; erection of any temporary means of enclosure and land raising) shall take place
until details and samples of all facing materials are submitted to and approved in writing by
the Local Planning Authority. The samples and details shall include:
i) brick (including brick and mortar on-site sample panel min. 2m x 2m);
ii) cladding materials (including system specifications/details and on-site samples) (where
relevant);
iii) window treatment (including sections/reveals and on-site sample);
iv) all privacy measures, (including obscure glazing details, privacy screens etc.); and
v) any other materials/details to be used. The development shall then be carried out in
accordance with the approved details and maintained as such thereafter.
7) Notwithstanding the details shown on the drawings hereby agreed, no residential unit in
Block A shall be occupied until drawings at 1:10 scale of the directional glass and
balustrades to be installed on the western elevation of Block A (for flats 4 and 5 on each floor
in Block A) hereby approved are submitted to and approved in writing by the local planning
authority. The development shall be carried out in accordance with the approved details
which shall be retained and maintained for the duration of the use.
8) Prior to the commencement of the development (except demolition, archaeological
investigations, ground condition investigations and intrusive site surveys and other enabling
works: site clearance; soil storage; remedial works in respect of any contamination or any
other adverse ground conditions; erection of any temporary means of enclosure and land
raising), details of both hard and soft landscape works shall be submitted to and approved in
writing by the Local Planning Authority. The works shall then be carried out as approved.
The detailed landscaping scheme shall include:
i) soft planting: including any grass and turf areas, trees, planters, shrub and herbaceous
areas including details of species, sizes, numbers/densities and sections of landscaped
areas;
ii) a 'Tree Planting Statement' providing full details, locations, specifications and construction
methods for all purpose; iii) built tree pits and associated above ground features, including
specifications for tree protection and a stated volume of suitable growing medium to facilitate
and promote the healthy development of the proposed trees, ensuring each tree has a soil
volume equivalent of 0.6 times its canopy area at maturity;
iv) hard landscaping: including ground surfaces, kerbs, edges, ridge and flexible paving,
furniture, steps, refuse disposal points and if applicable synthetic surfaces for both ground
level and roof terrace level (where relevant);
v) details of (and phasing programme for) the delivery of the River Walk as part of the
construction of the development;
vi) fences and walls and any other boundary treatments; - visitor cycle parking spaces (in the
form of Sheffield stands);
vii) any play spaces and play equipment (equivalent to the provision of 109sqm but aiming
for 272sqm);
viii) any signage (Legible London) and information boards;
ix) brown (biodiversity) roofs/green walls (where relevant);
x) any CCTV equipment;
xi) an external lighting strategy; and
xii) any other landscaping feature(s) forming part of the scheme.
The submission shall include a management programme for the lifetime of the development,
which shall include: long term design objectives, management responsibilities and
maintenance schedules for all hard and soft landscape areas, and details of any temporary
landscaping (including boundary treatment) to be provided and management thereof. All
landscaping comprised in the approved details shall be carried out during the first planting
and seeding seasons following completion of construction works. Any trees or shrubs
planted (including any such replacements) which die within three years from the date of
planting shall be replaced in the next planting season with the same species, and of
comparable maturity. The development shall be carried out strictly in accordance with the
details so approved (including the River Walk delivery programme) and shall be maintained
in accordance with the approved management programme.
9) No development (except demolition, archaeological investigations, ground condition
investigations and intrusive site surveys and other enabling works: site clearance; soil
storage; remedial works in respect of any contamination or any other adverse ground
conditions; erection of any temporary means of enclosure and land raising) shall take place
until a scheme of acoustic insulation and any other necessary means of ventilation provided,
taking into consideration the recommendations of the Noise and Vibration chapter in the
Environmental Statement, is submitted to and approved by the Local Planning Authority.
Such a scheme shall include details of measures to ensure the residential accommodation
does not exceed the ‘good’ limits contained in BS8233. The details shall include material
specification and predicted performance of the materials proposed. Any works that form part
of such a scheme shall be completed as approved before any part of the development is first
occupied.
Prior to the development being occupied, sound insulation test reports demonstrating
compliance with the scheme approved under this condition, shall be submitted to and
approved in writing by the Local Planning Authority.
10) Each residential unit shall meet M4(2) Building Regulations as shown on the hereby
11) A minimum 10% ‘Wheelchair User Dwellings’ built to Building Regulations M4(3)
standard shall be provided as identified on the approved plans.
12) No part of the development shall be occupied until the waste and recycling facilities for
the residential element of the development, as shown on the approved plans, have been
provided and made available for use by residents. Such facilities shall remain throughout the
lifetime of the development and shall be used for no other purposes.
13) Notwithstanding the details shown on the approved plans, prior to the commencement of
the development (except demolition, archaeological investigations, ground condition
investigations and intrusive site surveys and other enabling works: site clearance; soil
storage; remedial works in respect of any contamination or any other adverse ground
conditions; erection of any temporary means of enclosure and land raising), details of the
waste and recycling storage facilities for the commercial use at the ground floor shall be
submitted to and approved in writing by the Local Planning Authority. No part of the
development shall be occupied until the waste and recycling facilities thereby approved have
been provided and thereafter such facilities shall be retained throughout the lifetime of the
development and shall be used for no other purposed. No refuse or recycling waste bins
shall be stored on the public highway.
14) Any fixed external plant shall be designed and installed to ensure that noise emanating
from such plant is at least 10dB below the background noise levels when measured from the
nearest sensitive receptors. Plant shall be set in from the roof boundaries by a minimum of
2m. No further fans, louvres, ducts or other external plant shall be installed without the
written prior approval of the Local Planning Authority.
15) Notwithstanding the details shown on the approved plans, prior to the commencement of
the development (except demolition, archaeological investigations, ground condition
investigations and intrusive site surveys and other enabling works: site clearance; soil
storage; remedial works in respect of any contamination or any other adverse ground
conditions; erection of any temporary means of enclosure and land raising), full details
(including manufacturers’ specifications) of cycle parking facilities (with the provision of
Sheffield stands and the reduction of individual cycle stores to include no more than 50
cycles) shall be submitted to and approved in writing by the Local Planning Authority. The
approved facilities shall conform to current guidance such as the TfL London Cycling Design
Standards in design and layout as at the date of permission and be fully implemented and
made available for use before the first occupation of the development and thereafter retained
for use at all times without obstruction.
16) Prior to the first occupation of the development, the parking, loading and turning spaces
as set out in the approved plans, shall be constructed and made available for use. These
shall include a minimum 20% ‘active’ Electric Vehicle Charging spaces and 20% ‘passive’
Electric Vehicle Charging spaces. The parking, loading and turning spaces shall then be
retained as such and shall not be used for any other purposes thereafter. No loading or
unloading shall occur on the public highway.
17) Pedestrian visibility splays as shown on the approved plans either side of the vehicular
access on the High Street shall be provided prior to first occupation of the development and
maintained as such thereafter with nothing over 600mm in height within the visibility splays..
18) The development hereby permitted shall not commence (except demolition,
archaeological investigations, ground condition investigations and intrusive site surveys and
other enabling works: site clearance; soil storage; remedial works in respect of any
contamination or any other adverse ground conditions; erection of any temporary means of
enclosure and land raising) until a finalised roof plan showing the proposed location of the
solar PV panels has been submitted to and approved in writing by the Local planning
Authority to show that the development will be constructed in accordance with the approved
Energy Strategy, and any subsequent approved revisions. The development shall be
implemented in accordance with the approved Energy Strategy and shall not commence
above ground until full Design Stage calculations under the Standard Assessment Procedure
have been submitted to and approved in writing by the Local planning Authority to show that
the development will be constructed in accordance with the approved Energy Strategy, and
any subsequent approved revisions, and achieves a minimum 35% reduction in emissions
on Part L Building Regulations. Prior to first occupation of the building(s) evidence (e.g.
photographs, installation contracts and As-Built certificates under the Standard Assessment
Procedure) should be submitted to the Local Planning Authority and approved in writing to
show that the development has been constructed in accordance with the approved Energy
Strategy, and any subsequent approved revisions, and achieves a 35% reduction in
emissions on Part L Building Regulations. Upon final commencement of operation of the
solar PV panels, suitable devices for the monitoring of the solar PV panels shall have been
installed, and the monitored data shall be submitted automatically to a monitoring web-
platform at daily intervals for a period of three years from the point of full operation.
19) Prior to first occupation of the building(s), evidence should be submitted to the Local
Planning Authority and approved in writing to show that the development has made sufficient
provisions to enable the connection to a district heating network in the future.
20) Prior to commencement of works above ground level, evidence shall be submitted to the
Local Planning Authority and approved in writing to demonstrate that the internal water
consumption of the development will not exceed 105 litres/person/day in line with The Water
Efficiency Calculator for new dwellings from the Department of Communities and Local
Government. Prior to first occupation of the building(s) evidence (schedule of fittings and
manufactures literature) should be submitted to the Local Planning Authority and approved in
writing to show that the development has been constructed in accordance with the approved
internal water use calculations.
21) No development (except demolition, archaeological investigations, ground condition
investigations and intrusive site surveys and other enabling works: site clearance; soil
storage; remedial works in respect of any contamination or any other adverse ground
conditions; erection of any temporary means of enclosure and land raising) shall take place
until details have been submitted to and approved by the Local Planning Authority which
show that:
i) At least three of the key elements of the building envelope (external walls, windows roof,
upper floor slabs, internal walls, floor finishes/coverings) are to achieve a rating of A+ to D in
the Building Research Establishment (BRE) The Green Guide of specification.
ii) At least 50% of timber and timber products are to be sourced from accredited Forest
Stewardship Council (FSC) or Programme for the Endorsement of Forestry Certification
(PEFC) scheme.
iii) Detail measures taken to avoid construction or insulation materials which will release
toxins into the internal and external environment, including those that deplete stratospheric
ozone. The development shall not be occupied until evidence (e.g. photographs and copies
of installation contracts) has been submitted to the Local Planning Authority to demonstrate
that the development has been carried out in accordance with these requirements and it has
been approved in writing.
22) Prior to commencement of works (except demolition, archaeological investigations,
ground condition investigations and intrusive site surveys and other enabling works: site
clearance; soil storage; remedial works in respect of any contamination or any other adverse
ground conditions; erection of any temporary means of enclosure and land raising), final
detailed drainage designs (including drawings) of the proposed drainage scheme (taking into
consideration the information in the approved documents and the following correspondence
emails 14th December 2017) shall be submitted to and approved in writing by the Local
Planning Authority. These details shall specifically provide evidence of the connection to the
Thames Water Sewer Network and confirmation that the Environment Agency accepts the
discharge in the River Thames at an uncontrolled rate.
23) Prior to occupation, evidence that the drainage system has been built as per the final
detailed drainage designs (approved in condition 22) through the submission of photographs
and copies of installation contracts, and written confirmation that the drainage features will
be managed as per the detailed maintenance plan for the lifetime of the development, shall
be submitted to and approved in writing by the Local Planning Authority.
24) Before the development hereby permitted commences, except demolition:
i) Details of an intrusive site investigation are required in addition to the phase 1 desk study
previously submitted. These details shall be submitted to, and approved in writing by, the
Local Planning Authority. The site shall be investigated by a competent person to identify the
extent and nature of contamination. The report should include a tiered risk assessment of the
contamination based on the proposed end use of the site. Additional investigation may be
required where it is deemed necessary.
ii) If required, a scheme for decontamination of the site shall be submitted to the Local
Planning Authority, for written approval. The scheme shall account for any comments made
by the Local Planning Authority before the development hereby permitted is first occupied.
During the course of the development:
iii) The local planning authority shall be notified immediately if additional contamination is
discovered during the course of the development. A competent person shall assess the
additional contamination, and shall submit appropriate amendments to the scheme for
decontamination in writing to the Local Planning Authority for approval before any work on
that aspect of development continues. Before the development is first brought into use:
iv) The agreed scheme for decontamination referred to in clauses ii) and iii) above, including
amendments, shall be fully implemented and a written validation (closure) report submitted
to the Local Planning Authority for approval.
25) Prior to the installation of the CHP plant, an Air Quality Neutral Assessments for the
building, shall be submitted to and approved in writing by the Local Planning Authority. Such
assessments shall be undertaken against the benchmarks established in the Air Quality
chapter in the Environmental Statement and the Sustainable Design & Construction SPG,
ensuring that any boilers installed are Ultra Low Emission (<40mgNOx/kWh).
26) Prior to the commencement of the development (except demolition, archaeological
investigations, ground condition investigations and intrusive site surveys and other enabling
works: site clearance; soil storage; remedial works in respect of any contamination or any
other adverse ground conditions; erection of any temporary means of enclosure and land
raising), a Biodiversity Enhancement Strategy, incorporating the recommendations of the
Ecological Assessment Report by Peter Brett Associates dated July 2017 and the
incorporation of at least 2 bird boxes, 2 bat boxes and 1 log pile, shall be submitted to and
approved in writing by the Local Planning Authority. The approved Biodiversity Enhancement
Strategy shall be implemented prior to any building within that phase being first occupied.
Any enhancement measures shall be maintained throughout the lifetime of the development
or in accordance with the strategy set out in the Landscape MPlan.
27) Prior to the commencement of development, a scheme for the protection of the retained
trees, in accordance with BS5837:2012 shall be submitted to and approved in writing by the
Local Planning Authority. The scheme shall include:
a) A plan to a scale and level of accuracy appropriate to the proposal that shows the
position, crown spread and Root Protection Area of every tree on site in relation to the
approved plans and particulars. The positions of all trees to be removed shall be indicated
on this plan.
b) A schedule of tree works for all the retained trees, specifying pruning and other remedial
or preventative work, whether for physiological, hazard abatement, aesthetic or operational
reasons. All the tree work shall be carried out in accordance with BS3998:2010 – Tree Work
- Recommendations.
c) The details and positions (shown on plan at paragraph (a) above) of the Tree Protection
Barriers, identified separately where required for different phases of construction work. The
Tree Protection Barriers must be erected prior to each phase of construction commencing
and remain in place, undamaged, for the duration of that phase. No works shall take place
on the next phase until the Tree Protection Barriers are repositioned for that phase.
d) The details and positions of any underground service runs shall be shown on the plan
required at paragraph (a). The erection of fencing for the protection of any retained tree or
hedge shall be carried out in complete accordance with BS5837:2012, before any
equipment, machinery, or materials are brought onto the site for the purposes of
development or other operations. The fencing shall be retained intact for the full duration of
the development until all equipment, materials and surplus materials have been removed
from the site. If the fencing is damaged all operations shall cease until it is repaired in
accordance with the approved details. Nothing shall be stored or placed in any fenced area
in accordance with this condition and the ground levels within those areas shall not be
altered, nor shall any excavations be made without the written approval of the Local Planning
Authority.
28) No demolition or development shall take place until a stage 1 written scheme of
investigation (WSI) has been submitted to and approved by the local planning authority in
writing. For land that is included within the WSI, no demolition or development shall take
place other than in accordance with the agreed WSI, and the programme and methodology
of site evaluation and the nomination of a competent person(s) or organisation to undertake
the agreed works. If heritage assets of archaeological interest are identified by stage 1 then
for those parts of the site which have archaeological interest a stage 2 WSI shall be
submitted to and approved by the local planning authority in writing. For land that is included
within the stage 2 WSI, no demolition/development shall take place other than in accordance
with the agreed stage 2 WSI which shall include: A. The statement of significance and
research objectives, the programme and methodology of site investigation and recording and
The programme for post-investigation assessment and subsequent analysis, publication &
dissemination and deposition of resulting material. This part of the condition shall not be
discharged until these elements have been fulfilled in accordance with the programme set
out in the stage 2 WSI.
29) Prior to any part of the development being occupied, the provision of riparian lifesaving
equipment shall be provided along the river’s edge to a standard recommended in the 1991
Hayes Report on the Inquiry into River Safety. The lifesaving equipment shall be kept in
good working order and made available for use at all times.
30) Prior to the commencement of development, a scheme for river wall maintenance and
improvement works shall be submitted to and approved in writing by the Local Planning
Authority. Flood defences are to be commensurate with the lifetime of the development circa
100 years. The development shall then only proceed in accordance with the approved
scheme and shall be maintained as such thereafter.
Report to the Secretary of State for
Housing, Communities and Local
Government
by Michael Boniface MSc MRTPI
an Inspector appointed by the Secretary of State
Date 4 January 2021
SECTION 77 OF THE TOWN AND COUNTRY PLANNING ACT 1990
APPLICATION BY BLUESCAPE LIMITED
Inquiry held on 6-9, 13-16 and 22 October 2020. Site visit held on 23 October 2020
40 & 40A High Street, Brentford, London, TW8 0DS
File Ref: APP/F5540/V/19/3226900
https://www.gov.uk/planning-inspectorate
CONTENTS
Procedural Matters 1
The Site and Surroundings 3
Planning Policy 3
Planning History 9
The Proposals 9
Agreed Matters 9
The Case for the Applicant 18
The Case for the Council (LBH) 31
The Case for Historic England (HE) 42
The Case for Historic Royal Palaces (HRP) 69
The Case for Royal Botanic Gardens Kew (RBGK) 73
Interested Parties appearing at the Inquiry 81
Written Representations 81
Conditions 81
Planning Obligations 82
Inspector’s Conclusions 82
Recommendation 92
Appearances 92
Documents 93
Schedule of Conditions 101
https://www.gov.uk/planning-inspectorate Page 2
ABBREVIATIONS USED IN THIS REPORT
AH Affordable housing
AN Advice Note (HE)
AVR Accurate Visual Representation
BZ Buffer Zone (to a WHS)
CA Conservation Area
CIL Regs Community Infrastructure Levy Regulations 2010 (as amended)
EIA Environmental Impact Assessment
EiC Examination in Chief
EiP Examination in Public
ES Environmental Statement
Framework National Planning Policy Framework
GLA Greater London Authority (the Mayor of London)
GPA Good Practice Advice (in Planning)
GWC Great West Corridor
HE Historic England
ICOMOS International Council on Monuments and Sites
IPLP Intend to Publish version of the London Plan
LB&CA Act Listed Buildings and Conservation Areas Act
LBH London Borough of Hounslow
LPA Local Planning Authority
LPR Local Plan Review
MPlan WHS Management Plan (for Kew Gardens)
OUV Outstanding Universal Value
P&CP Act Planning and Compulsory Purchase Act 2004
PPG Planning Practice Guidance
PTAL Public transport accessibility level
RBGK Royal Botanic Gardens Kew
RPG Registered Park and Garden
RX Re-examination
s106 Section 106 of the T&CP Act
SoCG Statement of Common Ground
SoS Secretary of State (for Housing, Communities and Local
Government)
SOUV Statement of OUV
SPD Supplementary Planning Document
SPG Supplementary Planning Guidance
T&CP Act Town and Country Planning Act 1990
TfL Transport for London
THVIA Townscape, Heritage and Visual Impact Assessment
UNESCO United Nations Educational, Scientific and Cultural Organization
XX cross-examination
WHS World Heritage Site
WHS SPG London’s World Heritage Sites – Guidance on Settings
Mayor of London Supplementary Planning Guidance (SPG) 2012
https://www.gov.uk/planning-inspectorate Page 3
File Ref: APP/F5540/V/19/3226900
40 & 40A High Street, Brentford, London, TW8 0DS
• The application was called in for decision by the Secretary of State by a direction, made
under section 77 of the Town and Country Planning Act 1990, on 15 April 2019.
• The application is made by Bluescape Limited to the Council of the London Borough of
Hounslow.
• The application Ref: 00607/T/P1 is dated 4 August 2017.
• The development proposed is demolition of the existing office building and Arts Centre to
provide 193 new dwellings within buildings of part 6, part 7 storeys (Class C3), with
ancillary ground floor retail/café, hard and soft landscaping, revised vehicular access and
all necessary enabling and ancillary works.
• The reason given for making the direction was that the Secretary of State has considered
his policy on calling in planning applications and concluded, in his opinion, that the
application should be called-in.
• On the information available at the time of making the direction, the following were the
matters on which the Secretary of State particularly wished to be informed for the
purpose of his consideration of the application:
a) The extent to which the proposed development is consistent with the Government
policies for delivering a sufficient supply of homes (NPPF Chapter 5);
b) The extent to which the proposed development is consistent with the Government
policies for building a strong, competitive economy (NPPF Chapter 6);
c) The extent to which the proposed development is consistent with the Government
policies for conserving and enhancing the historic environment (NPPF Chapter 16);
d) The extent to which the proposed development is consistent with the development plan
for the area including any emerging plan;
e) and any other matters the Inspector considers relevant.
Summary of Recommendation: that the application be approved.
Procedural Matters
1. The application was made to the London Borough of Hounslow (LBH), which
resolved to grant planning permission on 8 February 2018, subject to referring
the matter to the Mayor of London1. The Mayor of London confirmed in a letter
dated 15 October 2018 that he did not wish to take over the application and was
content for the Council to determine the case. The application was subsequently
called-in by the Secretary of State (SoS) for determination in a direction dated
15 April 2019.
2. A pre-Inquiry meeting took place on 7 January 2020, the outcome of which was
set out in an Inspector’s Note2. In addition, a Case Management Conference was
held on 7 August 2020 and subsequently summarised in a Note3.
3. The Inquiry sat between 6 October and 22 October 2020. It was held as a virtual
event (using videoconferencing) in light of the ongoing pandemic. As well as an
accompanied site visit on 23 October 2020, I visited the site and surroundings on
an unaccompanied basis on 20 February 2020 so as to gain an appreciation of
relevant views during the winter months, when trees were not in leaf.
4. Prior to the Inquiry, I agreed to the applicant’s request to make use of virtual
reality headsets. These allowed 360-degree panoramic views of the proposed
1 In accordance with the Town & Country Planning (Mayor of London) Order 2008
2 Core Document (CD) F1
3 CD F5
https://www.gov.uk/planning-inspectorate Page 1
development in its context using the Accurate Visual Representations (AVR)
before the Inquiry. These were used by the main parties and me during the
accompanied site visit.
5. A Statement of Common Ground (SoCG) (March 2020)4 was agreed between the
applicant and the Council and subsequently updated by way of an Addendum
(October 2020)5. A Heritage SoCG (April 2020)6 was agreed between the
applicant, Council, Historic Royal Palaces (HRP) and Royal Botanic Gardens Kew
(RBGK). A separate Heritage SoCG (April 2020)7 was signed by the applicant,
Council and Historic England (HE). Further topic specific SoCG’s were agreed
between the applicant and the Council in relation to transport8 and viability9.
6. Drawings were amended during the application process and it was common
ground that the documents submitted with the application, and its amendments
prior to the SoS call-in, are those for which planning permission is sought10.
7. It was agreed that the Environmental Statement (ES) (August 2017)11 is legally
compliant and adequate for determining the application12. However, RBGK and
HRP considered that the Townscape, Heritage and Visual Impact Assessment
(THVIA) and ES did not meet the information requirements of the relevant policy
and guidance because: they do not take account of established methods for
assessing the harm to the setting of a World Heritage Site (WHS); they were
flawed in their approach to cumulative assessment; they did not take proper
account of Supplementary Planning Guidance (SPG) or Planning Practice
Guidance (PPG) in assessing cumulative impacts, and did not set out any review
of reasonable alternatives that have been considered. The applicant
subsequently supplemented this information with a Heritage Impact Assessment
(2020)13. Taken together, I am satisfied that sufficient information has been
provided to meet the requirements of the Town and Country Planning
(Environmental Impact Assessment) Regulations 201114 and to assess the
environmental impact of the proposal.
8. The SoS has recently considered two other applications for tall buildings in
Hounslow and in the setting of the RBGK. The Citroen site15 involved a mixed-
use development of 441 residential units along with a range of commercial uses
within buildings of 12, 13, 16, 17 and 18 storeys and was granted planning
permission. The Chiswick Curve16 comprised a mixed-use development involving
327 residential units in buildings of 25 and 32 storeys but was refused. These
decisions were referenced extensively throughout the Inquiry. Whilst this
4 CD F2
5 CD F15
6 CD F3
7 CD F4
8 CD F6
9 Supplementary Proof of Tom Horne, Appendix A
10 CD F2, paras. 3.2 & 4.4
11 CD C13-C16
12 CD F3, para. 25 and CD F2, para. 4.2
13 Proof of Robert Tavernor, Appendix RT2
14 Applicable under transitional provisions
15 CD A26
16 CD A21
https://www.gov.uk/planning-inspectorate Page 2
application is to be considered on its own merits, there are notable parallels
between the schemes given that some of the same heritage assets are involved.
9. The Council has resolved to grant planning permission for redevelopment of the
former Brentford Police Station site, also referred to as the ‘Half Acre site’. This
scheme would be linked to the current application via planning obligations as it is
intended to be the location for the re-provided Watermans Arts Centre and the
affordable housing associated with the current scheme17.
The Site and Surroundings
10. The approximately 0.63 ha site is located between Brentford High Street to the
north and the River Thames to the south. Watermans Park is to the east, whilst
Lighterage Court stands directly to the west, a residential block rising to 6
storeys. A two-storey office building known as Max Factor House currently exists
on the site, along with the Watermans Arts Centre. The town centre and
surrounding area accommodates a range of commercial and residential buildings.
11. Across the Thames is the London Borough of Richmond with Kew Gardens and
Kew Green, both of which are designated as Conservation Areas (CAs). Kew
Gardens is also a Grade I Registered Park and Garden (RPG) and, was inscribed
as a World Heritage Site (WHS) in 2003. The WHS has roughly the same
boundaries as the RPG and the CA. It contains many listed buildings including
Kew Palace (also a Scheduled Ancient Monument), the Orangery, the tall Pagoda,
and others at Grade I. The WHS’s Buffer Zone (BZ) incorporates Kew Green and
extends to the Brentford side of the Thames, abutting the site.
12. There are many other listed buildings within the WHS, including the Grade I listed
Kew Palace Flats (also known as the Royal Kitchens) and Grade II listed Kew
Cottages, both of which stand close to Kew Palace. Of the many historic
structures within the Gardens, Kew Palace survives while the White House has
been demolished. The Great Lawn and lake are much smaller than when
designed by Chambers and redesigned by Burton (and others) as part of the 18th
and 19th Century landscapes. Kew Green CA was designated in 1969, has since
been extended, and contains 38 listed buildings, four of which are listed at
Grade II*.
13. The site is within an Archaeological Priority Area; an Air Quality Management
Area; an area of Industrial History/Contamination; and the Thames Policy Area,
for which the site is designated as being suitable for mixed use development.
Waterman’s Park is an area of Local Open Space. The site lies partially within
Flood Zones 2 and 3a, although an existing flood defence wall exists along the
length of the application site.
Planning Policy
14. The relevant policy and guidance, including Supplementary Planning Guidance
(SPG) and emerging policy, is listed in the SoCG18. The development plan, so far
17 CD F2, paras. 8.3 & 9.2 and Proof of Tom Horne, App. A
18 CD F2, Section 7
https://www.gov.uk/planning-inspectorate Page 3
as it is relevant to the application, comprises the London Plan (2016) (London
Plan)19 and the Hounslow Local Plan (2015) (HLP)20.
London Plan (London Plan)
15. Of particular relevance, London Plan Policy 7.4 expects development to have
regard to the form, function, and structure of an area, place or street and the
scale, mass and orientation of surrounding buildings; and sets criteria for
planning decisions to achieve the aim that it would provide a high quality design
response.
16. London Plan Policy 7.6 demands that architecture should make a positive
contribution to a coherent public realm, streetscape and wider cityscape; that it
should incorporate the highest quality materials and design appropriate to its
context. It also sets criteria for planning decisions to ensure that buildings and
structures should be of the highest architectural quality which includes being of a
proportion, composition, scale and orientation that enhances, activates and
appropriately defines the public realm. Further, development should comprise
details and materials that complement, not necessarily replicate, the local
architectural character and should not cause unacceptable harm to the amenity
of surrounding land and buildings, particularly residential buildings, in relation to
privacy, overshadowing, wind and microclimate – this is particularly important for
tall buildings.
17. London Plan Policy 7.7 sets the strategic context for tall and large buildings,
which should be part of a plan-led approach to changing or developing an area by
the identification of appropriate, sensitive and inappropriate locations. It requires
that such buildings should not have an unacceptably harmful impact on their
surroundings. Policy 7.7E expects that the impact of tall buildings in sensitive
locations should be given particular consideration. Such areas might include CAs,
listed buildings and their settings, RPGs, and WHSs.
18. For planning decisions, and with specific reference to listed buildings, RPGs, CAs,
and WHSs, London Plan Policy 7.8 makes plain that development affecting
heritage assets and their settings should conserve their significance, by being
sympathetic to their form, scale, materials and architectural detail.
19. London Plan Policy 7.10A establishes that development in WHSs and their
settings, including any BZs, should conserve, promote, make sustainable use of
and enhance their authenticity, integrity and significance and Outstanding
Universal Value (OUV). It notes that the Mayor has published SPG on London’s
WHSs – Guidance on Settings to help relevant stakeholders define the setting of
WHSs. Policy 7.10B for planning decisions sets out that development should not
cause adverse impacts on WHSs or their settings, it should not compromise a
viewer’s ability to appreciate its OUV, integrity, authenticity or significance. When
considering planning applications, appropriate weight should be given to
implementing the provisions of the WHS Management Plan (MPlan).
20. Housing requirements in general are covered in London Plan Policies 3.3-3.5.
Affordable housing (AH) is covered in London Plan Policies 3.8-3.13 which define
19 CD B18
20 CD B4
https://www.gov.uk/planning-inspectorate Page 4
the term, set targets, and expect the maximum reasonable amount of affordable
housing to be sought when negotiating on individual schemes while
acknowledging that negotiations should take account of development viability.
Hounslow Local Plan (HLP)
21. HLP Policy CC1 recognises the context and varied character of the borough’s
places and seeks to ensure that all new development conserves and takes
opportunities to enhance their special qualities and heritage. Policy CC2 aims to
retain, promote and support high quality urban design and architecture to create
attractive, distinctive, and liveable places.
22. To contribute to regeneration and growth, HLP Policy CC3 supports tall buildings
of high quality in identified locations which accord with the principles of
sustainable development. At (c) this supports a limited number of tall buildings in
Brentford town centre, ensuring they do not have a significant adverse impact on
the setting of, or views from heritage assets including the Kew Gardens WHS,
and that they respect and respond to special townscape and heritage value. It
sets criteria including that tall buildings should be of the highest architectural
design and standards; and take opportunities to enhance the setting of
surrounding heritage assets, the overall skyline and views. Criterion (f) does not
allow existing tall buildings which are in inappropriate locations to be a
justification for new ones; (l) expects tall proposals to be designed to give full
consideration to its form, massing and silhouette, including any cumulative
impacts, and the potential impact of this on the immediate and wider context.
23. Heritage is dealt with in Policy CC4 which expects development proposals to
conserve and take opportunities to enhance any heritage asset and its setting, in
a manner appropriate to its significance, and, where less than substantial harm
will result to the significance of a designated heritage asset, that is to be
balanced against the public benefits of the proposal. It requires developments to
conserve and enhance CAs and the OUV of Kew Gardens WHS its BZ and its
setting, including views to and from the site.
24. HLP Policy SC1 aims to maximise housing supply consistent with the principles of
sustainable development. Policy SC2 aims to maximise the provision of affordable
mixed tenure housing on development sites and sets a strategic target that 40%
of additional housing delivered across the borough between 2015 and 2030
should be affordable. HLP Policy SC3 seeks to address housing need through a
mix of housing sizes and types while Policy SC4 balances the need to make
efficient use of land against the necessity for high quality design and
accessibility.
25. Policy IMP2 sets out the approach to delivering site allocations so as to contribute
towards sustainable growth and supporting infrastructure. The site allocations in
the Local Plan are said to be the key delivery mechanism for achieving the
identified housing, employment, retail and infrastructure needs set out in the
Local Plan. The appeal site is allocated as Site 11 Brentford – Albany Riverside,
anticipated to deliver a mixed-use development on a floorspace ratio of 50:50
residential to non-residential, reflecting the need to re-provide the strategically
important Arts Centre. Site allocation 15 – Brentford Police Station, is identified
for a mixed-use scheme comprising education, residential and retail.
https://www.gov.uk/planning-inspectorate Page 5
26. Policy TC2 actively promotes the relocation of Waterman's Arts Centre into
Brentford town centre stating that a town centre location would be more suitable.
Statutory Duty
27. Section 66 of the Planning (Listed Buildings and CAs) Act 1990 places a duty on
the decision maker, in considering whether to grant planning permission for
development which affects a listed building or its setting, to have special regard
to the desirability of preserving the building or its setting or any features of
special architectural or historic interest which it possesses. The Courts have
found that considerable importance and weight should be given to the desirability
of preserving the setting of listed buildings.
National Planning Policy Framework (the Framework)
28. Section 16 of the Framework deals with heritage matters. In interpreting policy,
the Judgment in Bedford21 established that substantial harm (as considered at
Para. 195 of the Framework) requires that: very much if not all of the
significance of the asset was drained away so that ‘one was looking for an impact
which would have such a serious impact on the significance of the asset that its
significance was either vitiated altogether or very much reduced’.
Planning Practice Guidance (PPG)
29. PPG refers, amongst other things, to protecting a WHS and its setting from the
effect of changes which are relatively minor but which, on a cumulative basis,
could have a significant effect and notes that relevant policies in MPlans need to
be taken into account in determining relevant planning applications22.
Supplementary Planning Guidance (SPG)
30. The Mayor’s London’s World Heritage Sites – Guidance on Settings SPG (2012)
(WHS SPG)23 advises that: the setting of a WHS is recognised as fundamentally
contributing to the appreciation of a WHS’s OUV and changes to it can impact
greatly, both adversely and beneficially, on the ability to appreciate its OUV24.
The SPG also highlights the importance of cumulative impacts and that there may
be a tipping–point25. It adds that: The magnitude of impact on an attribute of
OUV or on other heritage assets is a function of the significance of the attribute
of OUV or other heritage asset and the scale of change. Attributes of OUV of
WHSs have a very high significance value, therefore even minor changes can
have a significant effect and their impacts will require close scrutiny26.
Other Documents
31. Historic England (HE) has published extensive guidance on the historic
environment including Managing Significance in Decision-Taking in the Historic
Environment27 and Good Practice Advice in Planning (GPA) Note 3 on The Setting
21 CD A22(c) - Bedford Borough Council v SoS [2013] EWHC 2847 (admin)
22 CD A24, PPG Refs: 18a-032-20190723 & 18a-034-20190723
23 CD B5
24 CD B5, para. 1.3
25 CD B5, para. 5.31
26 CD B5, para. 5.34
27 CD A7
https://www.gov.uk/planning-inspectorate Page 6
of Heritage Assets28. The latter states when assessing any application for
development which may affect the setting of a heritage asset, local planning
authorities may need to consider the implications of cumulative change and,
under Cumulative change, that where the significance of a heritage asset has
been compromised in the past by unsympathetic development affecting its
setting, to accord with NPPF policies consideration still needs to be given to
whether additional change will further detract from, or can enhance, the
significance of the asset.
32. HE’s Advice Note (AN) 4: Tall Buildings29 says: Each building will need to be
considered on its merits, and its cumulative impact assessed30, and that careful
assessment of any cumulative impacts in relation to other existing tall buildings
and concurrent proposals will also be needed. The existence of a built or
permitted tall building does not of itself justify a cluster or additions to a
cluster31. It reiterates the need for a clear and convincing justification for any
harm and adds: This may involve the examination of alternative designs or
schemes that may be more sustainable because they can deliver public benefits
alongside the positive improvement in the local environment; and if a tall building
is harmful to the historic environment, then without a careful examination of the
worth of any public benefits that the proposed tall building is said to deliver and
of the alternative means of delivering them, the planning authority is unlikely to
find clear and convincing justification for the cumulative harm32.
33. The RBGK CA was designated in 1991. Its appraisal33 has been largely
superseded by the WHS designation. The Kew Gardens WHS MPlan (2020)
(MPlan) is recently adopted34. As set out in the PPG (above) it should be taken
into account in this decision. It expands on the contribution setting makes to the
OUV of the WHS35 and adds that the use of trees as screening cannot be relied
upon in the long term to protect against inappropriate external development36.
34. Kew Green CA was designated in 1969. Its appraisal37 notes that this was due to
its character as an historic open space, the associated high quality of mostly
C18th development and its superior riverside environment. The Green constitutes
a fine example of an historic Green and is surrounded by large 18th and 19th
century houses, many of which are listed.
35. The Kew Gardens Statement of OUV (SOUV)38 notes that the 44 listed buildings
are monuments ‘of the past’ and reflect the stylistic expressions of various
periods. They retain their authenticity in terms of design, materials and
functions. Of the attributes of Kew Gardens WHS’s OUV, the two that would be
28 CD A5
29 CD A6
30 CD A6, para. 3.8
31 CD A6, para. 4.6
32 CD A6, para. 5.5
33 CD B13
34 CD A25
35 Section 3.3
36 Section 9.3.2
37 CD B10
38 CD A8
https://www.gov.uk/planning-inspectorate Page 7
affected by the proposal are: the rich and diverse historic cultural landscape
providing a palimpsest of landscape design; and the iconic architectural legacy39.
36. The International Council on Monuments and Sites (ICOMOS) undertook a
technical review of the appeal proposal, concluding that the present character of
the Thames is of low buildings of 2/3 storeys on the north bank, screened by
trees, mainly willows, on the aits (islands). The apartment towers proposed
would overtop these trees by several storeys. The towers would be located nearly
opposite Kew Palace, and would be visible from there, its garden and, from
further back, a wider area of the World Heritage property. Although the proposed
development would not be located on land within the strict limits of the buffer
zone, the adverse visual impact on the World Heritage property and its riverine
setting would nevertheless be considerable in terms of how it supports OUV. The
proposed design of the towers would clash in style and materials with other
buildings inside and outside the World Heritage property and would be
incompatible with the character of the landscape gardens, and thus be an
eyesore, negating Criterion (iv). ICOMOS considers that the current
development cannot be supported.
Emerging Policy
37. The Intend to Publish London Plan (December 2019) (IPLP)40 is delayed but is at
an advanced stage, having been considered at an Examination in Public (EiP) and
subject to a Panel report. That it is a material consideration of some weight.
With the SoS’s most recent letter, he has set out Directions for certain policies41.
It follows that other policies, which include heritage policies, are unlikely to be
altered.
38. Of particular relevance, IPLP Policy D9, for Tall Buildings, reads at C1)d) that: …
Proposals resulting in harm will require clear and convincing justification
demonstrating that alternatives have been explored…42. Policy D9C4) includes
the importance of considering cumulative impacts.
39. IPLP Policy H4 sets out specific measures to achieve its strategic target of 50% of
all new homes delivered across London to be genuinely affordable. IPLP Policy
HC1C expects development to conserve the significance of heritage assets and
their settings, including the active management of the cumulative impacts of
incremental change. Several policies support the principle of building a strong,
competitive economy, notably Policy GG5, and of making the best use of land
Policy GG2. None of these policies is subject to the Direction.
40. Policy HC2B of the IPLP expects development proposals in WHSs and their
settings, including any BZs, should conserve, promote and enhance their OUV,
including the authenticity, integrity and significance of their attributes, and
support their management and protection. In particular, they should not
compromise the ability to appreciate their OUV, or the authenticity and integrity
of their attributes. Policy HC2D adds that when considering planning applications,
39 CD A25, P.24
40 CD B16
41 CD B20
42 CD B16, p150
https://www.gov.uk/planning-inspectorate Page 8
appropriate weight should be given to implementing the provisions of the WHS
MPlan.
41. The Council has recently consulted on emerging policy in the West of Borough
Local Plan, the Great West Corridor Local Plan and Hounslow Site Allocations.
The appeal site remains amongst the emerging site allocations, as site 110 –
Albany Riverside but as a residential allocation for a minimum of 150 dwellings.
These documents are at a relatively early stage of preparation and are yet to be
examined by the Secretary of State. The applicant and the Council agree that
they currently attract only limited weight43.
Planning History
42. Prior approval was obtained for a change of use of the Max Factor building from
B1a office to C3 residential use (22 units) on 24 June 2014 (reference
00607/M/PA1) and on 6 June 2017 (00607/M/PA2).
43. There is no recent planning history for the Waterman's Arts Centre that is of
relevance to the current application.
The Proposals
44. The application for full planning permission proposes the redevelopment of the
site to provide 193 flats with 272sqm (GIA) retail (A1, A3 and A4) space at
ground floor alongside new landscaping, including provision of a new riverside
walkway.
45. The development would be arranged as five blocks with a maximum height of
eight storeys over a basement/lower ground floor level. The five blocks would be
set back from the High Street to allow for additional landscaping and the
widening of the existing footpath along the frontage of the site. They would be
positioned in a staggered arrangement such that some blocks step forward of
others to create a varied building line which is reflected on the riverside frontage.
The two end blocks would be seven storeys in height on the High Street frontage
with the three blocks in the middle being eight storeys. From the river these
would appear as eight and nine storey buildings given the change in levels across
the site from the High Street to the river frontage.
46. Each of the five blocks would have its own entrance and core fronting onto the
High Street. At basement/lower ground floor level would be the car park with
cycle and refuse/recycling stores and other plant with the retail space which
would front onto the river and Waterman’s Park, as well as private landscaped
gardens for residents which would be raised above the new public riverside walk.
Agreed Matters
Common ground between the applicant and the Council44
47. The ES is compliant with the requirements of the Regulations. Appropriate
mitigation measures are recommended in the draft conditions where significantly
adverse effects have been identified in the ES.
43 CF F2, para.7.2
44 CD F2, F6 and F15
https://www.gov.uk/planning-inspectorate Page 9
48. The site is suitable and allocated for mixed-use redevelopment.
49. The principle of new residential development at the site is entirely appropriate
and accords with the Local Plan Policy SC1 (Housing Growth), the Site Allocation
and London Plan policies 3.3 (Increasing London's Housing Supply) and 3.4
(Optimising Housing Potential).
50. The redevelopment of this brownfield site in a highly sustainable location would
deliver much needed housing, whilst simultaneously supporting sustainable
intensification and enhanced vibrancy and vitality of this District Centre and the
wider regeneration objections for the area.
51. Local Plan policy TC2 (Ensuring the Future Viability of Town Centres) actively
promotes the relocation of Waterman's Arts Centre into Brentford town centre
stating that a town centre location would be more suitable.
52. The Section 106 obligations (s.106) for the BPS Site secure the delivery of the
Arts Centre at the BPS Site. The BPS Site is not within the Brentford Town
Centre boundary but is immediately adjacent and is located on the main north-
south connection between Brentford station and the High Street. Consequently,
it has an excellent public transport accessibility level and is located close to a
range of transport modes as well as other services. As such, it is an appropriate
location for a new culture and leisure facility, in accordance with Policy CI4 and
policy CI1 (Providing and Protecting Community Facilities).
53. The new, purpose-built facility would include a theatre, cinema, café, bar,
restaurant and studio / gallery space and provide a 25% uplift in floorspace
compared to the existing Waterman's Arts Centre. This would provide the
potential for the arts centre to operate more efficiently and thereby be more
financially self-sufficient in the event that Council funding were to be withdrawn.
54. There is a significant housing need across London. Local Plan Policy SC1 requires
that a minimum of 12,330 additional dwellings are completed during the period
2015 to 2030. This equates to 822 dwellings per annum (dpa); and the draft New
London Plan target for Hounslow was 2,182 dpa, though the Inspector’s report
following examination of the plan recommends this be lowered to 1,782 dpa and
the Intend to Publish version adopts this figure.
55. The London Plan Panel Report did not disagree with the Mayor’s identified
housing need of 66,000 homes a year. It recommends a reduced figure of 52,000
homes per year only on the basis of overly optimistic reliance on small sites. The
Intend to Publish London Plan (4.1.8) also states that the above target is a
minimum baseline.
56. The Council has a deliverable five-year housing land supply that will address the
new requirement of the Intend to Publish London Plan (as well as the current
Hounslow Local Plan).
57. No affordable housing would be provided at the Site under the Proposals.
However, the proposals are linked to the re-development of the former Brentford
Police Station site at Half Acre (BPS Site) by the s.106 in Annex C. This would
allow the higher sales values achievable at the site to cross-subsidise the delivery
of 60 affordable homes at the BPS Site (in line with the Site 11 allocation policy).
https://www.gov.uk/planning-inspectorate Page 10
58. The s.106 would secure 20% of the accommodation as affordable housing across
the two sites. BPS Surveyors conducted a rigorous independent review of the
viability assessment submitted by the applicant on behalf of the Council and the
GLA and found that this is the maximum reasonable level of affordable housing
provision. This exercise has been updated and BPS continue to agree that the
affordable housing provision is above the maximum reasonable amount on a
current day basis.
59. The s.106 includes an early viability review (intended to incentivise swift housing
delivery) and late viability review mechanisms (in order to upwardly reappraise
the maximum level of affordable housing based on actual costs and values). This
is in accordance with the Council’s Local Plan Policy SC2 and the Mayor’s
Affordable Housing and Viability SPG.
60. When assessed with the proposals for the BPS Site, in light of the effect of the
s.106 which links the two schemes, the proposals would make a significant
contribution towards affordable housing delivery in the borough that would
continue to be the maximum reasonable level.
61. The proposal is of high design quality and: would allow for views through the
site; provide good natural light and a multi-aspect outlook for all future
residents; its multi-faceted design would help to break up the overall mass and
add interest; and the new publicly accessible riverside walk represents a
significant improvement beyond the current, convoluted and unpleasant route
along the river. The proposals represent an improvement from the existing,
unimposing and uninspiring building that currently marks this approach to
Brentford town centre
62. It is recognised that in order to achieve the level of accommodation required to
generate the necessary revenue to deliver the new arts centre the height and
overall massing of the building would be required to be greater than its general
surroundings.
63. A contemporary palette of materials is proposed for the façade treatment of the
building which would provide a high-quality finish that would: help to accentuate
the different blocks and blend with the setting of Kew Palace on the opposing side
of the river; include detailing that helps provide interest and mark important
elements of the building; work to break up the scale and mass of the new
building but also gives a sense of identity and legibility; ensure consistency of
appearance and uniformity that responds to the local vernacular.
64. The proposed landscaping would help to define the spaces to the front of the
buildings, create routes to entrances and help to delineate between public and
private spaces through different surface treatments and would help to soften the
appearance of the development, in particular when viewed from the public
footpath along the riverside.
65. The applicant's THVIA considered the impact of the proposals on the heritage
significance of heritage assets in the area within the vicinity of the site from
agreed viewpoints. All of the key views were considered and those selected were
considered to be the most sensitive.
https://www.gov.uk/planning-inspectorate Page 11
66. The proposals would not harm the setting and / or significance of the Kew Bridge
Conservation Area, the Grand Union Canal & Boston Manor Conservation Area,
the St Paul's Conservation Area or other listed buildings.
67. The Brentford Former Police Station detracts from the Royal Botanic Gardens Kew
World Heritage Site. It is a negative element of the setting of Kew Palace, St
Pauls CA, The Butts CA, Grand Union Canal and Boston Manor CA, Kew Gardens
CA and Kew Green CA by virtue of its overtly poor architectural quality. In
particular, it is a low quality ‘podium and tower building’ which has a poor
relationship to the surrounding streets. This is because of its reductive
(functional) panel construction, the blank north and south elevations, its generic
a-contextual form, the lack of clear street frontage and the poorly resolved ‘left
over’ space surrounding the building. These issues are exacerbated by the poor
condition of the building and that the building is vacant and currently boarded up.
68. The removal of the Brentford Former Police Station would be a heritage benefit to
the Royal Botanic Gardens Kew World Heritage Site, the setting of Kew Palace, St
Pauls CA, The Butts CA, Grand Union Canal and Boston Manor CA, Kew Gardens
CA and Kew Green CA.
69. The appeal proposal would make a neutral contribution to the significance of the
St Paul's Brentford CA, Grand Union CA and the Kew Bridge CA as part of their
setting.
70. The redevelopment proposals at the BPS site would not cause harm to any
heritage assets. There is a heritage benefit from the associated BPS Site scheme
(LPA ref: 00540/A/P6) where “…the proposal would overall enhance the
conservation area, introducing a high quality new building in place of an existing
building that represents an intrusion into the character and appearance of the St
Paul’s Conservation Area”.
71. The Scheme's proposed density is 306 units/hectare (or 870 habitable
rooms/hectare). The Site falls between the 'Urban' and 'Central' area types under
London Plan Policy 3.4 (which seeks to ensure that new housing developments
optimise the use of land relative to the density matrix). The 'Urban' range is
considered to be that most appropriate for the site. The site's public transport
accessibility is PTAL3. The recommended density of 45-170 homes/hectare (or
200-450 habitable rooms per hectare) is therefore applicable using the Policy 3.4
matrix.
72. The draft New London Plan removes the density matrix but (DRLP Policy D6)
seeks to optimise density and states that residential development that does not
make the best use of the site should be refused. The scheme density is within
the optimal range and therefore acceptable on the basis of either the existing or
the emerging London Plan; in accordance with Local Plan Policy SC4 (Scale and
Design of New Housing Development) given the context and character of the site
and its setting; and accords with the optimal use of the site for the purposes of
the Local Plan and para.123 of the Framework.
73. The housing mix would help contribute towards an identified borough housing
shortage and result in a balanced, sustainable community, which would be in
keeping with its context where there is already a range of accommodation in the
area.
https://www.gov.uk/planning-inspectorate Page 12
74. All of the units either meet or exceed the minimum space standards prescribed in
the London Plan and the Local Plan.
75. A satisfactory level of daylight and sunlight would generally be received by a
significant majority of the new dwellings and would be broadly compliant with the
BRE guidance taking into account the need to provide private amenity space, the
layout and form of the development. The development would not unacceptably
harm neighbours’ living conditions.
76. The scheme has been designed to ensure residents benefit from an appropriate
outlook, in particular through the siting and layout of the individual blocks and
their interrelationship. There is an adequate separation distance between the
blocks. The Housing SPG and DRLP requirements are all met in this regard.
77. The site is close to the town centre and to Waterman's Park, the proposal would
deliver high quality spaces and there would be an overprovision of private
amenity space. The provision of communal amenity space is therefore acceptable
for Policy SC5 purposes.
78. The details for acoustic protection for internal areas could be secured by
condition to ensure that the relevant standards are achieved at the detailed
design/construction stage.
79. The proposals comply with the London Plan and Local Plan Policy CC2.
80. The principle of the waste and recycling strategy for the development is
acceptable and in accordance with the relevant Development Plan policies.
Compliance in this regard can be secured by condition.
81. Whilst there would be a noticeable impact in terms of daylight and sunlight at a
limited number of neighbouring properties, given the urban context of this site
and the scale of surrounding development, the impact is not considered to be
excessive and would not be unusual for the redevelopment of a site of this scale.
In addition, the impact in terms of overshadowing of adjacent amenity areas is
negligible. The proposals are therefore broadly in accordance with Local Plan
Policy CC2 and the impacts are not considered unreasonable.
82. The proposals would not create undue overlooking of existing adjacent habitable
rooms at Lighterage Court/Kew Reach. In any event, any such affects could be
mitigated through an alternative fenestration design on this flank which would
not affect the general appearance and cohesion of the development as a whole.
83. The proposals are not anticipated to have a significant impact on neighbouring
residents in terms of noise and disturbance and the proposals is in accordance
with Local Plan Policy EQ5 (Noise).
84. The number of vehicle movements associated with the site would be likely to fall
given the reduction in the size of the car park, whilst the number of visitors
would be likely to reduce. Comings and goings to/from the site would be of a
more residential nature, as opposed to the current situation with the arts centre
attracting more visitors at evenings and weekends. The café use would be
located at the opposing end of the site to the neighbouring dwellings and, as
such, would not impact upon the amenity of residents.
https://www.gov.uk/planning-inspectorate Page 13
85. The improvements to the riverside walkway would be likely to result in increased
footfall along the river frontage, and thereby around the adjacent developments,
but this is considered to be a significant benefit of the scheme as it would be
likely to increase natural surveillance.
86. The site has a Public Transport Accessibility Level (PTAL) of 3. This indicates that
a moderate provision of public transport is available and reflect its proximity to a
number of high frequency bus routes with short connections to a wider range of
public transport nodes.
87. The proposals are acceptable in highways safety terms and would not prejudice
the safety of pedestrians or other road users. Nor would it result in a severe
impact on the local road network subject to appropriate conditions and planning
obligations. There is no predicted increase in peak hour traffic movements over
the existing use. Consequently, it is not considered that the proposal would result
in any increases in traffic in the vicinity of the site.
88. The existing two-way vehicular access would be relocated to the west of its
current position. Pedestrian access would be separate to the vehicular access and
each block would have a main entrance fronting the High Street. The access
arrangements are considered acceptable. Appropriate delivery and servicing
arrangements would be secured by the s.106.
89. There would be 44 parking spaces provided in the proposed basement car park.
This equates to 0.23 spaces per dwelling and complies with London Plan parking
standards. Ten of these spaces would be designated as Blue Badge parking,
which is deemed adequate. The parking impact is considered to be acceptable
and would not have a significant impact on the availability of on-street car
parking in the surrounding area or result in significant parking stress for existing
residents.
90. A total of 320 cycle parking spaces are to be provided in the basement car park
and a further 9 short-stay cycle stands. This accords with London Plan parking
standards and is therefore considered to be acceptable.
91. Compliant provision of Electric Vehicle Charging Points would be secured by
condition and full details of the traffic light access to the car park would be set
out in the Car Parking MPlan. There are two car club parking bays in close
proximity to the site and the s.106 includes a commitment to provide free car
club membership for each property. These measures combined would help
promote sustainable modes of transport. A travel plan would also be secured by
the s.106.
92. The proposals include provision of a new riverside walk. This would link with the
existing Thames Path to the east and west of the site and thereby provide a
continuous, level route from Brentford to Kew Bridge. The path has been
generously designed, being 2.5m wide at its narrowest point to allow a wide
range of users access to the riverside. Public access to the riverside walkway
would be secured in perpetuity by the s.106.
93. The Council’s sustainability consultants (Low Carbon Europe) have reviewed the
submitted sustainability information and have confirmed that the strategy is
acceptable and represents the best approach to CO2 emission reductions. It is
https://www.gov.uk/planning-inspectorate Page 14
therefore considered that the proposed energy strategy would be acceptable and
would comply with the policies of the London Plan and adopted Local Plan.
94. Any potential archaeological impact of the proposals could be mitigated through
the implementation of an appropriate mitigation strategy as part of an
archaeological condition. Consequently, it is considered that with this
safeguarding condition, the proposal would not have a detrimental impact on
archaeology and would be in accordance with the Local Plan, London Plan and the
Framework.
95. The southern part of the site is located in Flood Zone 3 (High Probability) whilst
the central/northern part of the site is located in Flood Zone 1 (Low Probability).
The area is defended by the River Thames Tidal Defences which are maintained
to the statutory defence level of 5.94 metres AOD. The residential development
platform would be set at a level of 7 metres AOD, which is significantly above all
reference flood levels and above the recommended future defence levels to 2100.
The majority of the site is at 'Very Low' risk of flooding from surface water
sources. Subject to the imposition of conditions to secure the detailed design of
the proposed drainage strategy and a suitable maintenance plan, the proposals
would comply with the relevant Local Plan Policy EQ3 and London Plan policies
Policy 5.12 regarding flooding and surface water management.
96. The proposals comply with policy 5.21 (Contaminated Land) of the London Plan
and policy EQ8 (Contamination) of the Local Plan subject to the imposition of an
appropriate condition.
97. It is considered that the proposed development would be acceptable in respect of
potential impacts on air quality and would be in broad compliance with the
Framework, the London Plan and local policies, subject to safeguarding
conditions.
98. There would be a reduction in vehicle movements at the site, as a result of the
reduced car parking on site, and any additional noise from traffic associated with
the development is likely to be negligible given the existing background noise
environment. Any potential for additional noise sources from external plant
associated with the development could be addressed by conditions.
99. The site supports little or no resources of ecological value and, subject to the
imposition of appropriate safeguarding conditions, it is considered that there
would be no impact on designated areas in the vicinity of the site.
100. The proposals include the removal of four trees (one Category C and three
Category U) to facilitate the development. Replacement trees would be provided
to mitigate the loss of these trees.
101. Through the s.106, the delivery of the proposal would achieve the removal of
the vacant and increasingly derelict Brentford Police Station and its replacement
with a new building which would make a significant contribution to the wider
regeneration of Brentford Town Centre.
102. The following benefits of the Proposals taken as a whole deserve very
significant weight: the delivery of a new, purpose built and bespoke Arts Centre
adjacent to the town centre, tailored to the requirements and the needs of the
current Arts Centre operator and close to public transport links. The new Arts
Centre would be slightly larger in area terms and would be modern and efficient,
https://www.gov.uk/planning-inspectorate Page 15
as should be expected of a contemporary Arts Centre. It would be located along a
highly visible route that would further add to and strengthen Brentford’s offer;
redevelopment of the site and re-use of previously developed land that is
presently underutilised and has buildings of low townscape value, with the
creation of better quality buildings and landscaping (including the creation of new
public realm and enhanced Thames Path with disabled access); delivery of new
housing in the borough, including the affordable housing at the related Brentford
Police Station site subsidised by the scheme.
103. The scheme is in accordance with the adopted development plan when viewed
as a whole.
Common ground between the applicant, the Council and Historic England45
104. The application site itself does not contain any designated or formally
identified non-designated heritage assets, it does not contain any statutory listed
buildings and does not fall within the designated boundaries of a conservation
area. The site abuts, on the southern site boundary, the River Thames and abuts
but falls outside the buffer zone of Royal Botanic Gardens, Kew WHS (RBG Kew
WHS). The site falls within the setting of (and views to and from) a number of
heritage assets including the WHS, listed buildings, conservation areas and a
registered park and garden of historic interest.
105. The development proposal at the application site, has the potential to affect
the understanding and appreciation of the significance of each of the following
designated heritage assets as a result of change to the existing character of the
site as part of their settings: Royal Botanic Gardens, Kew – A World Heritage Site
(RBGK WHS), conservation area and grade I listed Registered Park and Garden;
Kew Palace – a grade I listed building and scheduled monument; Kew Palace
Flats – a grade I listed building; and Kew Green Conservation Area.
106. Kew Cottages are grade II listed buildings forming part of a group including
Kew Palace and Kew Palace Flats, however, there is no further impact to the
setting of these assets beyond those already identified in relation to other assets.
107. The direct visual impacts on the other heritage assets set out in the 2017
THVIA submitted by the applicant in support of the planning application are not
disputed and are not listed here. This statement does not preclude consideration
of cumulative setting impacts on the Gardens as a whole.
108. The key views in relation to the RBG Kew WHS are those of and from the
Grade I listed Kew Palace (being Views 16-21 within the submitted THVIA
(August 2017)). The key views in relation to the visual impact of the application
site on the RBG Kew WHS Buffer Zone and Kew Green Conservation Area are
Views 11-15 within the submitted THVIA.
109. The SoS is required to give considerable importance and weight to the
desirability of preserving the special interest and settings of listed buildings or
any features of special architectural or historic interest which they possess (under
section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act
1990). Preservation means not harming the interest in the building, as opposed
to keeping it utterly unchanged. Case law has established that if the policy
45 CD F4
https://www.gov.uk/planning-inspectorate Page 16
approach set out in the Framework concerning the consideration of heritage
impacts is followed then the statutory duty will have been fulfilled.
110. World Heritage Sites are of the highest significance and, as set out in
Paragraph 193 of the Framework, “[…great weight should be given to the asset’s
conservation (and the more important the asset, the greater the weight should
be)”, that is, the conservation of their significance, that being their OUV, and the
setting of the WHS.
111. The Framework states at Paragraph 194 that: “Any harm to, or loss of, the
significance of a designated heritage asset (from its alteration or destruction, or
from development within its setting), should require clear and convincing
justification.
112. There is no statutory duty relating to the setting of conservation areas,
therefore section 72(1) of the Planning (Listed Buildings and Conservation Areas)
Act is not engaged. There is no statutory duty relating to the special historic
interest or setting of registered parks and gardens. However, paragraph 194 of
the Framework is engaged in relation to development within the setting of a
conservation area, or within the setting of a registered park or garden.
113. The submitted 2017 ES, which includes the THVIA (and its view and
assessment methodologies) is adequate for the determination of the application.
The parties agree that the THVIA (August 2017) met and continues to meet the
information requirement of the ES regulations.
Common ground between the applicant, the Council, HRP and RBGK46
114. The application site does not contain any designated or formally identified non-
designated heritage assets; does not contain any statutory listed buildings and
does not fall within the designated boundaries of a conservation area; abuts, on
the southern site boundary, the River Thames and abuts but falls outside the
buffer zone of Royal Botanic Gardens, Kew WHS (RBG Kew WHS); falls within the
setting of (and views to and from) the RBG Kew WHS, a number of listed
buildings, conservation areas and a registered park and garden of historic
interest.
115. The development proposals have the potential to affect the significance of the
following designated heritage assets arising from change to the existing character
of the site as part of their settings: Royal Botanic Gardens, Kew – A World
Heritage Site (RBGK WHS), conservation area and grade I listed Registered Park
and Garden; Kew Palace – a grade I listed building and scheduled monument;
Kew Palace Flats – a grade I listed building; Kew Cottages – a grade II listed
building; and Kew Green Conservation Area.
116. The key views in relation to the visual impact of the proposed development on
the RBG Kew WHS are those of and from the Grade I listed Kew Palace which are
illustrated by, but not limited to, Views 16-21 within the submitted THVIA
(August 2017), which include general views from the Great Lawn area in the
WHS.
46 CD F3
https://www.gov.uk/planning-inspectorate Page 17
117. The key views in relation to the visual impact of the proposed development on
the RBG Kew WHS Buffer Zone and Kew Green Conservation Area are illustrated
by, but not limited to, Views 11-15 within the submitted THVIA.
118. The SoS is required to give considerable importance and weight to the
desirability of preserving the special interest and settings of listed buildings or
any features of special architectural or historic interest which they possess (under
section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act
1990). Preservation means not harming the interest in the building, as opposed
to keeping it utterly unchanged. Case law has established that the statutory duty
can have been fulfilled if the approach set out in the Framework and
development plan policies concerning the consideration of heritage impacts has
been followed.
119. WHS are designated heritage assets of the highest significance and, as set out
in Paragraph 193 of the Framework, “[…great weight should be given to the
asset’s conservation (and the more important the asset, the greater the weight
should be)”, including the contribution made to their significance, their OUV, by
their setting, and our ability to appreciate that OUV.
120. The Framework states at Paragraph 194 that: “Any harm to, or loss of, the
significance of a designated heritage asset (from its alteration or destruction, or
from development within its setting), should require clear and convincing
justification”.
121. There is no statutory duty relating to the special historic interest or setting of
registered historic parks and gardens within the Planning (Listed Buildings and
Conservation Areas) Act 1990). However, as a designated heritage asset,
Framework Paragraphs 194-196 are engaged in relation to development in, or in
the setting of, a registered park or garden.
122. There is no statutory duty relating to the setting of conservation areas within
the Planning (Listed Buildings and Conservation Areas) Act 1990) and, therefore
section 72(1) of the said Act is not engaged. However, adverse or beneficial
impacts upon conservation areas, including from development outside those
areas, are material considerations in the decision-making process.
123. The parties agree that the new World Heritage Site MPlan is a material
consideration.
124. The development proposals would not cause substantial harm to the
significance of designated heritage assets, including their setting, for the
purposes of the Framework.
125. Public benefits will accrue from the application scheme.
126. The existing building forming Waterman’s Arts Centre and Max Factor House
on the site is of poor quality.
127. The submitted 2017 ES, which includes the THVIA (and its view and
assessment methodologies) is adequate for the determination of the application,
meet the information requirements of the ES regulations and the ES is agreed to
be legally compliant.
128. The BPS scheme does not harm any heritage assets.
https://www.gov.uk/planning-inspectorate Page 18
The Case for the Applicant
The case for the Applicant, largely as expressed in closing submissions
129. The proposal before the SoS provides a unique opportunity to deliver a very
substantial part of the sustainable spatial strategy for the London Borough of
Hounslow. It unlocks the significant potential of two of the Borough’s strategic
allocations, delivers the strengthening and extending of the role of a failing town
centre and provides a strategically important and much enhanced cultural hub
and home for the area’s greatest cultural strategic asset.
130. It repairs and regenerates a gateway to Brentford in line with an allocation
which clearly calls for comprehensive and transformative change at a location
which at present offers little to the public in terms of townscape or historical
significance. The proposed development would help to complete a missing link in
the nationally important Thames Path. It is difficult to conceive of a more
comprehensive or weighty package of delivery on the strategic aims and
objectives of the development plan.
131. In addition to that Borough wide vehicle of development plan delivery must be
added the very substantial London-wide addition of the provision of nearly 300
new homes (including more than the reasonable maximum provision of
affordable housing) an addition which, by itself and alone, should attract very
substantial weight.
132. The weight to be given to the package of public benefits in this case means
that there is a clear and convincing case for the grant of planning permission.
133. The three years since the application was lodged have only seen the case for
delivery strengthen significantly. Brentford continues to fail to serve its district
centre function, a sustainability harm of the first order. The Watermans Art
Centre has been left to decay making it even less usable and two strategic
regeneration sites remain underused and/or vacant. Furthermore, the Covid
pandemic creates a pressing need for economic, cultural and regenerative change
even more compelling.
134. The London Plan recognises the importance of a strong and sustainable
hierarchy of town centres to the proper planning of the capital. They are
identified as the sustainable core locations for activity and cultural vitality and
viability, they are the hubs of connectivity and mixed use which are to be
developed and enhanced.47 The London Plan sets out a hierarchy of town centres
to be sustained and enhanced. Brentford is specifically identified as having the
need for, and physical and public transport capacity to accommodate, growth.
135. In the Local Plan, the first objective is Supporting our Town Centres48. One of
the main elements of such support is identified as the creation of new cultural
and leisure facilities. To this end, the spatial strategy key diagram identifies
Brentford Town Centre (as well as the application site) as a location to which
policies that encourage significant growth investment and regeneration apply.
47 London Plan Policy 2.15 CD B18
48 P30, CD B4
https://www.gov.uk/planning-inspectorate Page 19
136. At present the HLP accurately identifies Brentford as struggling to fulfil its
District Centre role and requiring regeneration. Policy TC4 is clear that the
cultural and entertainment offer is limited and dispersed with its greatest asset,
Watermans Arts Centre, being located outside the town centre boundary. Local
Plan Policies TC1 and TC2 therefore seek to ensure that the vitality and viability
of Brentford Town Centre is supported by promoting the development of
additional retail, service business and cultural and leisure uses that would
enhance its function.
137. Policy IMP2 and its text make it clear that the site allocations contained in the
Local Plan are the key delivery mechanism of the Plan. We are told that “It is
therefore crucial to the delivery of sustainable development throughout the plan
period that developments deliver the allocated uses”. The plan also provides that
support in principle will be given to proposals which accord with the identified site
allocation and which have regard to the context, constraints and other provisions
of the respective site allocations.
138. Strategic Allocation Site 11 identifies the Watermans Arts Centre as Brentford’s
greatest asset and its potential contribution as being of strategic importance. It
allocates the underused application site for residential development and re-
provision of the Arts Centre either on-site or within Brentford Town Centre. The
allocation and the HLP read as a whole make it clear that “a town centre location
would be more suitable and would leave this site available for residential…while
supporting the regeneration of Brentford Town Centre.” The allocation actively
requires transformative change through, among other things, the optimisation of
delivery of residential uses. This is not a site which the planning system has
identified as one appropriate for or so sensitive as to require a maintenance of
the status quo.
139. The development plan strategy therefore identifies a need to enhance
Brentford and, in particular, to drive the relocattsllion of its greatest asset in
support of the town centre first strategy if possible. The application site and its
development provide the only realistic means of achieving that aim and the HLP
and the allocation recognises that fact. In addition, the HLP recognises the
independent and freestanding need to regenerate the application site itself. The
site’s appearance is poor, unwelcoming and fails to make the most of its
Thameside location.
140. The BPS site is also a strategic allocation site. Were it not for its previous
institutional police use it would likely have been included within the defined town
centre. Its allocation for retail and residential uses reflects that fact, as does its
relationship with the other elements of the town centre, such as the main railway
station and the other facilities. It is a large underused, vacant site in clear need
of regeneration. It was earmarked in part for an educational use but that need
has now been met and the site is no longer needed for such uses. This is made
clear in the Report to Committee on the BPS site49.
141. It is accurately described as an ideal site for a new cultural hub which would
support, promote and enhance the operation of Brentford Town Centre. The
Theatres Trust, in particular, recognise its functional and locational advantages
for such a use. Importantly however, the site is not allocated or reserved for
49 CD D2
https://www.gov.uk/planning-inspectorate Page 20
such a use. There is no such site allocated or safeguarded for a relocation.
Moreover, the site is clearly a valuable town centre development site in its own
right. It is available as a donor site now only as a result of the present
coincidence of control of both sites. There is no guarantee that such a situation
would pertain going forward in the event of a refusal of permission in this case.
Indeed, in the absence of this permission, the development plan assumes its
delivery for other purposes. The site thus offers now, in the words of the
Theatres Trust, a once in a generation and truly unique moment of opportunity.
142. The weight to be given to delivery of the strategy for Brentford can only be
enhanced by the fact that there is no alternative route to achieving the same
confluence of benefits. There are no alternative town centre sites which even
come close to being appropriate to house the new arts centre. All of the
allocation sites have been considered and ruled out and the Council themselves
indicate that there is otherwise no alternative site upon which the provision can
be made. Even further weight should now be given to the benefit of the town
centre economic activity that would be generated during and in the lea of the
economic crises brought about by COVID.
143. The existing Watermans Arts Centre is a valued, busy, worthy and underused
resource. It houses many great productions, community projects and initiatives.
However, the building is a poor building of its time and is in the wrong place for
the most sustainable of strategies. The building’s ability to serve its purpose and
to be a sustainable home to the Arts Centre had been rapidly declining even as at
the date of the allocation which reflects the requirement to do something with
this site.
144. There is no future for the existing building. The policy allocation requires
relocation of the arts centre to the town centre or at the very least, its re-
provision on the existing site as part of an optimised mixed-use development that
can pay for it. Allowing the existing building, with its many drawbacks and risks,
to remain on the site would be contrary to the provisions of the HLP and its
strategy. The site would deteriorate with no guarantee of a lease being renewed,
the site and overall area would not be regenerated and the potential to deliver
the town centre preference would have been lost.
145. Since the allocation in 2015, the Arts Centre’s position has (as anticipated)
badly deteriorated. The auditorium and the cinema, two main elements of the
income generating facilities at the site, simply cannot be used together. The
external balcony is unsafe and has been permanently closed, there are leaks and
health and safety issues and no funds to deal with them.
146. The proposed replacement Arts Centre would be a modern, state of the art,
turn-key venue in the right location which is to be let by the Council at a
guaranteed pepper-corn rent for at least 25 years. It would be capable of
serving generations of Hounslow residents (and wider). It is a public benefit by
itself, of the highest order and should be given significant weight.
147. If permission is refused, the quality of the existing offer of the Arts Centre
would continue to decline. There is a realistic prospect of a landowner simply
opting to develop the Max Factor units under the existing prior approval, which
given their location would likely be very desirable and very profitable. As a result,
https://www.gov.uk/planning-inspectorate Page 21
there is a very significant degree of risk as to the future existence of the Arts
Centre in anything like its present form50.
148. The existing buildings on the site lack architectural good manners, they turn
their back on the park and remarkably, in large part, to the River. They provide a
hostile and perplexing element of a river path high up and going nowhere. The
office building of 2/3 storeys with its multiple dead ends and left-over spaces
must qualify as one of Hounslow’s worst pieces of design. As a Gateway to
Brentford High Street along one of the main out of London arterials, the
appearance of the site and its buildings is extremely poor.
149. In contrast, the proposal produces architectural solutions of very high quality.
The architect has modulated the nature of the massing and used colour subtly.
This ensures that the building would remain wholly subservient to Kew Palace in
the very few views where there would be any inter-visibility.
150. Extensive pre-application discussions were undertaken, and a myriad of design
iterations and efforts were made to accommodate change at this allocation site in
order to balance the delivery of benefits with the nature of impact on historic
significance. However, any meaningful loss of volume would render the proposal
wholly undeliverable on the agreed financial evidence.
151. Neither HE nor any of the other heritage bodies even begin to consider any
systematic assessment of quality of architecture as part of their assessment of
impact. Assessments of impact depend to a very large degree on the assessment
of the quality of the building being assessed. A poor-quality building in the round
is likely to have a different impact from a well-designed building.
152. The local planning authority design officers describe the proposals as very high
quality. The Greater London Authority (GLA) design team also praise the high
quality placemaking on display and find that the objectives of the London Plan,
which require exemplary architecture, are met. The applicant’s heritage witness
analyses the proposal in depth and also concludes that it is of the highest quality.
His evidence on such matters was considered carefully and, on this element,
remained completely unchallenged.
153. The proposals would make a valuable contribution to the riverside experience
in this area with the creation of a usable and attractive river walk, the creation of
new vistas of the Thames from the High Street and a cohesive riverside
townscape quarter that would benefit from natural surveillance. The proposal
responds to a strategic requirement for all riverine authorities to enhance,
upgrade and complete the Thames Path, which is a walking route of national
importance. It secures public access to the route in perpetuity. Where there is
visibility beyond the aits, the scheme would undoubtedly better reveal elements
of Kew Gardens for walkers on this stretch of the Middlesex bank.
154. London is in a housing crisis and should be treated as one housing market.
That housing market is completely failing to meet the Objectively Assessed Need
(OAN) for housing in the capital by tens of thousands of homes a year. Even
authorities which on the face of it have five-year housing land supply (like
50 Baker and Horne commented in chief and in answer to Inspector’s questions
https://www.gov.uk/planning-inspectorate Page 22
Hounslow), are failing to meet the OAN for their area because the HLP targets
failed to reflect the assessed need.
155. The SoS has taken the step of intervening in the London Plan to seek to
ensure massively increased delivery51.
156. When a planning system fails to meet the needs of its population for housing,
it fails in perhaps its most fundamental duty. Such failures are socially divisive,
they separate families (children can’t afford to live in the communities in which
they grew up), they engender unsustainable travel patterns, produce local labour
shortages and unfair markets and more. The ability of a capital city to produce
sufficient housing is central. There is an acute housing shortage right across
London including those boroughs which claim a five year housing land supply52.
157. For these reasons the contribution of these proposals on two allocated sites
which are integral parts of the housing land supply should be given substantial
weight. The housing crisis is worse for affordable housing. The crises in delivery
are more profound and affect the poorest and most vulnerable. As a result, the
provision or facilitation of affordable housing provision should be weighed even
more heavily in any balance.
158. The weight to the housing benefits provided and the economic activity that
comes with that is also enhanced given the present state of the economy and the
recession caused by the pandemic.
159. The determinative question in relation to heritage impact in this case is
whether there is any heritage harm and, if so, whether it is outweighed by the
largely unchallenged public benefits of the proposal. It is at heart a simple
exercise of planning judgment applying the principles set down in the
Framework.
160. It is important, given the operation of the Framework, that substantial harm is
given its proper meaning in all of its contexts. It is settled ground at this Inquiry
that the public benefit needed to outweigh any harm will depend upon the nature
and extent of the harm. The more significant the harm (if any) the more
significant will be the public benefit required, and conversely, the less substantial
the harm, the less substantial will be the public benefit needed to outweigh it.
161. In this case all parties accept that substantial harm is not caused and that this
is not a case where there is substantial harm or total loss of significance. This
must be borne in mind when seeking to characterise the actual impact in the less
than substantial harm category.
162. Harm is a continuum. The sub-categories of harm identified in the Framework
are substantial harm (or total loss of significance) and less than substantial harm.
Both sub-categories are part of the same continuum, but substantial harm gives
rise to a separate test. Where less than substantial harm arises, it is necessary
to consider where within a wide-ranging spectrum the harm falls.
51 CD B20
52 See Citroen Decision, CD A26
https://www.gov.uk/planning-inspectorate Page 23
163. The Courts have defined substantial harm in the context of its use in the
Framework in the case of Bedford53. It is common ground that the meaning of
the words in development plans and the Framework are matters of law and not
judgment. This Inquiry is bound by that ruling.
164. It is also accepted in the Bedford case, that part of the judgment which binds
us is that when identifying substantial harm “one was looking for an impact which
would have such a serious impact on the significance of the asset that its
significance was either vitiated altogether or very much reduced.” To put it
another way, substantial harm would be caused if “very much if not all of the
significance of the asset was drained away”. This is a deliberately high test which
the PPG tells us will not be likely to be reached very often. The PPG and the Court
are thus consistent and if it were otherwise then the Court would prevail
anyway54. Bedford must be applied.
165. In order to understand whether harm alleged is close to, or anywhere close to
substantial harm, the Bedford meaning of substantial harm is still the only one
that can be used as the relevant benchmark. This is particularly important in
cases where a specific allegation seeks, as here, to identify harm higher up the
spectrum of less than substantial harm, making it close to or closer to substantial
harm. To put it another way, you have to understand how much less than
substantial your allegation of harm is to understand where you are on the
spectrum of less than substantial harm, especially at the higher end.
166. Further the approach requires a consideration of both the extent of significance
which would be drained away by the impact of the proposal and a consideration
of how this weighs against the significance of the asset as a whole and what has
not been drained away. Otherwise, it would be impossible to judge whether or
not very much if not all of the significance has been drained away or close or
anywhere close to it. It would be impossible to judge whether you were
anywhere towards the entire significance of the asset being vitiated or very much
reduced.
167. An assertion that setting is important to an asset does not translate into a
proposition that all elements of setting are important nor crucially that all
elements of setting are of equal importance. That would be contrary to policy in
the Framework which reminds us in relation to WHS in particular that not all
elements necessarily contribute to significance. It follows that not all elements
(including elements of setting) contribute equally either.
168. Second and critically, it is also inappropriate, applying Bedford, to overstate
the potential harm that is truly in scope to be drained from an asset by reference
to an impact on part of a setting only. Put simply, none of the assets relevant to
a consideration of impact in this case rely on the relevant elements of their
setting for much if not all of their significance or anywhere remotely approaching
that.
169. One might theoretically be able to construct limited setting impacts which are
capable of giving rise to substantial harm or close or anywhere close to such
harm. But here in Kew, it cannot be the case that any impact to setting, (even
53 CD A22
54 See conclusions in Chiswick Curve, Chapter 12 IR, CD A21
https://www.gov.uk/planning-inspectorate Page 24
where setting might be important) automatically translates into an impact at the
high or upper end of less than substantial harm. This is particularly the case
where so much, indeed the vast majority of the relevant assets’ significance lies
in their intrinsic fabric and surroundings.
170. Of course, if harm is found, then the weight to the harm found should not be
reduced just because it affects one part of a large WHS and in assessing the
weight to be given to the harm, it is that which is lost which falls to be weighed
as part of any balance. But, prior to that exercise, there needs to be a proper
and proportionate judgment as to whether there is harm, which sub-category it
falls into and, in cases such as this, then a judgment as to how much less than
substantial any harm is in the less than substantial category, applying Bedford
and having regard to the extent of significance drained away (and by necessary
implication retained) by the proposal.
171. It is truly unusual to have a decision which grapples with most of the same
issues which are at large in the circumstances of the present case, albeit from a
different location and a location with no inter-visibility of impact55. In these
circumstances, the decision maker is obliged by law to pay careful attention to
both the method by which the Citroen decision was made and to the conclusions
that were reached in relation to the main controversial issues there. Every case
falls to be determined on its own merits but there is a public interest in
consistency of decision making and of consistency of approach to similar issues
and contexts. It is also the case that as a matter of law decisions of the SoS are
potentially important material considerations and the more recent and more
relevant they are, the more material they become.
172. On any fair, objective, and balanced approach, if the degree of erosion to
significance of the Orangery and the WHS is slight and the impact thus moderate
in Citroen, then the position can only conceivably and markedly be less than that
in this Great Lawn context in relation to the current application. This is because:
i) The application proposal is only seen at all from a very limited part of
the Great Lawn and only then in the depths of winter. Both these
factors were important in the Inspector’s conclusions in Citroen: they
should be important factors here too. But importantly the visibility of
the proposals in summer and in winter are much reduced in
comparison to the Citroen building.
ii) It is wrong to assert that the Citroen impact was limited to just one
viewpoint. Viewpoint 30 was chosen as a representative view. It is
clear from a simple examination of view 30 (and from any site visit
with view 30 in mind56) that the nature and scope of the visibility of
the much taller building would, as the Inspector pointed out, be wider
than just a single view.
iii) The Citroen building is very tall and rises directly above the roofscape
of the Orangery: a point which was highlighted as particularly
unfortunate by HE at the time of the last Inquiry. Six or Seven storeys
of the tall building which itself was found to be not of high architectural
quality rise immediately above the Palladian and ordered façade.
55 Citroen and the Chiswick Curve
56 Tavernor rebuttal, p4
https://www.gov.uk/planning-inspectorate Page 25
iv) In contrast, in all views of the proposed development the building sits
deliberately well below Kew Palace. It sits considerably below the
parapet and roof levels of the Palace and does not challenge its
dominance: a dominance in the view which is possibly as robust and
sturdy as any in the country as a result of its red brickwork which is
regularly and ostentatiously lime washed (in brick red lime from Rose
of Jericho) to ensure its presence is maintained.
v) The proposed building is clearly read where seen at all as subservient
to Kew Palace and as part of the Brentford Riverside on the opposite
side of the Thames.
vi) It has been designed with the involvement of the Council’s
conservation team to be a recessive building in these views. Its tonal
qualities and the breaking down of its impacts by careful articulation
and faceting would all add to this recessive character in contrast to the
red, bold and limewashed Palace. Particular attention was taken by the
Council to understand that such qualities could be seen and
understood from the viewpoints at issue (Distance view 16: 218m,
view 18: 136m, view 19: 119m).
vii) In addition to being well below the parapet the proposed development
would also sit well off to the left of Kew Palace in all views from the
Great Lawn. This emphasises the absence of dominance referred to
above and also the clear lack of direct visual relationship with the
Palace.
viii) In view 16, the proposal would not be appreciated at all in
summer and in winter would be seen well to the left of the Kew Eye. It
would not compete with the Palace in any meaningful way.
ix) In view 17 and 18, the proposal would not be seen and would cause no
harm but as Mr Baker reminded us57, in view 18, Lighterage Court
(which was granted permission following an appeal in which the
Inspector found its position acceptable) is already seen on the
Middlesex bank of the Thames, along with other elements of Brentford
beyond, immediately adjacent to Kew Palace and at the same apparent
height as the proposal in view 19. Lighterage Court (and the other
buildings) form part of the urban backdrop of Brentford and is not
identified as a detractor in any relevant document58. Neither does HE
assert here, or elsewhere, that it causes harm. Its allegation of a high
end of less than substantial harm by reason of a setting impact in this
case is as a result, simply unsustainable.
x) As a matter of fact, in these views, Kew Palace did not historically
stand in splendid isolation from other buildings at all. In fact, there
were once a variety of buildings to the west of the Palace to house
servants”. These were an essential part of the royal occupation and
were only removed in the C20th when the Palace fell vacant and the
royals had long gone59. Those subservient buildings sat lower than the
Palace but were physically attached and clearly formed part of its
57 CD 29, section 7, para. 7.181
58 See Detractors at D12, CD A25)
59 See Tavernor proof at 3.54 and Fig 3-27 and document (ID6) provided by Mr Drury dated
1880 for images
https://www.gov.uk/planning-inspectorate Page 26
character to the west. It was their removal in the C20th which opened
up the potential for views from the Great Lawn towards Brentford,
particularly in View 18.
xi) None of these Great Lawn Views of the Palace are historic designed
views in the way contended by HE in relation to the view of the
Orangery. It is true that the revealing of the Palace by the removal of
the truly planned White House and its later unfinished crenelated
castle has in an accidental manner revealed Kew Palace and its
relationship with the Great Lawn, just as the removal of the servants
quarters and the stables has in part revealed parts of the Middlesex
Bank.
xii) But for the reasons outlined above, this accidental, non-designed
relationship is not harmed by the proposal at all. Kew Palace was not
built to be part of the Gardens nor was it designed to be seen in
isolation from any other buildings as part of any great landscape plan
by Chambers or any of the other great landscape designers who have
helped develop the Gardens. Its present relationship with the Great
Lawn and its evolution by the removal of the servants’ quarters can
still be fully appreciated.
173. Because of the matters referred to above, the applicant’s heritage witness
identifies that the impact of the proposal on the listed building and on the WHS is
overall left unharmed. He finds no meaningful loss of significance overall or harm
to OUV. He identifies one fleeting negative impact in one view (view 19) in one
season, compares it to an existing view where Brentford can, following the
demolition of the servants quarters, also be seen (View 18) and then concludes
there is no overall loss of significance for the assets as a whole.
174. Alternatively, he says, and for the same broad reasons, that if there is some
harm in this context, it cannot reasonably be anything than at the lower end of
less than substantial. All of the relevant assets intrinsic significance is wholly left
untouched, as are almost all aspects of its setting. Additionally, the setting that is
altered to a limited degree in winter is little or no different to that part of the
setting that already exists and characterises the existing relationship between
Lighterage Court, urban Brentford and the Gardens. Whatever view one takes on
this issue, it is clear that public benefits would outweigh any harm.
175. The part of the setting comprising the appeal site, does not form part of a
designated asset at all. It is not unlike other parts of the area outside the
Gardens but which have been included within a Conservation Area.
176. The site falls outside the WHS Buffer Zone boundary. This is not unimportant
to a consideration of its impact on significance. The Buffer Zone is not a
meaningless object or designation. It is there for a purpose. According to the
Operational Guidelines (OG)60, a buffer zone is an area surrounding the
nominated property which “should include the immediate setting of the
nominated property, important views and other areas or attributes that are
functionally important as a support to the property and its protection. The area
should be determined in each case through appropriate mechanisms”. No
60 CD A17
https://www.gov.uk/planning-inspectorate Page 27
alteration to the Buffer Zone was thought appropriate through the new MPlan
process and none is planned nor envisaged.
177. In this case, the Buffer Zone has been very carefully drawn deliberately to
exclude the Middlesex Bank of the Thames at Brentford. On the other hand, the
Buffer Zone has been deliberately drawn to include all of Syon Park across the
River to the West of the Gardens and the whole of the Old Deer Park on the
Surrey side to the south61.
178. Paras 1.1-1.2 of the MPlan reflect the advice of the OG and explains that the
Buffer Zone has been specifically drawn to encompass those areas with strong
historical relationships to the Gardens (Old Deer Park, Syon Park and Kew
Green), some locations which are important to the protection of significant views
(e.g Syon Park) and areas that have a bearing on the character and setting of
the gardens (the River Thames and its islands between Ferry Gate and Kew
Bridge and approaches to the Gardens from the East. The exclusion of the
application site and the rest of the Brentford Middlesex Bank is therefore not only
deliberate but also reflects the fact that it does not share these characteristics.
179. All of this is relevant to a consideration of how much historic significance
resides in this part of the setting and is therefore truly in scope to be harmed by
development of the allocated site. None of this means that development at this
location is not theoretically capable of causing harm. But it does very significantly
affect the weight to be given to a setting impact if the setting serves none of
these functions in a meaningful way.
180. The existing modern configuration and use of the Middlesex Bank of the
Thames at the location of this proposed development does not form an important
part of the historic setting of the Dutch House or the WHS. It adds little
significance to the present Kew Palace or the WHS. It is, as all of the evidence
establishes, a modern invention wrought by the planners of the 1970s. It has left
us with a low slung poorly designed building of no merit and a rather featureless
park of municipal design.
181. Brentford is a thriving riverine urban settlement and would, on all of the
evidence, have been in existence well before the Dutch House. Indeed, Brentford
as a busy settlement pre-dates Roman times and the foundation of even London
itself. It is the river and the riverbanks which, along with the High Street, were
the focus of the built environment on the busy Middlesex Bank. At all material
times it was a thriving urban settlement which owed its livelihood, and its
urbanity to the Thames and to the coaching trade. At all material times it and the
application site would have been apparent from Kew above and beyond the likely
yearly pollarded withies on the aits.
182. In terms of scale, use and occupation all the evidence suggests that the
historic character of this bank of the Thames would have been busy, extensive,
and highly visible. The Prospect62, an early painting of the riverbanks and
buildings beyond, is just a snapshot in time. But it is notoriously accurate along
the entire length of the Thames and shows here the full extent of the Brentford
frontage built up in the early C19th. From beyond the withied aits, Brentford is a
61 See plan at p6 ManPlan, CD 25)
62 Kathy Clark, Appendix 2
https://www.gov.uk/planning-inspectorate Page 28
mature settlement, many streets deep and developed densely almost all the way
from where Lighterage Court is now to Kew Bridge. The Prospect illustrates even
then, buildings of discernibly different ages, a depth of industry, mills and
basketries as well as very substantial breweries, inns, houses, lodgings and other
buildings. It is not bucolic rurality. It is not pastoral, it is not even semi-rural and
nor would it have been for centuries before.
183. Much of west London’s town gas was produced in Brentford from the late
C17th through to the C20th this, along with other industry and boatyards on the
entire bank of the Thames, made for very non-bucolic relationships across the
Thames. The gas works were huge, wide ranging and unmissable. However, they
were authentic from an historic point of view. They carried on the relationship
between urban Brentford which would have existed for centuries.
184. The Dutch House was built where it was not because of the bucolic and
picturesque Brentford on the Middlesex Bank but because its location gave access
to the other Royal Estates hereabout to which it was thought politically important
to be close. It is not surprising therefore, insofar as there was a relationship with
what lay north, that the point of emphasis and relationship with the River was
the place of arrival and departure. A tight avenue of trees framed the view to and
from the house to the river. The relationship with Brentford beyond the aits was
not a key or planned part of the setting and nor in truth did it ever become one.
That is why the Buffer Zone deliberately excludes it while at the same time
including the aits and huge tract of the Middlesex Bank further West.
185. In addition, the functional relationship with the Thames, much less the
opposite bank beyond the aits, significantly reduced very early on. The
embankment of the Thames would have made transport and arrival by boat
impossible and by the time of the Prospect at the very least, Kew Palace was
clearly functionally separated by a sturdy wall, a wall which remains in place
today, now fortified by security paraphernalia. There was a reduced relationship
with the river and no meaningful relationship with the area beyond the aits.
186. The appeal site’s present state is the least authentic part of any relationship
with this Middlesex bank of the Thames beyond the aits. It is not redolent of its
past or evoking memories of what the Princesses might have seen in any
meaningful way at all; rather, it is a very short term departure from Brentford’s
long and busy relationship with the north bank of the Thames with the site now
underdeveloped but allocated for a strategic development. Indeed, strategic
development which is required to optimise housing delivery and effect a
transformative alteration to the area overall. In fact, Brentford’s existence
across the entire bank facing Kew Palace would have been its authentic setting.
187. As the MPlan points out, there are two River Thames characters at play here.
“The WHS intersects with the Thames along its western and northern edges and
has quite a different relationship with the river in these two distinct areas. To the
north and northwest of Kew’s riverbanks, the urban development of Brentford is
close by on the other side of the River. To the west, views open out to the trees,
grassland, natural beaches and historic buildings of Syon House.”63 The area in
and around Brentford is very different in character to the Syon House or Old Deer
Park Thames which is truly Arcadian in terms of design, form and its history.
63 CD A25, D8(v), p129
https://www.gov.uk/planning-inspectorate Page 29
188. None of the views over Brentford are identified in the historic formal or
designated views and vistas64; this is consistent with the site and the entire
Middlesex Bank being excluded from the Buffer Zone too. It is true that the views
from the upper stories of Kew Palace are included in the Views Out65. However,
that is merely a factual explanation of where views out can be gained and the
briefest of examinations establishes that these are not meant to be historic or
necessarily important to setting.
189. It is stretching credibility to argue that the site now, or ever, forms a very
important and highly sensitive element of the historic setting of Kew Palace or
the Gardens. By any reasonable measure, this element of the setting accounts
for very little of the massive significance of the Palace and hence the OUV of the
Gardens. It follows that the degree of significance of the Palace or the WHS even
in scope to be impacted by this proposal is not large, such that even
disagreements about the extent of impact cannot conceivably give rise to
anything close to substantial harm to the assets as a whole. It is contended that
no harm would result at all.
190. It is wrong as a matter of principle simply to say impacts which are not at the
higher end of less than substantial harm can somehow be added together to
create a higher category or sub-category of harm. That is not how the system
works. What is necessary is an overall consideration of the harm (if any) and the
significance that is drained away and then, in cases such as this, an indication of
how much less than substantial that less than substantial harm is on the scale.
191. In the context of the nature, scale and geographic extent of the other
detractors in this case, any additional cumulative impact can only ever on the
facts of this case be negligible or minimal. There can be no reason, consistent
with the approach adopted in Citroen to refuse the application based on
cumulative impact with other identified detractors or with the recently permitted
Citroen proposal itself.
192. The Kew Palace Flats and Cottages featured less prominently in the case
advanced at this Inquiry. Their significance is completely untouched by the
proposed development of an allocated site on the other bank of the Thames.
Wider setting plays very little, if any, part in their significance or an
understanding of their overall role. The appeal site plays effectively no role in
their significance. The development cannot drain any meaningful significance
from these assets. Whatever the reasonably analysed level of impact is here it
cannot come close to reaching levels of harm which should put the delivery of the
public benefits of this proposal at risk. The same must be said for the impact on
the Kew Green Conservation Area.
193. Even with the Council’s finding of mid-level harm, the only bodies to date with
the statutory remit or expertise to determine the Framework paragraph 196
balance have clearly and unambiguously concluded, (while fully understanding
the weight to be given to such matters) that the unique basket of public benefits
associated with this proposal outweighs that harm and should result in a grant of
planning permission. There is no evidence in this case that seriously seeks to
challenge the existence of, or the weight to be given to, the individual public
64 CD A25, Figure 4: Historic or designated views or vistas.
65 CD A25, Figure 5
https://www.gov.uk/planning-inspectorate Page 30
benefits identified, including the delivery of key components of the overall
development strategy for the whole of Brentford.
194. If a proposal leaves a designated heritage asset unharmed, and otherwise
complies with the development plan, then it should be granted planning
permission without delay. On the applicant’s case, that is the position which
should be adopted by the SoS in this case.
195. Even if there is a finding of heritage harm, then the Framework deliberately
ensures that the existence of public benefits which outweigh less than substantial
harms are capable of constituting the clear and convincing justification needed to
allow permission to be granted having regard to the statutory tests and caselaw.
196. In this case the relevant development plan policy relating to heritage matters
contains the same balancing provision as national policy. Thus, if harm is found,
but public benefits on a consideration of the evidence outweigh that harm, then
the proposal (all other things being equal) fully complies with the development
plan as well as with national guidance.
197. In this case, an extraordinary package of public benefits is available and at this
moment in time alone. They include fewer but of the same broad order of new
homes that swung the public benefit in favour of grant in the Citroen case.
However, they are added to by wider public benefits which render the important
housing gains small in comparison. These include but are not limited to the
delivery of a key element of a town centre first spatial strategy. This supports a
new Arts Centre and Cultural Hub to replace one which is at best at serious risk,
the regeneration of the gateway to Brentford with architecture of the highest
order in line with its allocation and the delivery of housing and a missing part of
the strategic Thames path. The Framework was designed to deliver and not to
thwart this type of contribution.
The Case for the Council
The case for the Council, largely as expressed in closing submissions
198. As an authority who operate in a part of London rich in heritage assets, LBH
has long recognised that growth and the historic environment are compatible.
Were this not the case, this part of London would simply stagnate.
199. LBH has also long recognised that there can be no prohibition on harm to the
historic environment66, by acknowledging as a matter of policy that where a
development will lead to less than substantial harm to the significance of a
designated heritage asset, the harm is to be weighed against the public benefits
of the proposal. This reflects the position of the government as set out in the
Framework, namely that harm must be weighed against benefits67.
200. Even where heritage assets are those of the highest significance such as World
Heritage Sites68, there are times when that harm will be outweighed by public
66 Policy CC4(l) at CD.B4
67 NPPF paras 195 and 196 at CD.A1
68 NPPF para 184 at CD.A1
https://www.gov.uk/planning-inspectorate Page 31
benefits – the recommendation of the Inspector and the decision of the SoS in
the Citroen case69 is the most recent and obvious example of this.
201. The proposed development in the current case falls within the meaning of ‘tall
buildings’, but unlike both the Chiswick Curve and Citroen schemes the
application scheme does not propose towers. The buildings proposed in this case
rise to a relatively modest 8 storeys, somewhat lower than the 32 storey tower
proposed at the Chiswick roundabout and the (up to) 18 storey towers at the
Citroen site. Nonetheless, like those proposals, the application scheme will have
an impact on Kew Gardens.
202. The scheme, which fronts on to Brentford High Street, and backs on to the
River Thames, would provide 193 dwellings with ancillary retail/café use, but is in
effect tied to the scheme for the redevelopment of the BPS site, also known as
Half Acre. The Arts Centre at the application site would be relocated to Half Acre
which would also provide a further 105 new dwellings. Across the two sites, there
would be a provision of 20% affordable homes, which it is accepted represents
(or exceeds) the maximum viable amount. The dated and out-of-centre
Watermans Arts Centre would be replaced by a new and exciting cultural hub in
the town centre, a key strategic objective for the borough.
203. In this case, the moderate level of harm to the significance of heritage assets
would be outweighed by a compelling range of public benefits. This proposal
constitutes a key ingredient for the regeneration of Brentford.
204. The statutory test for determination requires proposals to be determined in
accordance with the development plan unless material considerations indicate
otherwise. Accordance with the development plan means the development plan
considered as a whole. It has long been recognised by the courts70 that different
policies can pull in different directions, and the correct approach does not require
the decision-maker to ensure that the development complies with each and every
one of them.
205. In this case, the proposed scheme is compliant with the development plan as a
whole, and the statutory presumption in favour of the development plan applies.
There are no material considerations (including the Framework) which justify a
departure from the development plan.
206. A most fundamental proposition in the planning system is that the system
should be genuinely plan-led71.
207. Policy SC1 in the HLP sets out the Council’s policy commitment to maximise
the supply of housing in the borough to meet housing need, and this sits
alongside the equivalent London Plan policy 3.3.
208. LBH are committed in policy to supporting the borough’s town centres,
including Brentford, which is recognised as a district centre72, noting in the text
to Policy TC2 that Brentford town centre underperforms and requires
69 CD.A26
70 See, for example, Corbett v Cornwall Council [2020] EWCA Civ 508
71 NPPF para 15 at CD.A1
72 TC1(a) of Hounslow Local Plan at CD.B4
https://www.gov.uk/planning-inspectorate Page 32
regeneration73. Thus, this policy itself promotes the regeneration of Brentford,
including an improvement in the cultural provision74 and in specific policy terms:
“Promoting the relocation of Watermans Arts Centre into Brentford town
centre”75.
209. Policy TC4 encourages proposals that contribute to the vitality and viability of
the town centre76, and the explanatory text to the policy again explicitly refers to
the Arts Centre in the context of Brentford: “The leisure, cultural and
entertainment offer is also limited and dispersed, with its greatest asset,
Watermans Arts Centre, being located outside the town centre boundary“77.
210. LBH’s town centre policies are to be read alongside the policies for Community
Infrastructure, which set out the policy expectation to locate new community
facilities within or on the edge of town centres78. In respect of culture and
leisure facilities specifically, they seek to support the improvement and upgrade
of existing facilities79 and to allocate sites to deliver new facilities, where
necessary, to more appropriate locations80.
211. The policies for the implementation of LBH’s strategy, in particular Policy IMP2,
treat the use of allocations as a key delivery mechanism for delivering the
strategy, and the development plan identifies the application site as an allocated
site (Site 11)81. The allocation is for a mixed use described as “Residential and
re-provision of the Arts Centre either on-site or within Brentford Town Centre.
The site should be developed comprehensively in order to optimise the residential
capacity of the site as a whole. This will help achieve regeneration of the overall
area and avoid the sterilisation of individual elements of the site“. The
justification for the allocation identified the strategic importance of Watermans
Arts Centre and that a town centre location would be more suitable.
212. It is noted that although the emerging allocations carry limited weight at this
stage having yet to undergo examination, the application site allocation is carried
over into proposed Site 11082, which identifies a minimum quantum of 150
residential units, that the impacts on the Kew WHS need to be addressed at the
application stage (as they are being assessed as part of this application), and
that the height should enhance the character of the area (which the Council
planning witness confirmed the proposal would do, since the proposal would
enhance the character of the area local to the site83) whilst optimising density.
The BPS site is identified in the proposed allocations for a mixed use, including
residential and an arts centre. Thus, the proposal is consistent with adopted and
emerging allocations.
73 Text at p66 TC2 at CD.B4
74 TC2(b) at CD.B4
75 TC2 ‘Supporting facts’ at p67 of CD.B4
76 TC4(f) at p71 of CD.B4
77 Supporting facts to TC4 at CD.B4
78 Policy CI1(e) at CD.B4
79 Policy CI4(b) at CD.B4
80 Policy CI4(c) at CD.B4
81 Site 11 at CD.B4
82 SB Supplementary Proof at Appendix C
83 SB EiC
https://www.gov.uk/planning-inspectorate Page 33
213. In addition to the key policies of the HLP in respect of town centres and
cultural facilities, the relevant London Plan policies carry the same thrust. Thus,
the Town Centre Policy 2.1584 is clear that decisions should sustain and enhance
the vitality and viability of town centres, whilst Policy 4.7 sets out that new
cultural facilities should be directed towards town centres85.
214. LBH’s heritage policy is provided at policy CC4, which whilst recognising the
importance of conservation and enhancement of heritage assets, incorporates
into local policy the national policy requirement for less than substantial harm to
be weighed against the public benefits of the proposal86. In a London Plan
context, although 7.8 and 7.10 do not incorporate a balancing exercise, the tall
buildings Policy 7.7 does require a balancing (at E). It is clear from the approach
of the Inspector at the Citroen appeal that looked at as a whole, the heritage
policies in the development plan require a balancing exercise to be carried out87,
and this approach was clearly and explicitly followed by the SoS88. In short, the
heritage policies of the development plan looked at overall require a balancing
exercise to be carried out against public benefits, even if a proposal is in conflict
with individual policies which do not incorporate that balance.
215. In respect of the emerging London Plan, LBH take the view that the emerging
heritage policies are undiluted by the SoS’s intervention relating to housing
numbers, and these policies can be given significant weight at this stage89. Whilst
IPLP90 policies HC1 and HC2 do not incorporate a balance (and so in this case
would be conflicted as they were at Citroen91), Policy D9C(d) does incorporate a
balance, a point emphasised by the Citroen Inspector92.
216. The application scheme is consistent with and supported by the policies of both
Hounslow and London. It is noted that the Mayor, advised of LBH’s resolution to
grant permission, explicitly declined to intervene and expressed his strong
support for the proposed mixed use and for the re-provision of a larger Arts
Centre in a town centre location93.
217. The relevant development plan policies which support the scheme are reflected
in the government’s national planning policies, which clearly articulate the
government’s position that the supply of homes requires significant boosting94.
Further, that significant weight should be placed on the need to support economic
growth95, that planning policies and decisions should support the role that town
centres play at the heart of communities by taking a positive approach to their
growth96, that planning policies and decisions should plan positively for the
84 London Plan Policy 2.15 at CD.B18
85 London Plan Policy 4.7 at CD.B18
86 CC4(l) at CD.B4
87 Citroen report A26 at 15.84 – 15.87
88 Citroen decision A26 paras 29-32
89 SB Proof 5.67
90 Intend to Publish version of London Plan CD.B16
91 Citroen report CD.A26 at 15.89
92 Citroen report CD.A26 at 3.29
93 GLA Stage 2 Report CD.C31
94 NPPF CD.A1 at para 59
95 NPPF CD.A1 at para 80
96 NPPF CD.A1 at para 85
https://www.gov.uk/planning-inspectorate Page 34
provision and use of cultural facilities and delivering strategies for cultural well-
being97, that planning policies and decisions should promote an effective use of
land98 and that where proposals would result in harm to the significance of
heritage assets the harm should be weighed against the public benefits99.
218. The significance of the following heritage assets would be harmed in this case:
Kew Palace, and thereby Kew WHS, Kew Gardens CA, and Kew RPG; and Kew
Green CA. LBH do not accept the allegation by HE that Kew Palace Flats (Royal
Kitchens) and/or Cottages would also be harmed.
219. Heritage assets are an irreplaceable resource and World Heritage Sites are
recognised to be of Outstanding Universal Value100.
220. Kew Gardens was inscribed into the World Heritage List by UNESCO in 2003,
and a retrospective Statement of OUV was adopted by UNESCO in 2010101. In
respect of the international obligations arising, HRP acknowledged102 that “the
Government’s duty of care under the World Heritage Convention, including
cognisance of the ICOMOS HIA guidance, can indeed be met through the
operation of the NPPF”.
221. When assessing harm in a heritage context, what matters is harm to the
significance of the asset (or, in the case of a WHS, harm to the OUV), which
means the value of a heritage asset to this and future generations because of its
heritage interest103.
222. Within the Gardens, Kew Palace is a Grade I listed building, a red brick
mansion built in 1631 which became a royal residence in 1728, although the role
of the palace in royal life declined after 1818104. The 2020 Kew Gardens MPlan
describes the Palace as “an imposing and highly significant royal building […]
which forms part of the experience of the Gardens as well as being key to
understanding its history”105. It was described by the Chiswick Curve Inspector as
“one of the most important parts of the iconic architectural legacy of the gardens
and a fundamental constituent of the designed landscape”106. The relevant
attributes of the OUV are a rich and diverse historic cultural landscape providing
a palimpsest of landscape design; and an iconic architectural legacy.
223. This proposal would cause no direct harm to Kew Palace (or any other heritage
asset): the fabric would be untouched. Any harm would arise by harm to the
setting of the Palace. It is important to remember that setting is not itself a
heritage asset. Its importance lies in what it contributes to the significance of the
relevant heritage asset or the ability to appreciate that significance.
97 NPPF CD.A1 at para 92
98 NPPF CD.A1 at para 117
99 NPPF CD.A1 at paras 195 and 196
100 NPPF para 184 at CD.A1
101 CD.A8
102 HRP Closing at para 18
103 Glossary to NPPF, CD.A1
104 Croft Proof 5.7.2 and 5.7.3
105 WHS MPlan 2020-2025 at Appendix D9
106 Chiswick Curve report para 12.110 at CD.A21
https://www.gov.uk/planning-inspectorate Page 35
224. LBH have always been clear that although the application site is not within the
buffer zone for the WHS, it is within the setting of the Palace and thereby the
WHS. The NPPF defines the setting of a heritage asset as: “The surroundings in
which a heritage asset is experienced. Its extent is not fixed and may change as
the asset and its surroundings evolve. Elements of a setting may make a positive
or negative contribution to the significance of an asset, may affect the ability to
appreciate that significance or may be neutral“107.
225. The position of LBH is that setting contributes to the OUV and significance,
allowing the appreciation of a royal retreat in a designed landscape108. As to the
setting of Kew Palace specifically, the evidence of LBH is that it makes an
important contribution to the significance because it allows the Palace to be seen
through the same lens as earlier patrons and connect the building to its royal
past, appreciated in its arcadian setting within the designed landscape109.
226. The key views for an assessment of the impact are agreed between the
applicant, LBH and HE to be Viewpoints 16-21110 within the submitted THVIA111.
In views towards the Palace from the Great Lawn (Viewpoints 16 and 19
particularly), there would be very limited summer views and a more exposed
view during winter. Although LBH take the view that in views from the Great
Lawn the ability to appreciate the significance of the Palace and two of the
attributes of OUV would be harmed, this would be tempered by the appearance
of the development as lower than, subservient to, and set off to the side of, the
Palace.
227. Whilst of course every scheme must be assessed on its own merits, the
Council’s heritage witness drew a clear distinction between the harm in this case
and the harm in the Citroen case, where that scheme rose prominently
immediately above the roofline of the Orangery, with around six storeys in view
above the Grade I Orangery.
228. In addition to harm caused in views towards the Palace, it is important also to
consider views from the rear of the Palace towards the proposed buildings. The
Committee Report referred to the proposed development as “a wall” this was not
carried through into written evidence and in oral evidence the Council’s heritage
witness explained that that description was too “harsh” as it failed to
acknowledge the articulation of the buildings.
229. The Council’s heritage witness explained that, particularly in winter views from
Viewpoint 20, there would be harm to the riverside environment of the Palace
which contributes to the Arcadian setting. However, once again the level of harm
would be tempered. First, because “some Arcadian parts of the Thames are more
Arcadian than others”, and no party suggested that this part of the Thames was
prime arcadia. Second, because views of the river from the Palace itself are not
possible from ground level. Third, because views from the upper floors of the
Palace are across a 1969 garden. Fourth, because the riverside environment
107 Glossary to NPPF, CD.A1
108 SL Proof at 4.12
109 SL Proof at 4.42
110 SOCG para 8 at CD.F4
111 CD.C14
https://www.gov.uk/planning-inspectorate Page 36
cannot be divorced from the historic and current relationship with the other side
of the river. The opposite side is the home of urban Brentford.
230. This is evident in the historic Roque map112 in 1741 and in the Samuel Leigh
panorama113 of 1824, the year which also marked the arrival of the gasworks on
the Middlesex bank, which remained until 1927. The Council’s heritage witness
was unequivocal114 that the view historically and today from the rear of Kew
Palace was towards urban Brentford, and Historic England’s heritage witness
agreed115 that the Leigh panorama depicted “busy thriving industrial Brentford”.
231. It has always been LBH’s case that the setting (and significance) of the Palace
(and thereby the WHS) in views from the rear would be harmed, but the harm
has to be measured.
232. The Council’s heritage witness incorporated cumulative harm into her
assessment, having regard in particular to the principal detractors, most notably
the Kew Eye and the Haverfield Towers. In reaching her conclusions, she made
clear in written evidence that her overall assessment of cumulative impact did
not change to any significant degree as a result of the Citroen scheme116.
233. Substantial harm, in the language of the Framework, is a high test and will not
often arise117, and the courts have provided clear guidance in the Bedford118
judgement. The consequences of Bedford are twofold. First, it guides the
decision-maker in distinguishing between substantial harm and less than
substantial harm. But second, on a spectrum of less than substantial harm, it is
at least capable of assisting the decision-maker in deciding whether or not the
level of harm is at the upper register of less than substantial harm. To put it
another way, it enables the decision-maker to ask “does the proposal come close
to very much if not all of the significance of the asset being drained away?”
234. The Council’s heritage witness, calibrated the harm to Kew Palace and the OUV
of Kew as falling in the middle bracket of less than substantial harm119. Having
heard an exchange in oral evidence during XX of HE120 as to the meaning of
moderate (which HE accepted to mean middle or average), the Council’s heritage
witness clarified in her oral evidence121 that her “middle bracket” can be treated
as interchangeable with the term “moderate". In XX122 she indicated that this
might stretch to a little more than moderate but clarified that this still left her
“very comfortably in the middle bracket”123. She was very clear that her
conclusion was compatible and consistent with the conclusion of the Inspector in
the Citroen case.
112 HE Appendix 1.2
113 HE Appendix 2.2
114 SL EiC
115 KC XX by applicant
116 SL Supplementary Proof at 2.6
117 PPG 18a-018-20190723
118 CD.A22
119 SL Proof at 6.2
120 KC XX by applicant
121 SL EiC
122 SL XX by HE
123 SL Re-ex
https://www.gov.uk/planning-inspectorate Page 37
235. The Kew Palace Flats (or Royal Kitchens) were originally built as an ancillary
building to the White House, which was demolished in the nineteenth century.
Indeed, it is notable that the WHS MPlan refers to the “White House kitchen”124.
The Royal Kitchens were not built as a landmark (notwithstanding their Grade I
listing); not built to serve Kew Palace; not designed to be seen as part of a
designed landscape. The listing for the kitchens does not refer to any group value
with the Palace (or vice versa) and they are not listed as a group.
236. The principal significance of the Royal Kitchens lies in its architectural interest
as a rare surviving eighteenth century royal kitchen and its historical interest as
the only surviving building from the White House complex125.
237. The setting makes only a limited contribution to the significance of the
kitchens. HE argue that the setting allows the connection to the Palace to be
appreciated but in reality the kitchens and the Palace are not read together in
any of the viewpoints taken from different points around the Great Lawn. Since
the contribution of the setting is limited, the presence of modern buildings in the
background setting would not harm the significance. As a matter of note, in the
key viewpoints looking towards the Palace from various parts of the Great Lawn,
the Kew Palace Flats are barely noticeable.
238. The Grade II listed Kew Cottages receive no mention in the MPlan, little
information is available as to their significance, and their significance such as it is
would not be harmed by the proposed development visible in the background126.
239. The BPS site is visible within Kew Gardens including in oblique views towards
the Palace. It is a 20th century building of little architectural quality127. If the BPS
scheme was formally consented and built out, the police station would be
demolished, and it is not thought that its replacement would be visible from Kew
Gardens. It is appropriate, therefore, to see the removal of the police station as a
heritage benefit, albeit of modest weight128. LBH consider that there would be
additional (albeit low level) heritage benefit caused by the removal of the police
station for both the St Pauls and the Butts conservation areas129.
240. Kew Green CA was designated in 1969, and encompasses Kew Green and the
buildings surrounding it, some mainly residential streets to the east and a portion
of the Thames to the west of Kew Bridge to the end of Brentford ait130. There is
no doubt that the primary significance of the CA is the Green itself as “a fine
example of a historic Green”131. It is “a charming space, bounded by a pleasing
variety of buildings, a lot of which are listed […] One is conscious of what lies
beyond that enclosing frontage, but it is very much subservient”132.
124 WHS MPlan CD.A25 at 3.2.2
125 SL Proof at 4.60
126 SL Proof at 4.67
127 SL Proof at 5.2
128 SL Proof at 5.3
129 SL Supplementary Proof at 6.1
130 SL Proof at 4.68
131 Conservation Area Statement CD.B10
132 Citroen report CD.A26 at 12.59 and 12.62
https://www.gov.uk/planning-inspectorate Page 38
241. The application scheme would not be visible in any views towards or from the
Green. It is a point of agreement between all parties in this case that the Green
will be entirely unaffected.
242. The Conservation Area Statement goes on to identify the riverside
environment in the CA as “a foil to the Green and is a semi-rural peaceful area”.
Notwithstanding any rurality, much of the more developed Brentford can be seen
from this portion of the river133 and the setting plays a less prominent role than
the setting to the Green itself. Although the riverside environment is of
“secondary importance”134 to the CA, the proposal would have some impact on
the semi-rural character and LBH characterise the harm as “minor”135 at the
“lower end”136 of the spectrum for less than substantial harm. The primary
significance of the CA – the Green itself – would be entirely unharmed.
243. The harm to the significance of heritage assets has to be weighed against
public benefits. Public benefits mean anything that delivers economic, social, or
environmental objectives as described in the Framework137.
244. The principal public benefits to be weighed in the scales in his case are: the
provision of housing; the re-provision of the Arts Centre; the improvements in
public realm; and economic benefits.
245. Just a few weeks ago, the SoS gave substantial weight to the benefits of
housing138. In this case LBH give the provision of housing significant weight139
but, although the application scheme will produce fewer units of housing (overall
and the affordable element) than Citroen, accept that the weight can also
properly be described as substantial in this case140.
246. Measured against current requirements (annualised at 822 dwellings), LBH
have a healthy five year housing supply (approximately 12 years141). Measured
against the IPLP requirement (annualised at 1782 dwellings per annum), LBH are
also able to demonstrate that they have a 5 year supply (including buffer). Both
of these statements are agreed by the applicant142.
247. At the Citroen Inquiry LBH were able to demonstrate the same position and
the SoS did not reduce the weight to the provision of housing below substantial.
LBH accept that notwithstanding their own locally strong position, they cannot
isolate themselves from the London-wide position, and the shortage of housing
across London is well-publicised143.
133 SL Proof at 4.78
134 SL Proof at 4.82
135 SL Proof 4.80
136 SL Proof 6.2
137 PPG 18a-020-2019073
138 Citroen decision CD.A26 at para 21
139 SB Proof 7.20
140 SB Supplementary Proof 2.2
141 SB Proof 7.16 and Appendix 1
142 Addendum SoCG CD.F15
143 SB Supplementary Proof 2.1
https://www.gov.uk/planning-inspectorate Page 39
248. Furthermore, LBH acknowledge that, since the Citroen inquiry, there have
been two events the effect of which is to add weight144 to the provision of
housing. First, the intervention of the SoS in the emerging London Plan and the
issues identified in the letter from the SoS to the Mayor in March 2020145, which
indicate that the housing requirement across London is likely to increase beyond
the IPLP figures. Second, the onset of economic crisis arising out of the
pandemic.
249. In respect of affordable housing, LBH has a record of performing well
compared to most London boroughs, although even LBH have been delivering
below their strategic target146. The 20% provision of affordable housing (60
homes) – taking this scheme and the interdependent BPS scheme together – is
accepted to be the maximum amount viable and is also a significant public
benefit147. The s.106 planning agreement provides for a Viability Review
mechanism – however, this can only review ‘upwards’148.
250. The relocation of the Arts Centre in Brentford is a key strategic objective for
LBH. The current site of the Arts Centre is located a considerable distance from
the town centre and from the transport hub of the town centre. The proposed
location at the BPS site is central, and well-located for Brentford Railway
Station149 (it is of no surprise to see that whilst the application site has a PTAL
rating of 3, BPS has a rating of 4)150. The new location will encourage passing
trade (which is identified as commercially important) whereas at present there is
almost none151, and will have geographic/locational synergy with other new
residential developments which form part of Brentford’s regeneration152.
251. It is not just that the BPS location is better. Whilst the Arts Centre is a dated
and inefficient facility, the proposed Arts Centre would be a state-of-the-art
facility. It would be in keeping with the regeneration of Brentford. It would be a
much-admired cultural hub. There would be two cinemas, a 250 seat theatre,
gallery space, studios, dressing rooms, a restaurant and a bar153. The deed
between the applicant and LBH will ensure that the fit-out specification is agreed
with LBH and the fit-out cost alone would be almost £2m. It would provide
Brentford and its community with a high-quality cultural focal point.
252. The opportunity that this application presents (alongside the BPS scheme) to
re-provide the Arts Centre in the right location is properly described as
“unique”154. There are no alternative options for a new Arts Centre and the future
of the existing Arts Centre is uncertain (the existing lease expires in 2024)155.
Were permission to be refused by the SoS in this case, that would frustrate a key
144 SB EiC
145 Letter SoS to Mayor CD.B20
146 SB Proof 7.22
147 SB Proof 7.22
148 ID10
149 SB Proof 7.25
150 Horne App D, Volterra Report at 4.34
151 Horne App D, Volterra Report at 4.26
152 Horne App D, Volterra Report at 4.13 – 4.16
153 SB Proof 7.26
154 SB EiC
155 SB in response to questions from the Inspector and in Re-ex
https://www.gov.uk/planning-inspectorate Page 40
strategic objective for Brentford. It would create an obvious missing link in the
regeneration of this important part of West London.
253. To the rear of the application site runs the Thames Path, an important part of
a national network of pedestrian routes. However, this section of the path is poor
and inadequate, a convoluted route lacking legibility, and which is vandalised,
does not allow disabled access, and is not perceived as safe156. The Council’s
planning witness described this as a missing link in the Thames Path.
254. The proposed new section of river path would be legible, wider, lit and
overlooked, and of high quality157. It would transform this section of the Thames
Path. That would be a significant public benefit.
255. LBH have identified three relevant economic benefits, aside from the provision
of housing and the provision of the Arts Centre. These are158: construction jobs;
permanent new jobs at site and retained permanent jobs; indirect economic uplift
in the community. The Council’s planning witness originally intended to give
these some, but limited weight. However, in the light of the major economic
downturn in 2020 as a result of the pandemic, the weight that should be given to
these benefits should increase159.
256. There is no viable alternative to deliver a similar package of benefits160. None
of the objectors have called any evidence to argue to the contrary. LBH
instructed independent viability consultants who agreed with the conclusion that
any significant reduction in quantum was undeliverable161.
257. The absence of viable, less harmful, alternatives to produce similar benefits
operates in the balance in two ways. First, unlike at Citroen, it means that the
existence of a possible less harmful alternative is not a factor weighing in the
overall balance as a material consideration against the application. Second, as a
matter of logic, it must add overall weight to the benefits package since those
benefits cannot be delivered from any alternative scheme162.
258. In respect of daylight163, whilst a very small minority of rooms at the
Lighterage Court/Kew Reach development would have a reduced level of
daylight, the assessment has to consider the position against BRE Guidance
which provides technical guidance not only as to whether the reduction is
acceptable based on hard data, but also distinguishes between different types of
room, allows for urban context, and enables account to be taken of whether the
affected property is a good or bad neighbour (a good neighbour would stand a
reasonable distance from the boundary). The Council’s planning witness
explained that in this context Lighterage Court/Kew Reach is not considered a
good neighbour164. By reference to BRE Guidance, assessment demonstrated that
in terms of daylight the proposal would not have a significant adverse impact on
156 See images of the route at Horne Proof, Images 11.1 – 11.3
157 SB Proof 7.38 – 7.40
158 SB Proof 7.37
159 SB Proof 7.37
160 SB Proof 7.44
161 Horne Supplementary Proof App A
162 A point made by TH in oral evidence
163 Committee Report CD.C31 at 7.160 – 7.168
164 SB EiC
https://www.gov.uk/planning-inspectorate Page 41
neighbouring residential amenity, with the impact articulated as “negligible to
minor”165. It was agreed between the applicant and LBH that the impacts are
therefore acceptable166.
259. In respect of sunlight167, once again a very small number of rooms at
Lighterage Court/Kew Reach would be affected but these would be bedrooms and
BRE Guidance identifies bedrooms (and kitchens) as less important. Once again,
there would not be a significant adverse impact on neighbouring residential
amenity and again the impact was articulated as “negligible to minor”168. It was
agreed between the applicant and LBH that these impacts are therefore
acceptable169. Overshadowing impacts were characterised as negligible170.
260. In respect of overlooking171, without mitigation there would be adverse impact
to a small number of flats at Lighterage Court/Kew Reach where habitable rooms
have been positioned on the boundary (once again, as a ‘bad neighbour’).
However, LBH are wholly satisfied that the matter can be properly and
successfully mitigated172 by condition relating to Flats 4 and 5 on each floor
facing Lighterage Court, and are satisfied with the condition proposed to address
the matter173.
261. The public benefits would outweigh the harm to the significance of heritage
assets. In those circumstances, the heritage balance which is incorporated into
the development plan would weigh in favour of the benefits, ensuring that the
heritage policies of the development plan, looked at overall, are not conflicted.
The proposal is consistent with (i.e. accords with) the policies of the development
plan as a whole.
262. LBH are conscious of the s.66 statutory duty which arises in respect of listed
buildings. However, by working carefully through the historic environment
sections of the Framework, that statutory duty will have been complied with174.
263. The conservation of designated heritage assets must be given great weight175.
However, the public benefits which will be generated by this scheme provide a
clear and convincing justification for the harm which would arise.
264. In response to the matters raised by the SoS in calling this application in for
his determination: the proposed development is consistent with the government’s
policies for delivering a sufficient number of homes and building a strong,
competitive economy; and for the historic environment, including the balance
between harm to the significance of heritage assets and pubic benefits. The
165 Committee Report CD.C31 at 7.177
166 SOCG CD.F2 at 13.1.1
167 Committee Report CD.C31 at 7.169 – 7.174
168 Committee Report CD.C31 at 7.177
169 SOCG CD.F2 at 13.1.1
170 Committee Report CD.C31 at 7.177 and SOCG CD.F2 at 13.1.1
171 Committee Report CD.F2 at 7.180 to 7.185
172 SB explained in EiC and in the conditions session of the Inquiry that he had misunderstood
13.2.1 of the SOCG CD.F2, and that LBH was satisfied a condition could secure suitable
measures to avoid unacceptable overlooking
173 ID13
174 Mordue CD.A22
175 NPPF para 193, CD.A1
https://www.gov.uk/planning-inspectorate Page 42
proposed development is consistent with the development plan for the area
including emerging policy.
The Case for Historic England (HE)
The case for HE, largely as expressed in closing submissions
265. Historic England rarely sees the need to become involved in public inquiries.
But after giving evidence at two recently, to express its disquiet about tall
building proposals in the setting of the Royal Botanic Gardens at Kew, it has been
necessary to do so again here, to explain its serious and intensifying concerns
about yet another harmful scheme.
266. HE is the lead body for the heritage sector and the Government’s principal
advisor on the historic environment. As a statutory consultee and with its
specialist role, its views should be given considerable weight and only departed
from for cogent and compelling reasons176. Nothing close to such reasons has
been given in this case. In particular, the claim by the applicant, that no harm
whatsoever would arise from this scheme, is inherently implausible. It has been
based on a flawed understanding of how setting contributes to the remarkable
significance of the Gardens and Kew Palace, as well as a confused approach to
the assessment of harm, which have led to untenable judgments about the effect
of this scheme on places that are special to our national culture and recognised,
throughout the world, for their exceptional value.
267. These submissions provide the advice of HE to the SoS primarily in relation to
issue (c) in the call-in letter177: the extent to which the proposed development is
consistent with Government policies for conserving and enhancing the historic
environment. They also comment later on issue (d): the extent to which the
proposed development is consistent with the development plan for the area
including any emerging plan178. In so doing, HE leaves the tasks of weighing the
benefits of the scheme and reaching an overall judgment on compliance with the
development plan, to the independent judgment of the Inspector and the
Secretary of State. But in this case, there can be no doubt that this scheme
would cause considerable harm to heritage significance of not just a national, but
international, register and should be accorded very significant weight.
268. Kew Gardens is replete with heritage designations which fall for consideration
in this case. It is a World Heritage Site and an Historic Park and Garden,
registered at Grade I. It includes the Royal Botanic Gardens Kew Conservation
Area, as well as a small part of the Kew Green Conservation Area179. It contains
56 listed buildings, six including Kew Palace (and the Royal Kitchens) of
Grade I180. Kew Palace is also a Scheduled Monument.
176 See Shadwell Estates Ltd v Breckland District Council [2013] EWHC 12 (Admin) at [72];
see too Steer v. SSCLG and Catesby Estates [2017] EWHC 1456 (Admin) at [52].
177 CD A34
178 CD C34
179 See the plans at Croft Appendix A (WHS and buffer zone) and Appendix B (Registered
Historic Park and Garden) and Royal Botanic Gardens, Kew Conservation Area and Kew Green
Conservation Area). See too the explanation at Clark, 6.2.1-5/32-3.
180 Croft 5.4.5/17
https://www.gov.uk/planning-inspectorate Page 43
269. Many of these designations overlap, but for present purposes there is no
dispute that due to its status, the assessment of the scheme on the World
Heritage Site can be folded into the other designations which cover the Gardens,
albeit that Kew Green Conservation Area can be considered separately given its
broader extent outside the boundaries of the site. The significance of Kew Palace
is inextricably linked with that of the Gardens, but requires discrete consideration
given its status as a building of remarkable value in its own right. The Royal
Kitchens also merit distinct treatment.
270. The starting point for any determination of heritage issues is a full and
accurate understanding of significance. It is easy enough to say that Kew is a
World Heritage Site; but more important to grasp what this should mean for the
planning system and for proposals which fail to respect this designation. Policy
and guidance confirm that as a WHS, Kew is unquestionably of the highest
possible heritage significance181. Inscription by UNESCO, secured though
international obligations voluntarily accepted by the UK, articulates its status as
the rarest and most valuable of heritage assets, not just nationally but globally.
271. In the language of the World Heritage Convention and its Operational
Guidelines, Kew is “unique and irreplaceable” cultural heritage, “so exceptional as
to transcend national boundaries and to be of common importance for present
and future generations of all humanity”182. Its permanent protection is “of the
highest importance for the international community as a whole”183. In signing up
to the Convention the UK has committed itself to doing “all it can”, “to the utmost
of its resources” to protect and conserve the heritage which is the subject of the
inscription184. It is common ground that these are important and emphatic
duties185 which are relevant to the application of Framework policy, in particular
the weight to be given to the conservation of heritage significance where any
planning balance is required186. It is crucial therefore not to lose sight of just
how important a WHS is. It sits at the very top of the tree, globally.
272. As the first words of the Statement of Outstanding Universal Value describe,
the Gardens at Kew are “set amongst a series of parks and estates along the
River Thames’ south-western reaches”, a series from Hampton to Kew which
bears witness to the royal influence on our landscape and its gardens, set away
from the urbanised world of the city. The Thames threaded its way through the
emergence of historic royal and noble estates in this part of the capital, and at
Kew its sense of open space and movement away from the city provided an
attractive and functional backdrop to the life of the royal family187.
273. The location of Kew on the Thames, and the royal connection, are therefore
key to a full understanding of Kew as a “historic landscape garden…illustrating
significant periods in garden design from the 18th to the 20th centuries,” where
the “landscape design of [the] Gardens, their buildings and plant collections
181 NPPF, CDA1, 184, 194b; PPG, CDA24, 26
182 CDA16 p. 1; CD17 49/20
183 CD17 49/20
184 Article 4 of the Convention, CDA16 p. 3
185 Tavernor xx. See too the Kew MPlan, CD A25 1.4/9: “significant obligation”
186 Tavernor xx. See too NPPF 2/4 which states that planning decisions “must reflect
international obligations”
187 See Clark, 6.22-40/40-47
https://www.gov.uk/planning-inspectorate Page 44
combine to form a unique testimony to developments in garden art and botanical
science”. Identified elements of the eighteenth and nineteenth century layers
“convey the history of the Gardens’ development from royal retreat to national
botanical and horticultural garden”188.
274. The OUV of Kew is illuminated through attributes that are articulated in its
MPlan. Of particular relevance to this case are, first, its “rich and diverse
historical landscape providing a palimpsest of landscape design”, “reaching from
royal pleasure ground roots”, key features of which include a “strongly enclosed
sense of ‘otherworldliness’”, its “relationship with the river Thames” and the
“ability for visitors to roam freely across the landscape”, including “personalised
experiences of the gardens, landscape features and iconic buildings contained
within”189.
275. The open space of the Great Lawn survives from a larger lawn dating from the
mid-eighteenth century, which was a central feature of William Chambers’
landscape design for Princess Augusta. It was key to creating the experience of a
pastoral escape from the city, whilst anchoring the landscape to the domestic
focus of the royal household from which the Gardens have sprung. Today its
sense of open space can still be appreciated, punctuated by architecturally
significant buildings including Kew Palace, backed by trees and sky. Here the rich
composition of views from the Great Lawn crucially preserves the experience of
designed landscape that is vital to the Gardens’ historical and creative origins. As
the royal patrons and their designers intended, the Lawn still evinces that sense
of beautiful, skilfully tended nature as the dominant visual experience, where
visitors can still feel that they have escaped into a verdant world away from
urban life.
276. The second relevant attribute is Kew’s “iconic architectural legacy”. Kew is
“home to a unique and distinguished architectural heritage, including some of
Britain’s most iconic buildings”190. Its “history as an 18th century royal retreat
alongside and linked to the river Thames has left a rich architectural legacy” and
the property “contains a striking collection of royal palaces and ancillary
buildings, with the White House kitchen [also known as the Royal Kitchens] and
Kew Palace standing as key survivors”191.
277. These attributes have not been disputed. They are particularly concentrated in
the northern part of the Gardens that is affected by the proposals, where Kew
Palace overlooks the river and serves as a focal point in views from the Great
Lawn. Kew Palace is therefore key to the significance of Kew as a WHS and is of
remarkable value in its own right.
278. Completed in 1631, Kew Palace is the oldest and one of the most prominent
buildings on the site192. It is of exceptional historical and architectural
importance, and is accorded the highest significance as a matter of domestic
legal and policy protection, alongside its contribution to the WHS. It is a
landmark within Kew, central to telling the story of royalty here, their journey
188 CD A8
189 CDA25 pp. 6-7
190 CDA25 p. 26, rh column
191 CDA25 p. 26, rh column
192 CD A25 p. 15
https://www.gov.uk/planning-inspectorate Page 45
along the Thames and their influence on the design intent of the evolving
Gardens. It was a home for the royal family, who instigated and patronised the
development of the Gardens in their earliest days and most prolific periods of
change. It represents their historical source as a private retreat next to the river.
It makes a “direct contribution” to the OUV of Kew193, which is characterised by
the “site’s royal connections, time depth and historic landscape development
including Kew Palace.” It is a fundamental aspect of the iconic architectural
legacy under the second attribute194.
279. The connection between the Palace and landscape of Kew has changed since
the origins of the botanic garden in the 1750s, however a clear relationship with
the Great Lawn has existed for over 200 years, after the White House (which
faced the Lawn as the principal dwelling) was demolished in 1802. By the end of
the 19th century the Lawn had been deliberately extended to the entrance of the
Palace195, which took its place as a focal point in views and has been maintained
as such to the present day. The Palace thus helps draw together an
understanding of the rich and diverse historic landscape of the Gardens.
280. The Palace has always been regarded as intimately associated with the
significance of Kew. It was mentioned in the ICOMOS site evaluation196. It can be
linked directly to the SOUV and the “history of the Gardens; development from a
royal retreat and pleasure garden”197. The Chiswick Curve Inspector rightly
concluded that “the buildings that provide Kew Gardens’ iconic architectural
legacy are an important constituent of the palimpsest of landscape design. It
seems to me then that any harm caused to the setting of these listed buildings
would thereby harm the significance of that building, but also that of the
designed landscape”198. The Citroen Inspector took the same view: “The
Orangery, together with Kew Palace, the White House and the Great Lawn were
all part of a landscape which was designed as a piece, albeit over a period of
years and subsequently radically modified. Any harm to the setting of the
Orangery would also harm what remains of that landscape”199. It is obvious that
this last conclusion applies with the same force to Kew Palace.
281. There is no evidence therefore, in inscription documents, previous decisions or
the MPlan, to suggest that Kew Palace makes anything but a direct and
substantial contribution to the significance of Kew. As the historical evidence
confirms200, Kew Palace played a central role in the domestic and dynastic history
of the Georgian royal families. The first botanic gardens owe their history to their
presence here and as such the Palace enjoys incredibly rich historical associations
with the Gardens through the royals who developed them.
282. The Royal Kitchens, also listed as Grade I, were originally built in the 1730s to
serve the White House but came to be seen in close conjunction with the Palace
in views from the Great Lawn. They house rare surviving kitchen interiors from
193 CDA25 p. 30 under viii; see too p. 134
194 CDA25, 3.2.2/26
195 See Clark Appendix 1.5
196 CDA19 pp. 107, 109, 110, 111
197 CDA8 first para
198 CDA21 12.110/139
199 CDA26 15.8/104
200 See Clark 6.2.8/35 et seq; statement of Lee Prosser at Drury Appendix 3
https://www.gov.uk/planning-inspectorate Page 46
the Georgian period and with the Palace, they convey the superlative
architectural legacy of the Gardens and enrich the understanding of the site as a
former royal residence.
283. Kew Green Conservation Area includes a small riverside portion of Kew
Gardens, taking in a riverside path that curves around the northern edge of the
WHS, as well as a large portion of its buffer zone, extending into the Thames and
including Brentford ait. Its position on the river, dominated by the waterway and
the trees on the ait, is integral to its historical development and its semi-rural
character, and is recognised by the Conservation Area Appraisal as a “superior
riverside environment” which acts as a “foil” for the Green itself201.
284. The level of protection accorded to the setting of a WHS such as Kew is very
high. As the MPlan recognises202, the obligation under the Convention to protect
OUV includes the management of change outside the site where this might affect
the OUV of a property. The Operational Guidelines203 emphasise that
“maintenance of all aspects of their OUV…goes beyond the boundary to include…
the broader setting”.
285. This is reflected in planning policy which confirms that proposals in the setting
of a WHS should preserve OUV just as any proposals which might have a direct
effect on the fabric of the site itself. The IPLP requires that proposals in the
setting of a WHS should preserve its OUV204. The PPG205 requires that policies
should protect a WHS and its setting from inappropriate development, with no
distinction drawn between them. It is common ground206 therefore that the
protection of OUV and significance extends just as strongly to setting as to the
WHS itself. Policy does not distinguish between a WHS and its setting in the high
levels of protection it affords to OUV.
286. Secondly, the clear policy of protection is not restricted to the buffer zone as
part of the setting of a WHS. There is no dispute that the setting only includes
and is not determined by the buffer zone207. It is not even necessary for a WHS
to have one208. The WHS SPG in London confirms that buffer zones may differ
from settings, “which may be much more extensive and a more useful
mechanism for protection and management”209. It is common ground that
policies designed to conserve OUV, as well as the OG, apply as strictly to the
wider setting as they do to any buffer zone210, such that the protection of
significance is undiminished in cases where development is proposed outside that
zone211.
201 CD B10
202 CDA25 1.4/9
203 CDA27 112/32
204 See too intend to publish London Plan CDB16 325/6 policy HC2
205 CDA24 32
206 Tavernor xx
207 Tavernor xx. See too See CDA24, PPG 26, 31, 32, 33
208 CDA25 1.2/8
209 CDB5 3.19/26
210 See CDB18 policy 7.10; Operational Guidelines CDA17 112/32; CDA24, PPG 32
211 Tavernor xx
https://www.gov.uk/planning-inspectorate Page 47
287. Applying these principles to the present case, there is no credible basis for any
suggestion that the location of the proposal outside, but on the edge of the buffer
zone, undermines the sensitivity of the wider setting or the case that harm would
arise from development there.
288. Here, the buffer zone specifically includes the Thames and its islands, moving
north from Syon to the area immediately opposite Kew Palace212. This area is
plainly regarded as either “important to the protection of significant views” or as
having “a bearing on the character and setting of the Gardens”213. The potential
for development on the edge of this area to harm this character and setting, and
therefore its contribution to OUV, is obvious.
289. As the applicant agreed, it would be wrong then to assume that only the
important aspects of setting are those lying within the buffer zone; or that the
potential for harm was necessarily reduced by locating development outside it214.
The MPlan itself confirms that the buffer zone does not incorporate all land that
relates to the setting from where change could affect the OUV of the site215.
290. The major contribution of setting to the significance of Kew is recognised in
strategic policy. The IPLP216 and the WHS SPG, specifically published to guide
development in the settings of the London WHSs217, both recognise that the
context for each of the four London WHSs is markedly different and that the
“qualities” and “ambience of each are conditioned by the character of their
surroundings218. The WHS SPG describes Kew as uniquely self-contained219,
“nine miles from central London”220, a place to escape from the city221. In this
way the “setting of a WHS is recognised as fundamentally contributing to the
appreciation of a WHS’s OUV” and “changes to it can impact greatly…on the
ability to appreciate OUV”222. The applicant rightly accepted that this applies to
Kew223. Development in Brentford is understood to “prompt closer scrutiny of its
form and appearance”224.
291. The important contribution of setting is recognised in the SOUV of Kew itself. It
identifies at the outset the setting of the historic landscape garden on the
Thames. When addressing the integrity of the property itself, it specifically warns
that “development outside the buffer zone may threaten the setting of the
Property”225. The applicant accepted that here both government and the World
Heritage Committee were clearly endorsing the importance of setting in the
protection of the overall integrity of Kew as a WHS226.
212 CDA25 1.2/8
213 CDA25 1.2/8
214 Tavernor xx
215 CDA25 D6 p. 113
216 CD B16
217 CD B5
218 CDB16 7.2.2/326; CDB5 4.9/34
219 CDB5 p. 35
220 CDB5 p. 35
221 CDB5 p. 59
222 CDB5 1.3/4
223 Tavernor xx. See too the Thames Landscape Strategy, CDB3 4.12.35/361
224 CDB5 p. 43
225 CDA8
226 Tavernor xx
https://www.gov.uk/planning-inspectorate Page 48
292. The contribution of setting has been highlighted by ICOMOS, the expert
advisory body to the World Heritage Committee under the Convention. In their
technical review of the Chiswick Curve proposals, setting was emphasised as a
“key element” given that Kew is “tightly linked to its location and to the River
Thames”; it is “especially important”, a “main concern in the conservation of the
property”227. Setting played a “crucial role…in the overall significance of the
property”228.
293. Their response to this scheme made similar points, emphasising in particular
how the riverside location of the property was “crucial to its OUV”229. They in
fact recommended an urgent review of the buffer zone, on the grounds that when
it was devised in 2003, “the possibility of high-rise development of the type
proposed was not envisaged”, it being “presumed that full attention would be
given to minimising these vulnerabilities” as stressed in the SOUV230. Their
original site evaluation emphasised how the Haverfield Towers in Brentford
“seriously diminished the visual experience of Kew” at several points in the
gardens, a concern which clearly applied to views from the Great Lawn and is
consistent with the view that setting makes a substantial contribution to OUV231.
294. As the applicant accepted, ICOMOS has therefore time and time again
emphasised the highly significant contribution that the wider setting makes to the
OUV of Kew232. An attempt to wave this away because they have, as it was put,
an “axe to grind,”233 displays scant regard for both their acknowledged expertise
and their status within the international regime to which the UK voluntarily
committed itself when signing the Convention. As the Council agreed234, their
views are an important material consideration which should be given substantial
weight in this case.
295. The SOUV aside, the periodic report of government from 2014235 refers
consistently to development outside buffer zones causing harm specifically to
OUV, by way of “significant” and “increasing” negative effects arising from
housing and commercial development. This can only sensibly be taken to reflect
a recognition of the importance of setting to the SOUV of Kew, as the applicant
agreed236. That contribution is patently seen as significant. The fact that this
document was followed by the Framework and other guidance makes no
difference at all to that assessment.
296. There is a recently adopted MPlan. The applicant concedes that this is “all we
have” to define the setting of Kew237. It demonstrates conclusively the
substantial contribution to significance made by that setting.
227 CDA14
228 CDA14
229 CDA13, p. 3 under “Analysis”
230 P. 4
231 CDA19
232 Tavernor xx
233 Tavernor xx
234 Laird xx
235 CD A15, 2.1, 2.4, 5.1
236 Tavernor xx
237 Tavernor xx
https://www.gov.uk/planning-inspectorate Page 49
297. There was no direct criticism of the MPlan’s treatment of setting by any party
to the inquiry. As the MPlan explains, the starting point for an assessment of
setting is again the OUV of the property. Kew descends from the world of
Georgian royalty, as a country retreat for relaxation and pleasure distant from
the city238. It is agreed that the sense of “enclosed otherworldliness”, which is
identified as a key aspect of the contribution that setting makes to significance,
“underpins” OUV239. Preserving integrity of this setting from external intrusions
plays a “fundamental role” in supporting OUV240. The WHS has a “very specific
set of relationships with its setting”, “which are an integral part of its design”241.
The otherworldly character of Kew is “directly dependent on the property’s visual
envelope being conserved and preserved, unpunctured by external features”242.
The historic landscape design, the built architecture of the site “and the
experience of place that is derived from these are all central to the OUV of the
WHS”243. Overall, setting makes a “direct and important contribution” to the
significance of Kew as an evolved designed landscape representing key periods in
garden and royal history244. None of this was adequately recognised by the
applicant.
298. The Chiswick Curve and Citroen decisions recognise, albeit in part, how setting
is vital to the OUV of Kew.
299. The Plan expresses how setting contributes to OUV, in terms which have not
been seriously disputed in this case. It explains that “the gardens were first
carved from the agricultural fields beyond Kew, a rural settlement on the banks
of the Thames and an enclave of the royal court since Elizabethan times. Using
the backdrop of this quiet rural retreat, the internationally influential Georgian
landscape designers and architects who worked at both Richmond and Kew
created magical worlds for their royal patrons, separated from the everyday
world outside… When a part of the Gardens was thrown open to the public for the
first time in 1841, the site still retained this element of privacy. In an increasingly
urban and industrial environment, the secluded, rural aspect of the new Kew
Gardens became a treasure to be prized”245. The site “retains its rural/pastoral
aspect, actively supported by the Thames and the parkland to its west and south
and by the relative lack of intrusion from the urban environment around it”246.
The root intent is to engender a feeling of escape into a world apart. Views of a
largely unbroken skyline within an area of bounded open space, from what
survives of the Great Lawn, lie at the heart of that experience, the spirit of the
place.
300. Allied to the “sense of enclosed otherworldliness”247, the “key ways” in which
setting supports and enhances OUV are summarised as follows248:
238 2.7/19
239 2.7/20, as cited by Tavernor at 4.27/67
240 3.3/30, second column
241 3.3/30, second column
242 3.2.1/26
243 3.3/30
244 3.3/30
245 CDA25 2.7/19
246 CDA25 p. 113
247 CDA25 2.7/20
248 CDA25 3.3/30
https://www.gov.uk/planning-inspectorate Page 50
i) “providing a largely unbroken skyline above the walls and boundary
planting hence strengthening and maintaining the historic and
continuing design intent of the WHS’s sense of being a world apart,
separated from the wider, urban world outside…
ii) this largely unbroken skyline enables the visitor to appreciate and
understand the design intentions of the landscape architects who
worked there in the various phases of the gardens, as they progressed
from royal retreat and pleasure garden, to… a unique botanic garden
set within a historic designed landscape;
iii) providing areas of openness and ‘big sky’, framing strong internal
views across the bounded open space;
iv) providing visual and physical relationships westwards over the River
Thames and to the wider Arcadian landscape beyond, including the
designed relationships with Syon Park, which enables modern visitors
to appreciate the rus in urbe that Kew Gardens provides, and to see
the landscape through a similar lens as the historic designers who
worked there, and their royal patrons;
v) providing the backdrop to key views and vistas including, amongst
others, the Syon Vista, Broadwalk, Cedar Vista, Pagoda Vista, and
other internal views such as the views over the open lawns in the
Entrance Zone which reflect the historic Great Lawn;
vi) providing the backdrop to views of and from architectural icons on the
site including … Kew Palace…”
301. These central features of setting are agreed to be engaged by the current
proposals249.
302. The MPlan itself confirms that views do not need to be appreciated along
formal vistas or walks, or axial views to make an important contribution to
setting. As the applicant now accepts250, the MPlan identifies views from the
Great Lawn generally towards Kew Palace (and the Orangery) within the key
aspects of setting251, reflecting the intended nature of the Great Lawn as allowing
open and kinetic252 views across a wider area. The fact that Kew Palace is not the
focal point for a specific and singularised view or vista does not render it
unimportant, when the Lawn was not intended to perform that function. It is also
agreed that there is nothing in the MPlan which seeks to downgrade the relative
importance of views obtained from the Great Lawn253. In fact the specific
reference to open views towards the Palace within the MPlan254 confirms the
contribution that these views make to OUV, as the applicant itself recognised
when treating viewpoints 16 and 19 from the Great Lawn as possessing
“exceptional” value and a “very high” degree of sensitivity255. The MPlan
249 Tavernor xx
250 Tavernor xx
251 See CDA25 p. 123 Figure 4
252 See too CDA25 p. 126
253 Tavernor xx
254 See CDA25 p. 123 Figure 4
255 HIA (Tavernor Appendix 2) vp 16 p. 58:; vp 19 p. 70
https://www.gov.uk/planning-inspectorate Page 51
highlights elsewhere the contribution made by setting by providing the backdrop
to views of (and from) Kew Palace256.
303. Where the MPlan refers to the experience of “big sky”, this is not to be taken
as simply meaning a sense of being aware of the sky above the head of the
viewer. Read in its proper context, the experience is of “bounded areas of
openness,”257 strong internal views in a tree-bounded area opening up into open
sky without intervening buildings. Trees and sky, and the built architecture within
the gardens, create the skyline, which is largely unbroken. Any buildings which
contribute towards this experience are those within the site, not those of the city
further beyond, which are marked out as intrusions that break the sense of
enclosure within the Gardens.
304. When considering the relationship with the Thames, the applicant has tried to
draw too much from the truism that Brentford has always been there while Kew
has. This issue is considered more specifically in the context of Kew Palace below,
but in general terms the statement that there has been a working settlement on
the other side of the Thames says little about whether or how the wider riverine
setting of the Gardens contributes to their significance.
305. There is no dispute that there have been buildings on the other side of the
river for centuries, with some visibility from Kew. The gasworks were a significant
intrusion when they were there258, the visual encroachment of which was
resisted, not entirely successfully, through carefully placed planting along the
western boundary of the Gardens259. When required, its purpose, both within the
site and on the aits, was to “manage the relationship with the Thames” so as to
“maximise” and “conserve” the atmosphere of the Gardens against an urban
backdrop260. Thus, as the applicant accepted261, there is no evidence to suggest
that it has ever been part of the design intent of the Gardens to invite in views of
Brentford. The gasworks in particular prompted Kew to take steps to reinforce its
rural and otherworldly atmosphere, albeit that the river would still have been
experienced through the gaps and trunks in the trees262. The Victorian planting
demonstrated how aspects of Brentford have been viewed, at times, as a
negative influence, rather than something that was simply accepted as present
on the other side of the river so as to cause no harm. As the applicant conceded,
there is certainly no basis for treating such development in the setting of Kew as
a justification for further harm now263.
306. As for Kew Palace in particular, as the MPlan acknowledges, it has a specific
relationship with its riverine setting264, which is important not only for the Palace
in its own right but the OUV of the WHS.
256 See p. 30 vi: and Figure 5 p. 126
257 CDA25 p. 128
258 See the explanation of the history in Drury 4.4.4-4.4.6/41
259 CDA25 p. 120 rh column. See too p. 129 which describes planting between 1862 and 1922
in particular
260 CDA25 p. 131
261 Tavernor xx
262 See Clark App. 2.3 p. 12
263 Tavernor xx
264 CDA25 p. 131 lh column
https://www.gov.uk/planning-inspectorate Page 52
307. The Thames was an important part of the royals’ lives, serving as a convenient
and ceremonial form of transport from palace and city living to their countryside
retreat265. The map evidence from the 18th century266 shows planting including
an avenue of trees which confirms what the applicant agrees267 to have been a
direct and open relationship with the Thames, with no sense of any strong
screening through depth of planting268. This positive relationship with setting
endured with sufficient strength to persuade George III to proceed with the
construction of the Castellated Palace on the banks of the Thames to the west of
Kew Palace between 1801-1811269. The Samuel Leigh panorama of 1824270
shows that by then the avenue had been removed, but there was (it is agreed)271
still a clear visual relationship with the river, without any sense of strong
screening of what lay beyond. The scale of development in Brentford had plainly
not discouraged the royal family from taking on the property as a sanctuary from
city life. Nor had it prevented it from being built - before its royal associations,
the Dutch House reflected the taste and ambitions of a growing merchant class,
located on the Thames near royal Tudor Palaces including Richmond. The
elevation on to the river includes a centrepiece with balcony and loggia clearly
showing the connection to the river. The views from its upper windows were
designed to look out towards the river.
308. There was then an unquestionably strong visual and physical relationship
between the Palace and the Thames in particular, which was not interrupted or
damaged by development of any significant scale in Brentford, at least until the
later expansion and aberration of the gasworks. This connection is agreed272 to
be important: it confirms the role of the river in delivering the royals to what
they sought in the first place: a sense of countryside retreat. The applicant’s
original THVIA273 was therefore right to acknowledge that the Palace historically
has had a strong association with the Thames. And none of the evidence shows
that with the exception of the gasworks there were buildings of any substantial
scale in views to the north. The Samuel Leigh panorama makes clear that the Bell
Hotel was the tallest structure on the site as a four-storey building at best,
viewed behind osier beds in the foreground. There was certainly no evidence of
anything like the combined height and bulk of buildings that are now proposed274.
309. The important point, therefore, is not that Brentford was simply there, but that
it did not detract from the strong relationship between the Palace, the river and
the associated planting which attracted the royal family and underpinned the
design intent of the emerging Gardens. Again, the applicant was wrong to imply
that the historical existence of buildings on the other side of the river somehow
opens the door to the proposed development. The truth is that there is nothing in
265 See Clark 6.2.24-6/41 and Appendix 2.1 p. 13
266 See Clark App. 1.2 p. 4; 1.4 p. 6
267 Tavernor xx
268 See too the Sandy painting at Clark App. 2.3
269 CDC14 4.115/46
270 Clark Appendix. 2.2 p. 11
271 Tavernor xx
272 Tavernor xx. See too the THVIA at CDC14 5.21/55
273 CDC14 5.2.21/55
274 Tavernor xx
https://www.gov.uk/planning-inspectorate Page 53
the relationship between Palace and its wider setting which can serve as any
justification for a scheme of this height and bulk.
310. The gasworks have been closed for nearly 60 years and the MPlan describes
the setting of Kew Palace, in undisputed terms275, as making a direct
contribution to significance276. No issue is taken with the description in the MPlan
of key elements in the setting including: “views of the river frontage”; “views
from primary entrances to front and rear”; “the visual and physical relationship
to Thames”; and “views from upper floor windows”277. ICOMOS regards the
riverine setting as “considerable”278. The applicant’s Heritage Impact
Assessment acknowledges views to the rear towards the Thames (including
intended views from Palace windows)279, in particular viewpoints 20, 20A and 21,
as contributing to significance as they place the Palace in its riverside setting280.
Again these views are regarded as of “exceptional” value and “very high”
sensitivity281, by dint of what the THVIA earlier described as a “semi-rural”
feel282, with only “low-set” buildings in Brentford283.
311. This semi-rural, riverine feel is now agreed284 to be consistent with sense of a
retreat from the city, and the historical connections with the Thames, both of
which characterise a positive contribution to the setting of the Palace and Kew285.
The absence of dominant large-scale development on the Brentford side allows
for a sense of depth and openness in views across and beyond the river and the
trees which shape the experience here, particularly in the summer months.
312. This is not to suggest that these views are historically intact and HE’s case has
never been that this scene has been pristinely preserved since the date of royal
occupation. The MPlan does not claim that this stretch of the Thames has the
same character as seen in views towards Syon Park286. But modern Brentford
does not for the most part interfere (in this sense at least the site does not have
a strong relationship with Kew); and the setting has recovered a sense of
openness, towards trees and water which exert an influence that feels closer to
the design intent of the Gardens and the experience which the royal family and
others cherished in the first place. This sense of the place is not displaced by the
creation of the modern gardens, or the embankment works, which still enable
that connection between the Palace and its setting to be appreciated. The viewing
platform from the Queen’s Garden was raised to emphasise this relationship with
the river287, not Brentford. It could never be understood to welcome in modern
development from the north side of the river. There is no evidence that this was
ever the purpose of placing it there.
275 Tavernor xx
276 CDA25 p. 20(viii); p. 137 rh column
277 See CDA25 p. 137. Emphasis added
278 CDA13
279 GPA3, section 9, bullet point 3, pp. 4-5 (CD A5)
280 6.35/21 and CD B2 4.12.37/361-2
281 HIA, pp. 74, 78, 82
282 CDC14 4.106/45
283 HIA, Tavernor Appendix 2 p. 74
284 Tavernor xx
285 Tavernor xx
286 MP CDA25 p. 113 rh column
287 See Tavernor 3.24/33
https://www.gov.uk/planning-inspectorate Page 54
313. The contribution of setting to the significance of Kew Palace (and with its OUV)
does not end with its relationship with the Thames, as described above. The
Palace lies not only on the river, but at the head of the Great Lawn. Views of the
Palace from the south highlight the landmark role of the Palace, and the curving
presence of the river gives the Gardens a breathing space which influences the
sense of separation from the built environment beyond its boundary.
314. Again, there is no dispute with the overall contribution made by setting here,
as described in the MPlan288. It provides a backdrop to views to the Palace as an
architectural icon of the Gardens289 and: “a key landmark in this area of
gardens”; “key views from various locations to the east on the Great Lawn”;
“views from primary entrances to front…”; and “memory of nearby demolished
White House”.
315. The applicant agreed290 that: the Great Lawn was extended up to the front of
the house, to make it the focal point of the area by the end of the 19th
century291; that the Palace has been a landmark of Kew for over 200 years; that
it helps signal links with the royal family and their development of the gardens
(the Great Lawn was part of the Gardens which was associated with Augusta,
who was in turn closely associated with the Palace); that the Palace now faces
the Great Lawn in a comparable way to the White House; and that although
views from the Lawn may have changed since the 18th century, these took place
just as changes to the Great Lawn itself occurred292.
316. This evolution and layering of this relationship therefore goes hand in hand
with the palimpsest of the historical landscape. The change is thus inherent in
significance, rather than taking away from it. As the Chiswick Curve Inspector
found, it is a fundamental part of the designed landscape and a constituent of the
palimpsest of landscape design293. And as the Citroen Inspector concluded, it is
part of a landscape that was designed as a piece294. Views towards it, in
particular viewpoints 16 and 19, are in the end regarded by the applicant as just
as “exceptional” and “highly sensitive” because of their relationship with the
Palace as they are with the wider OUV of the site.
317. The setting of the Royal Kitchens is listed as one of the reasons for
designation295. The building does not sit as a landmark but is visible in views
from the south, including viewpoint 16, and makes a positive contribution to
understanding the historical connection between the Gardens and their royal
past, in particular the domestic focus of the royal household. The absence of
development between the Royal Kitchens and the Palace allows space for that
relationship to be appreciated. The backdrop of trees and open sky also enable
the architectural qualities of the roofline to be understood. It should not be
assumed that planting which can be seen in front of the Kitchens in views from
the Lawn will offer a subsistent screen, so as to downplay the relationship with
288 Tavernor xx. See too Tavernor 3.60/52
289 CDA25 p. 30 vi
290 Tavernor xx
291 See too Drury 4.5.1/50
292 See CDA25 pp. 114 and 116
293 CD A21, 12.110/139; 12.100/137
294 CDA26 IR 15.8/104
295 CDA20b
https://www.gov.uk/planning-inspectorate Page 55
the Palace or the overall contribution of the setting. As RBGK explain296, this
vegetation provides only localised shielding between the Great Lawn and the
service area around and beyond the Kitchens. It is actively managed in this
context and is not intended to grow to a size which could help screen large-scale
external development. The Council in particular, relies excessively on this
screening to downplay the contribution made by setting, and the HE assessment
of a moderate contribution is correct.
318. The setting of the Kew Green CA is crucial to its character. The river and the
verdant landscape are the prevailing features of the experience, and although
built form is perceptible in winter particularly it is by no means prominent in
many views looking west along and across the river. Viewpoints 12 and 13 in the
HIA both show that modern development in Brentford is nearby, but the towpath
becomes more rural and secluded moving away from Kew Bridge towards the
Palace; and the scale and grain of development limit any sense of imposition,
particularly in the warmer parts of the year, when the tree screening gives the
riverside area a natural, contained feel, with views opening up as you take the
curve of the river, a great sweep of water and lush treeline behind297.
319. The position of HE is that the proposals would result in a high level of less than
substantial harm. This was described by HE’s heritage witness in other words as
more than moderate, but not at the upper end of less than substantial. HE does
not allege that Kew is at a tipping point into substantial harm, or that allowing
the proposals would place Kew there. The judgment is medium in the cases of
the Royal Kitchens near the Palace (given the lower significance attributable to
their setting) and Kew Green conservation area (recognising that the designation
also takes in the Green and other views along the river).
320. The context for the assessment of harm is that this application involves
introducing development two-three times the size of existing buildings onto a site
which could not sit much closer to what is a highly significant area, even for Kew,
where its cultural landscape and iconic architecture strongly entwine. Its location,
right on the river, around 230m from the edge of the WHS, places it in near
proximity to the part of the Gardens with the most intense concentration of
Grade I buildings and important open space enjoying open views towards the
river.
321. There is no dispute in this case that the Bedford case represents the law on
what is substantial harm in the terminology of the Framework. Such harm arises
where the significance of a heritage asset would be “vitiated or very much
reduced”298. But, the language of Bedford (including the concept of significance
having drained away in cases of substantial harm) does not really help much with
identifying where any less than substantial harm should be placed on the
spectrum.
322. The basic approach is to test the effect of the proposal in terms of the harm it
causes to significance. As the applicant ultimately accepted299, this involves a
basic question of judgment which does not and should not require some form of
296 Croft 6.1.6/56
297 Clark 6.3.7-8/101
298 CDA22c at [25]
299 Tavernor xx
https://www.gov.uk/planning-inspectorate Page 56
mathematical or mechanistic approach to assessment. Thus, as was also
agreed300, there is nothing in policy or guidance to suggest that any analysis of
harm should proceed by first working out discrete aspects of significance which
are carved out from assessment, leaving others “at large” for consideration. As
the Citroen Inspector concluded when addressing a similar tack taken by the
applicant in that case, the important point is not what is left untouched but
whether and how any development affects what is important301. Assessing harm
does not therefore involve an exercise where you start by identifying what is left
alone (or not “drained away”), such that only a notional proportion of significance
is residually capable of determining what extent of harm will arise.
323. There is a need to recognise that there may well be cases, such as Kew, where
setting cannot conveniently be separated from the significance invested in the
asset itself. As explained above, setting is integral to a proper understanding of
what makes Kew special. The SOUV for Kew warns that development outside the
buffer zone may threaten the setting and with it the overall integrity of the
WHS302. Care is required to avoid introducing an overly rigid binary distinction
between setting and the asset itself, when in this case there is a symbiotic
relationship between them.
324. Even if the judgment were reached that more significance did reside in the
fabric of an asset, it is common ground303 that this does not dictate in any direct
or mechanical way where on the spectrum of less than substantial harm a
proposal should lie. In such cases, as the applicant accepted304, there is nothing
to prevent the decision-maker reaching a judgment that proposals would cause
more than a moderate level of harm.
325. In this context, the approach suggested by this and other applicants, should
not be given any significant weight. Thus, (1) the absence of a direct impact on
the physical asset cannot mean that harm is somehow placed towards the lower
end of the spectrum; (2) in circumstances the OUV can be found from one or
more of the identified criteria for inscription305, the fact that harm is not caused
by reference to all of the criteria under which OUV has been identified does not
mean that the harm should be qualified; (3) similarly, the fact that one important
aspect of significance is affected but other aspects remain untouched should not
be taken to lessen the weight given to any such harm; (4) harm should not be
calibrated by reference to the extent of development as a proportion of the
overall setting, for this does not necessarily reflect the significance of the effect
and would in any event invite successive developments to claim their limited
slices for themselves with no control over the extent of harm; (5) the fact that in
an asset such as this WHS, there will be a number of views left unharmed does
not mean that any harm should be assessed at the lower end of the spectrum.
Again, this risks masking the true harm on important views that are affected.
326. As the applicant accepted, harm to significance may arise where new
development reduces the extent to which relevant buildings predominate in the
300 Tavernor xx
301 See CDA26 15.15
302 CDA8
303 Tavernor xx
304 Tavernor xx
305 CD A17 77/25
https://www.gov.uk/planning-inspectorate Page 57
view306; or where it distracts from or competes with a building which is the focus
of a view307. Such harm does not only arise where the development appears
atop the buildings in question308.
327. In the case of Kew, successive decisions of the Secretary of State (Chiswick
Curve and Citroen) have proceeded on the basis that any intrusion of the city
must be harmful to its OUV309. This position was plainly not reached simply by
reference to the individual building in question but to a wider view on the
importance of the otherworldly enclosed setting to the significance of Kew. This
was not taken into account by the applicant in its assessment; and it was
acknowledged that its position was inconsistent with the approach taken in these
decisions310.
328. There is no dispute that the cumulative effects of any harm arising from the
scheme must be taken into account with existing harm which arises from
development in the setting of Kew311. Not only approved, but existing,
development should be taken into account as part of that process. Nor is there
any dispute that any assessment should be carried out based on overall,
compounded harm.
329. It is also common ground that in this case there are existing detractors which
must be taken into account, in particular the Haverfield Towers and the Kew Eye.
These buildings are regrettable intrusions that puncture the visual envelope of
the Gardens in important views. The Haverfield Towers were identified in the
ICOMOS site evaluation of 2003 as having “seriously diminished the visual
experience of Kew at several points in the gardens”312. The applicant accepts
that the Towers catch the eye of visitors and weaken the sense of enclosure of
the Gardens in some views313. These undeniably include relevant views from the
Great Lawn and Kew Palace. The Kew Eye also causes what the applicant
describes as a “truly harmful” impact in the axial view of the Palace from the
Great Lawn314; which can be seen in view 16. Detracting effects are also
registered in views of the Kew Eye in views 20 and 20A, primarily in winter
views. Where the proposals cause harm in these views, the overall assessment
of compounded harm must take this into account.
330. The flaws in the applicant’s work run deeper still. The HIA that was produced
in evidence was specifically intended to incorporate the ICOMOS methodology315
for the assessment of heritage impacts, which was not taken into account in the
preparation of the THVIA316. As the HIA recognises, that guidance has been
306 Tavernor xx
307 Tavernor xx; CDA21 12.116/140
308 Tavernor xx
309 CDA21 12.103-4/138 and then 12.108/139; see too CDA26 15.8/104
310 Tavernor xx
311 Tavernor xx; Laird xx
312 CDA19 p. 109
313 Proof 4.27/67. Cf CDA25 p. 76
314 4.30/69, referring to a photo on p. 65 to the left of the photo from the gazebo. See vp 20
and 20A in the HIA (existing) pp. 74, 76 and 78, 80.
315 See CD A18
316 Tavernor xx
https://www.gov.uk/planning-inspectorate Page 58
translated into the WHS SPG and is obviously material317. The HIA expressly and
fundamentally relies on the ICOMOS guidance, which makes clear the need to
concentrate the assessment on “those attributes which give the property its
OUV”318. Impacts and their significance are to be expressed by reference to
those attributes319. This exercise is carried out by combining the value of the
heritage asset in question (itself determined by identifying attributes that convey
OUV)320, with the scale of change, to give an overall judgment on the significance
of effect, either adverse or beneficial321. As the applicant accepts322, each stage
is based on considering the effect on the attributes of OUV, having regard to the
value of the asset in question.
331. The HIA purported to apply the guidance323, accepting that “an assessment of
impact on a WHS should clearly focus on OUV and attributes that convey
OUV”324. It laid out a methodology which, as the applicant accepted325, rooted
both the value of the asset and the effect on it in an assessment of significance,
that is the attributes of OUV326. However, when considering the significance of
those effects, the applicant introduced the concept of neutral effects327 which
depended on whether the quality of the environment was diminished or
enhanced. It was agreed that this approach has no place in the ICOMOS
guidance328. The difficulty with it is that it appears to incorporate townscape
rather than heritage considerations and when assessing heritage gives a
methodological way out for impacts which the methodology otherwise roots in
significance and can only realistically be regarded as adverse.
332. There was no dispute that when relevant viewpoints are considered, they
should be treated as holding exceptional value329, having regard to the attributes
of significance in this case. Similarly, the HIA accepts that there would be
changes of up to major magnitude in these views according to a methodology
which again is rooted in the attributes of OUV. But the suggestion that the effect
in these views would be neutral bears no cogent or reasoned relationship to the
attributes of OUV, which were elsewhere recognised to afford the views
exceptional value and to which impacts were accepted to occur. These frailties
are not restricted to the viewpoints. The overall assessment of impact on the key
attributes of setting accepts, following the stated methodology, that effects on
OUV would occur, but in fact then describes these (in the case of the relationship
with the Thames) as having a beneficial effect330. None of the assessment
317 See CDB19 at p. 9, 5.2/64 and Appendix 4/122
318 CDA18 5-1/8
319 See 5-4/8; 5-8/9; 5-10/10; and Appendix 3B pp. 16-7, 7/19
320 See Appendix 3A p. 14
321 See the table at p. 9
322 Tavernor xx
323 Tavernor Appendix 2 4.11/6; 4.19/9
324 4.5/6
325 Tavernor xx
326 See Tables 4.1 and 4.2 on p. 7
327 See Table 4-4, brought into Table 4-3 as described at the top of p. 8
328 Tavernor xx
329 See views 16, 19, 20 and 20A in particular (pp. 58, 70, 74 and 78)
330 See eg 8.15/90
https://www.gov.uk/planning-inspectorate Page 59
viewpoints gives any clue as to how this judgment was reached331; but in any
event, as the applicant accepted, there was nothing at all in the analysis which
reasoned out how any such judgment could possibly have been reached by
reference to the attributes of OUV332.
333. It is not sufficient to simply refer across to other written evidence, as the
applicant’s heritage witness did in XX, when the HIA was deliberately produced
for the purpose of the Inquiry. It sets out judgments which, following the
guidance, are plainly at odds with the conclusion that no harm whatsoever would
be caused. These issues are far more than technical. Any finding that there would
be a neutral or even beneficial effect on OUV has not been explained in a context
where, in following the guidance, the assessment concedes changes in views
which must be referable to the attributes of OUV - and can only sensibly be
described as negative, as explained by HE in its own evidence333. The applicant
was unable to articulate any way in which this proposal would transparently
benefit the OUV. Reliance on what appear to be considerations simply of
townscape quality, to place a gloss on what are in truth adverse impacts on
attributes, mask the true and harmful effects of the scheme.
334. The applicant also conceded that it was influenced by the conclusions of the
Chiswick Curve Inspector that “the idea that Kew Gardens can be completely
‘protected’ from further visual intrusions of the city beyond is a battle that has
been fought and lost”334. RBGK and HRP may understandably regard the Gardens
as under siege from tall building development, but on proper analysis the
unhappy analogy drawn by the Inspector was misplaced and the MPlan is correct
to take issue with it. He was clearly referring to policy intentions for tall buildings
within the Great West Corridor, which is some distance from the application site.
335. As the Council conceded335, there is nothing in either adopted or emerging
policy to suggest that further harm to the visual envelope of Kew is inevitable.
Where there are already developments, existing and approved, which cause
harm, these cannot, as the Citroen Inspector accepted, be used to justify further
harm and should properly be treated as part of any cumulative assessment. It
would be a mistake then to somehow calibrate the impact of this scheme by
assuming that further harm is inevitably on its way.
336. There is no dispute of course that the development would avoid direct harm to
the fabric of the place including its botanic collections; and it would leave some
views and aspects of significance unharmed. HE is not alleging that a tipping
point has been reached at which any further development would cause
substantial harm to the OUV of Kew.
337. An objective and fair analysis of harm proceeds on a rigorous understanding of
the significant and integral contribution made by setting to the significance of the
331 Se vp 12-15 (12) pp. 42-3 (13) pp. 46-7 (14) pp. 50-1 (15) pp. 54-5 (16) 58-9; or (20)
pp. 74-5, or (20A) 78-9
332 Tavernor xx
333 That evidence explains how judgments were reached in the context of the ICOMOS
guidance: see Clark at 6.2.141/89. The evidence includes criticism of the assessment in the
original THVIA: see 6.2.156-170/93-7
334 CDA21 12.107/138
335 Baker xx
https://www.gov.uk/planning-inspectorate Page 60
WHS and Kew Palace in particular. It recognises, as the SoS has previously, that
development in the setting of Kew is a threat to its integrity336 and that “if one
accepts that part of Kew’s significance as a designated heritage asset is its status
as an escape from the city, then any intrusion by that city must be harmful”337.
It takes care to specifically relate impacts to the attributes of OUV or to
significance. It proceeds on a correct reading of the MPlan as all that we have to
explain the contribution that setting makes to the significance of Kew. And it
does not assume that further harm to Kew from tall building development in its
setting is somehow inevitable, so as to qualify any assessment of harm that
might arise from this scheme.
338. These proposals would not relate well to their context; but would rather
impose themselves onto it, and into it. They ignore the explicit warning issued by
the SOUV about threats to Kew from development outside its buffer zone, which
go to the integrity of the designated site. They would clearly disrupt the sense of
enclosed otherworldliness that is vital to the setting of the Gardens. They would
visually compete with Kew Palace, in what are agreed to be exceptional views
from the Great Lawn. They would introduce a newly dominant urban influence,
detracting from the riverine setting of the Palace and this area of the Gardens.
The sheer height and breadth of the development, described as a “massive wall”
by the Council338, would be particularly prominent in winter views.
339. The proposals would intrude into the crucial sense of bounded enclosure in the
backdrop to the Great Lawn, harming the sense of an otherworldly escape from
urban life that is integral to the OUV of the WHS.
340. As HE’s witness explains in her evidence, views 16 and 19 (in both the THVIA
and the HIA) are of particular relevance here, albeit that they do not represent
the entire area of the Lawn from where the damaging effect of the proposals
would be perceived. They are not specific formal views but, as explained above,
they are identified as important in the MPlan, reflecting the wider importance of
open views from the Great Lawn as part of an evolving relationship between the
architecture of the site and its role in the designed landscape. Both views
unmistakably convey the sense of enclosed otherworldliness that is crucial to
OUV, as described in the MPlan, through the largely unbroken skyline which
enables the visitor to appreciate and understand the design intentions of the
landscape architects who worked there. They confirm the sense of strong internal
views across the bounded open space, providing the backdrop to key views over
what survives of the Great Lawn. They are accepted to be of exceptional value
with a very high sensitivity to change339.
341. These views demonstrate a considerable increase in urban form introduced to
the perimeter of the Great Lawn by the scheme. The buildings would read as a
single large residential block, a hard mass overtopping the tree line in an area
which is currently clear sky between the Palace and the Kitchens, bringing the
urban world further into this semi-naturalistic landscape and weakening the
atmosphere of otherworldliness and retreat. The ability to appreciate the design
intentions and experience of the Gardens would be clearly diminished. This harm
336 CD A15: 2.1, 2.4, and p. 11
337 Chiswick Curve decision, CDA21 12.108/138
338 CDA29 7.96
339 See the IA at pp. 58, 70
https://www.gov.uk/planning-inspectorate Page 61
would be experienced in kinetic views across the Lawn, including those which
would arise between the axial view 16 and view 19, as well as other views to the
west of each340.
342. The applicant accepts that there is a minor impact from view 19, but this is
difficult to square with the moderate effect in view 16. As the applicant now
concedes, the minor adverse impact is directly referable to key elements of how
the setting of the WHS contributes to significance – impact on a largely unbroken
skyline and the associated effects on the sense of boundedness and enclosure341
- which indicates that in truth harm is being caused342. The applicant provided
no reasoned basis for any “neutral” effect on significance, resulting from a wider
methodological flaw explained above. Rather than being integrated into the
existing tree line, the extensive breadth of the scheme would appear above it in
winter views; and in any event the effect is not simply about the question of
height relative to the trees in the view. In view 19 the scheme would take up the
entire width between Kew Palace and the tree in the left of the view, beyond the
localised planting near the Kitchens. In view 16 the buildings would also take up
a noticeable breadth of space and the suggestion that the Kew Eye provides a
“full stop” obviously involves relying on acknowledged harm to calibrate
downwards the impact of new development in this view. The conclusion that no
harm arises is also inconsistent with the crystal-clear approach to intrusion taken
by the Chiswick Curve and Citroen Inspectors.
343. The proposals would visually challenge and jar with Kew Palace in important
views across the Great Lawn, causing harm to the iconic architectural legacy in
its historic landscape setting.
344. The impact on Kew Palace in views from the south is also shown in views 16
and 19. Such views are of critical importance to both the OUV of the WHS and
the significance of the Palace, as they confirm the historic relationship between
Palace and the palimpsest of landscape design since the early 19th century, as
well as allowing an appreciation of the Palace within the wider sense of
otherworldliness and enclosure of the gardens. In the agreed terms of the MPlan,
setting contributes here by providing the backdrop to “key views” from the Lawn
of architectural icons on the site including Kew Palace as a key landmark in this
area of gardens. Since the demolition of the White House, the Palace has taken
its own comparable place in establishing for the visitor the domestic focus of the
royal family and their association with the Gardens. It is now part of the designed
landscape, as the Chiswick Curve and Citroen Inspectors understood. The
applicant accepts that views 16 and 19 are also “exceptional” and “highly
sensitive” because of their relationship with the Palace.
345. The scheme would introduce a clear sense of visual competition with the
Palace, drawing the eye of the viewer, diminishing the appreciation of the Palace
and detracting from its relationship with the wider historic landscape setting. The
buildings would read as a hard backdrop, drawing the urban environment of
London into the WHS, their close visibility, height, spread and form diverting
340 Clark eic
341 Tavernor xx
342 Tavernor xx
https://www.gov.uk/planning-inspectorate Page 62
focus from the Palace and its connection to the carefully composed historic
landscape.
346. There is no credible case that the scheme “neutrally”343 avoids harm here. The
effects are again clearly referable to the key elements of setting identified in the
MPlan and are manifestly adverse. The applicant (and the Council) rely on the
appearance of these buildings to the side of the Palace rather than directly over
the roofline to temper any impacts. But it is agreed that harm through
competition and distraction in the view is not only caused by development atop
an important building in the view. And the claimed distinction with other tall
buildings over the Orangery, on the grounds that their top and sides intervene in
the skyline, does not stand up to scrutiny. The proposed buildings only neglect to
present their sides in views because they take up the entire space between the
treeline and either the Palace itself or other harmful development in the form of
the regrettable Kew Eye. Neither their detailed design, nor the gaps between
them344, would be readily discernible in these views, the dominant effect arising
from their intrusive spread in the skyline.
347. The proposals would introduce a newly dominant and harmful urban
development into the riverine setting of Kew Palace, in views north from the
Palace.
348. Views 20, 20A and 21 are of particular relevance here, which demonstrate the
setting as outlined above and the impact of the proposals as the viewer moves
around the outside of, and within, the Palace. The scheme would cause harm by
introducing a newly dominant urban influence into the riverine setting of the
WHS, as perceived from both within and outside Kew Palace.
349. As HE’s witness explained, view 20 is an axial view from the centre of the river
facade over the late twentieth century formal garden. Although the river itself is
not visible in this view, the open space of the river, the trees lining the bank, and
the trees of the ait, are all perceptible in this location. The Haverfield Estate
towers are to the right of this view, and other lower and more distant modern
buildings are partially visible in winter. Due to its sheer proximity, width and
height, the proposals would be extremely dominant in this view in the winter
months, creating a hard backdrop to the trees, diverting the eye from the
relationship with the river and bringing the sense of the city much closer to the
site than at present. In summer, despite a degree of containment offered by the
trees, it would still be strongly perceptible across a broad area of the view.
350. In View 21, from the mound to the immediate north east of the Palace, the
scheme would rise several storeys above the treeline across this view, reading as
a solid wall of development. View 20A demonstrates the extremely high visibility
of this development from within the Palace, when a greater portion would be
visible above the treeline of the ait and riverbank. The development would
replace the trees and the water as the dominant feature of these views.
351. These impacts would be considerable and harmful. The present visibility of
Brentford is either considerably softened by planting or remains lower set in the
views, a low-lying neutral influence which enables the viewer to appreciate the
343 HIA
344 Morris xx
https://www.gov.uk/planning-inspectorate Page 63
riverine, semi-rural character of the scene in a form that is closer to the original
design intent of the Gardens and the sense of rural retreat that attracted the
royals here, without significant interruption from large-scale development. There
remains a legible visual relationship between the Palace and the wider setting,
deriving from the architecture of this elevation to the Palace, its historical links
with the river and the intended views towards it from the upper floors. The
interlude of the gasworks does not serve as a precedent for further harm and
there is no evidence of buildings of the bulk now proposed ever having existed
within the setting so as to contribute to heritage significance in a positive way.
Neither the modern gardens nor the embankment materially weakens that
relationship.
352. Again, the approach of the applicant to these views is entirely implausible. The
conclusion that there would be benefit to the relationship within the Thames is
wholly unsustainable. The HIA regards these views as exceptional and of very
high sensitivity. It records what, on its own methodology, should be major
impacts on the attributes of OUV in these views345. It is difficult to see how
these could be beneficial, or even neutral when the identified effect is, as the
applicant accepted346, patently referable to significance. It involves imposing a
strikingly substantial form of new urban development which draws the eye from
the relationship between the Palace and its semi-rural riverine setting. The very
large, urban scale of the proposed development would introduce a sharp
departure that shifted the focus in views out of the WHS, away from the
waterway and the verdant features which surround it, towards assertive modern
structures imposing themselves onto the tree-lined river, weakening the
association of the Palace with the river as a visually appealing natural landscape
which reflects the original design intent of the Gardens. The approach of the
applicant implies that any building of architectural quality on the Brentford side of
the river would be justified, simply because there is built development there, but
this ignores the generally low-set nature of what is there and how it enables
setting to make an important contribution to significance that these large-scale
buildings would undermine.
353. The proposals would cause further harm, to the setting of the Royal Kitchens,
by interrupting their relationship with the Palace and distracting from the
appreciation of the architectural qualities of the building in its enclosed Garden
setting.
354. View 19 shows that the scheme would intrude prominently into the gap
between Kew Palace and the Kitchens, disrupting the ability for visitors to read
the Kitchens as part of the domestic focus of the royals in this enclosed part of
the Gardens. From other positions, including view 16, the scheme would directly
back views of the chimneys, changing their relationship with the treeline and
diminishing the ability to appreciate their form.
355. The proposals would result in compounded harm by exacerbating the effects of
both existing and approved development in the setting of the WHS and Kew
Palace.
345 See the judgments on moderate impacts under magnitude of change, which are then
applied to the sensitivity assessment in Table 4-3 on p. 8
346 Tavernor xx
https://www.gov.uk/planning-inspectorate Page 64
356. There is no debate about the relevance of cumulative harm; nor as explained
above is there any dispute that both the Haverfield Towers and the Kew Eye
would be detractors in the important views, the effect of which would be
compounded by any harm resulting from the proposals.
357. If, in view 20, harm arises from the Haverfield Towers, there is no sense in
any suggestion that the proposals would themselves avoid harm. The form of the
Haverfield Towers is taller, and they are seen further away, but it is far-fetched
to suggest that the viewer would distinguish them from the proposals and regard
the latter as having no similarly adverse effect on the setting of the Palace. The
Kew Eye has a much more limited effect, but is harmful nonetheless. The Kew
Eye juxtaposes very poorly with the Palace in views 16 and 19 from the Great
Lawn, and together with the scheme would exacerbate the sense of built form
intruding into the skyline and enclosure of the Gardens.
358. The proposals would harm the significance of the Kew Green Conservation
Area, by intruding into its semi-rural and river-dominated character.
359. The proposals would lie only around 60m from the border of the conservation
area and rise up to three times the height of the present buildings on site along
its width. They would impose themselves as noticeably the largest buildings on
the riverside, as seen in views 12 and 13347, sitting close to the water and rising
considerably above the tree line and open sky as a broad, bulky, block of new
urban development. There would be a dwindling sense of visual escape from its
introduction of a progressively forceful presence in views travelling along an
extended portion of the riverside path. The buildings would markedly limit the
experience of a tranquil landscape in this stretch of the river.
360. These impacts would not be perceptible from the Green itself. This appears to
lie at the heart of the difference between HE and the Council in particular. But as
the Council accepted348, there is nothing in the conservation area appraisal to
suggest that the semi-rural riverside character of this part makes significantly
less of a contribution to significance than the undoubted qualities of the Green.
By causing harm to the riverside as a foil to the Green, the development would
cause harm to the overall significance of the conservation area.
361. The proposals would cause a high level of less than substantial harm to the
OUV of the WHS and the significance of Kew Palace, and a medium level of harm
to the significance of the Royal Kitchens and the Kew Green Conservation Area.
362. Each case must of course be considered on its merits, but contrary to the
suggestion of the applicant, the approach taken by HE here is broadly consistent
with the assessment of the harm in the Citroen decision. There, the SoS placed
impacts in views from the Great Lawn in the moderate category of less than
substantial harm. The impacts plainly related to a different building, but the
elements of setting that were affected – iconic architecture, views from the Great
Lawn towards a largely unbroken skyline and a sense of otherworldliness and
enclosure349 – are relevant here too. Although this scheme would appear to the
side of the Palace, its four visible storeys would not be significantly lower than
347 HIA pp. 45 and 49
348 Laird xx
349 See CDA26 15.8-10/104
https://www.gov.uk/planning-inspectorate Page 65
the six of the Citroen scheme, and importantly they would be much wider and
appear at a much closer distance (Citroen is at c. 1.2km)350. To that harm must
be added the separate source of considerable harm in views to the north of the
Palace, from buildings which could not be much closer to a building of quite
exceptional importance both to the Gardens and in its own right. Taking these
two together, it is entirely reasonable, having regard to the Citroen decision, to
consider that the harm is greater than moderate. When existing detractors are
also taken into account on a cumulative basis, this confirms the view that the
harm would be at a high level; and this is underscored by the further effects of
the Citroen scheme.
363. The cumulative effect of the Citroen scheme itself must also be considered.
This is not a question of the Citroen scheme (or others above the roofline of the
Orangery) also being visible in important views identified in this case. Nor is
there any neat mathematical formula to calculate how harm that was considered
to arise in that case would accumulate with the harm that would be caused here.
But as is now common ground, the kinetic experience of the Great Lawn351 and
its important open views towards the iconic architectural legacy at Kew means
there will be an additive source of harm appreciable by visitors to the Gardens as
they walk within a principal area of the Entrance Zone (visited by 2m visitors a
year, with 300,000 visiting Kew Palace)352. There is no dispute that, the overlay
of important viewpoints of the respective schemes353 shows, there is available a
kinetic series of views on a route across the Great Lawn354, including any journey
between and near views 16 and 19, which will take in tall buildings progressively
puncturing the visual envelope of the Gardens. The prospect of what the SoS
regarded as the more than moderate harm being perceived on part of that
journey, in views towards the Orangery, needs to be taken into account if it is
concluded that harm would be caused by these proposals; harm which itself is
justifiably pitched above moderate and should recognise the Kew Eye and
Haverfield Towers as compounding factors in views of the scheme.
364. Despite suggestions in written evidence from the applicant, there is no basis
for relying on planting to valorise the harm that would be caused by this scheme.
Although the MPlan refers to further screening, RBGK have made it clear that its
role and extent would be limited355 and the Plan itself cautions that “use of trees
as screening cannot be relied upon in the long term to protect against
inappropriate external development which if not managed sensitively, will
continue to erode the setting of the site”356. Kew has previously explained why
this is the case357 and this was accepted by the CC and Citroen Inspector’s, as
well as the SoS.
365. It would be wrong to place the onus on Kew to address the harmful
consequences of development carried out away from the Gardens. As HE
350 Clark chief and see CDA26 IR p. 24 fn 128
351 As foreshadowed in the example shown in green in Figure 8-1 of the HIA
352 Drury 4.6.15/55
353 See Appendix 1.6a, which includes viewpoint 30 from Citroen with viewpoints 16 and 19 in
this case
354 See a similar Broadly foreshadowed in a route Figure 8.1 of the HIA
355 See CDA26 10.30/95
356 CD A25 9.3.2/57
357 See CDA21 7.99/63
https://www.gov.uk/planning-inspectorate Page 66
guidance confirms, planting is no substitute for development that is well
designed, and well located358. No weight should therefore be given to any
prospect of planting to screen the impacts from this scheme.
366. HE acknowledges that the harm it has identified must be placed in a balance
with the claimed benefits of the scheme, the weighing of which it leaves to the
judgment of the Inspector and the SoS, along with the assessment of whether
the proposals comply with the development plan as a whole. HE’s witness
accepted that if the public benefits outweighed the harm then the proposals
would comply with the development plan. But when reaching that judgment, it is
necessary first to identify how harm feeds into the overall policy assessment.
367. These proposals would conflict with local and strategic policy designed to
protect against harm to heritage assets, in particular WHSs. They would breach
policies 7.8 and 7.10 of the published London Plan359, as well as policy CC3(i) and
(p) and policy CC4 (d) and (i) of the Hounslow Local Plan360.
368. As the Council accepts361, policy CC1 expects proposals to have regard to the
Urban Context and Character Study and to respond to the wider context and
history of the area. Although the Study places the site within a much wider area
with “some suitability” for tall buildings, there is nothing in it which suggests that
any particular site, including this one, will be suitable for tall buildings362. Policy
CC3 confirms363 that an assessment of a character area as having any degree of
suitability for tall buildings should not be taken to imply that every location is
suitable. There is nothing in the Study anyway which demonstrates even a
cursory assessment of the extent to which tall buildings might be suitable in the
setting of Kew Gardens364.
369. The Council accepts that the support for development under policy IMP2365 and
Site Allocation 11366 is qualified by the need to have regard to the wider context,
including Kew Gardens367. Thus, the policy requires comprehensive development
to avoid the “individual sterilisation of parts of the site,” not to require or invite
any particular scale of development. The stated need is to “optimise” not
maximise residential development, which again confirms the need for any
scheme to be appropriate in its setting368. As the Council agreed, the allocation
does not assume or imply the acceptance of any level of harm to Kew Gardens or
Kew Palace369. In any event, as the Council also agreed370, any support for
redevelopment derived from the allocation must be read subject to the
358 GPA3, CDA5, 40/14
359 See CDB18 pp. 295 and 299
360 See CDB4 pp. 140-1
361 Baker xx
362 Baker xx
363 CDB4 p. 138
364 CDB4 p. 138
365 P. 228
366 P. 257
367 Baker xx
368 Baker xx
369 Baker xx
370 Baker xx
https://www.gov.uk/planning-inspectorate Page 67
application of other policies in the Plan, including those directed at the protection
of the WHS and other heritage assets.
370. As for draft policy, the emerging Local Plan Review (LPR) is at an early stage
and can only be given very limited weight. The draft allocation for the site371
explicitly refers to the need for impacts on Kew to be assessed, thereby engaging
heritage policies. In so far as other elements of the draft seek to reflect the
support of the Council for the current scheme, they can be given little weight
given that the proposals are now before the SoS.
371. The proposals would conflict with heritage policies D9(e), HC1 and HC2 of the
IPLP, all of which should be given significant weight given that they are not
covered by any direction issued by the SoS. This IPLP conspicuously gives
discrete emphasis to the protection of WHSs, by way of what the Panel describes
as an active response to ICOMOS concerns about preventing negative impacts on
the OUV of London’s WHSs. The supporting text to policy HC2 advises that the
surrounding environment of WHSs must be carefully managed to ensure that
OUV is protected whilst the wider area evolves. The purpose of the policy is
therefore to ensure that in London, change from new development should only
occur where harm to WHSs can be avoided. What the Panel described as bespoke
policy for WHSs in London should be given substantial weight in this context.
Policy also regards the MPlan as material and the scheme would conflict with its
objective to avoid further harm to OUV372.
372. To the extent that some policy in the development plan invites any harm to be
weighed against public benefits, this can only import the same exercise as is
required by the Framework.
373. HE does not conduct an overall assessment of those benefits. It is a matter
ultimately for the SoS whether the harm caused by the height and bulk of this
scheme is justified by the provision of housing (when there is a five-year supply),
in large part to pay for an arts centre a short walk away (when there is an
existing one on the site). However, the Inspector and the SoS should exercise
great care and rigour when striking that balance.
374. The applicant accepted that if its approach to heritage harm is wrong, that is
the end of its case on the weighing exercise373. It found no harm, or what would
be at worst the lowest possible level of harm. Their conclusion on the balance
depended on that judgment. If that judgment is misplaced, their claims about
how the balance should be struck would also be misplaced. The Council resolved
to approve the scheme on the basis of advice from officers that the harm would
be limited374. That, it now accepts, underplayed the harm375. For the Mayor, the
harm was sufficient to mean that he only supported the scheme, including the
relocation of the arts centre, when an extra thirty affordable homes were
371 Appended to Baker supplementary proof
372 CDA25 13.4.1/35. See too the Thames Landscape Strategy which advises that
regeneration schemes should “avoid visual intrusion into the massing of Brentford Waterfront.
Prevent any further flat-roofed, high-rise buildings from intruding into the Brentford
Waterfront massing”: p. 369
373 Horne xx
374 CDC29 7.100
375 Laird xx
https://www.gov.uk/planning-inspectorate Page 68
provided376. But there is no explicit indication in the reports to him that the harm
in views from Kew Palace was considered.
375. The identified harm to the heritage context of the scheme inevitably qualifies
its claimed design quality377. This was the approach taken in the Citroen
decision378 and it reflects the understanding in policy that exemplary design
respects context, which must include heritage context. Here the harm caused by
the height and bulk of the scheme would not be materially tempered by its
architectural expression or by gaps in the buildings, which would not be apparent
in mainly distant or oblique views.
376. HE does not consider that any heritage benefits would arise from the scheme
or the associated redevelopment of the BPS site. The existing building there is
over-scaled and detracts from the historic character of the St Paul’s Brentford
Conservation Area, but the massing of the new six-storey scheme would still be
considerable, ranging across much of the site and obscuring views of the locally
listed St Paul’s Church, one of the focal points of the area, as well as crowding
the Beehive pub next door, another locally listed building. There would be no
material change to the assessment of harm resulting from the linked
development of this scheme.
377. The overall harm must be weighed correctly in the balance. It is wholly
insufficient to simply ask whether granting permission places Kew at the tipping
point into substantial harm. That approach only operates effective control over
harmful development when very much significance has already been lost, and
would undermine the fundamental rationale for heritage policy.
378. The proper application of that policy (and section 66 of the Planning (Listed
Buildings and Conservation Areas) Act 1990) means that where any harm is
found, the decision maker is not entitled to give it such weight as he thinks fit;
rather it must be given considerable weight379. The strong presumption against
harm to the setting of a listed building remains380, and in policy terms any less
than substantial harm cannot be treated as a less than substantial objection381.
As the Framework advises, great weight should be given to the asset’s
conservation; and the more important the asset, the greater the weight should
be382. This does not mean that the weight to accord to harm is uniform. It will
depend not only on the extent of harm, as well as the heritage value of the asset
in question383. But it must recognise that any harm is given considerable weight.
379. In this case Kew is laden with the rarest and most important designations. The
proposals would cause a high degree of less than substantial harm to heritage
significance of a national and international register and should be accorded very
substantial weight. Planning permission should only be granted if the
376 See CDC27 and 31
377 See the conclusion of the Citroen Inspector at CDA26 15.58/114; see too DL 22/4
378 CDA26 15.58/114 and 22/4
379 See the East Northamptonshire case at CDA 22a at [22]
380 At [28]
381 At [29]
382 CDA1 193/55
383 See CDA22a at [28]
https://www.gov.uk/planning-inspectorate Page 69
countervailing benefits can clearly and convincingly be demonstrated to be
greater.
The Case for Historic Royal Palaces (HRP)
HRP was not represented by Counsel and did not seek to cross-examine
witnesses for the other parties. Its case was put by Mr Drury, who produced the
written evidence and was able to answer questions through cross-examination.
What follows is the case for HRP, largely as expressed in closing submissions.
380. HRP is the independent charitable trust charged with the ongoing care and
presentation of the unoccupied royal palaces, including Kew Palace. Its evidence
to this inquiry has therefore been concerned primarily with the effect of the
proposed development on the setting and significance of Kew Palace, in its
context of the Royal Botanic Gardens, Kew (RBGK).
381. Kew Palace is a mercantile villa on the Thames, built of brick c1631 in the
'artisan mannerist' style, on the site of a yet earlier courtier lodging. Its
subsequent inclusion as one of several residences in the royal landscapes at Kew,
and its role in the evolving landscape of RBGK, contribute additional layers of
significance. The exceptional national and international heritage significance of
the house and the gardens have been acknowledged by all parties.
382. The Palace is a building of exceptional architectural and historic interest, an
exemplar of its type with important associative historic interest from the royal
occupation period. It is listed in grade I, the highest level of national significance,
limited to the most significant 2.5% of English listed buildings.
383. The Palace is nested within the landscape of the Gardens, also designated at
the highest national landscape level, but importantly inscribed on the World
Heritage List for its OUV. The palace contributes strongly to the 'iconic
architectural legacy' which is a key attribute of the OUV of the WHS.
384. It draws its landward setting from part of the Gardens' 'rich and diverse
historic cultural landscape providing a palimpsest of landscape design', becoming
the focus of the extended Great Lawn following the demolition of the White
House in 1802. The effect is of a small-scale parkland setting, with glimpses of
subsidiary surviving former royal buildings to the west.
385. The north front of the palace faced an open vista of and across the river, as a
point of arrival, with the town of Brentford by 1631 long established on the
opposite bank. This connection with the river as much as the land as a point of
arrival was expressed in its design, the river front including a balcony over a
loggia within the centrepiece. During the 18th century there was a short tree-
lined avenue between house and river, flanked by trees along the riverbank, but
with a substantial gap between the avenue and the house384. By 1829 the
avenue had gone, and a wide gap in the riverbank trees opened up so that the
whole façade was visible from the river385. The trees were 'stripped up' to filter
rather than block light and views386.
384 Drury, Appendix 3, p22
385 Drury, Appendix 2, p3
386 This is particularly evident in the 1829 panorama. Drury, Appendix 2, p3
https://www.gov.uk/planning-inspectorate Page 70
386. Brentford was never part of the celebrated 'Arcadian Thames' landscape of
villas and their gardens in a rural landscape, but it was not incompatible with it.
It gradually became so through the 1810s and 20s, as polluting industry
developed in the Georgian town.
387. The Samuel Leigh 1829 panorama387 shows that the view northwards from the
Palace over the Thames was to a Georgian town of houses, hotels, warehouses
and so forth, up to about five domestic storeys. This was visually punctuated by a
smock mill and chapel, but the skyline was already beginning to be pierced by
industrial chimneys. The initial construction of the gas works in 1824 led to
disaster. Its expansion in stages westward to embrace the proposed development
site continued until 1927.
388. The gas works was a terrible blight on Kew Gardens and Kew Palace.
Demolition of the gas works around 1965 led, by 1968, to designation of its site
as public open space in the development plan. This opened the way for
Watermans Park, including the Arts Centre, in the early 1980s. GLC planning
policy imposed a three-storey limit on buildings in the riverside zone, including
the development site. The area to the north was redeveloped with mid-rise
housing, an urban scale compatible with the setting of the palace388, providing
(with the development site itself), a neutral backdrop to views from the palace.
389. Two recent public inquiries, the Chiswick Curve and Citroen Garage, have
concerned the effects of tall building proposals on RBGK. Both schemes, like
existing intrusive elements affecting the setting of the Palace, particularly the
Kew Eye, are much taller than the proposal before this inquiry, and 1km or more
distant. The current proposal is different in nature, in absolute terms lower, but
much closer, only 300m distant across the river.
390. It would also be different in effect. The eye distinguishes depth of field, as the
Inspector in Citroen noted; perception at 300m distance is sharper and more
intrusive than at 1.2km389. Rather than manifesting only as the disembodied top
of a distant building, its three-dimensional form, its size and scale would be
immediately evident from views from the north side of Kew Gardens and the
Palace. Where and how the proposed development meets the ground would be
evident to an observer from Kew, so its appearance in views of the south side of
the Palace would subsequently be perceived as visible manifestations of parts of
the massive, proximate whole. Its presence would be felt.
391. During this Inquiry, there has been much debate about the correct approach to
assessment of harm to significance, below the level of 'substantial harm', an
impact which it is common ground would not be caused by the proposal before
this Inquiry. The categorisation of harm as 'substantial' or 'less than substantial'
in the Framework has led logically to the concept of making a value judgement of
where harm lies on a notional scale of 'less than substantial', from near zero at
the bottom to just less than substantial at the top.
392. However, applied to a complex heritage asset of high significance, the effect of
serious diminution of or even loss of one aspect of its significance, leaving
387 Drury, Appendix 2, p3
388 Drury, Proof, 4.4.6-14 & Appendix 2
389 Citroen (CD A26, IR6.41 and note 128
https://www.gov.uk/planning-inspectorate Page 71
several other attributes intact, would result in that loss ranking very low on a
notional scale embracing all aspects of the asset's significance390. For an asset
on the threshold of designation, the serious diminution of or loss of the
equivalent aspect would occupy more of the scale of total significance, perhaps
bringing it close to 'substantial'.
393. That would be a perverse outcome, making harm to particular strands or
attributes of significance of the most important heritage assets appear to be of
far less consequence than similar interventions in assets of more modest
significance. But the factor absent from this notional calculation is the level of
significance of the asset; as the Framework states: great weight should be given
to the asset's conservation (and the more important the asset the greater the
weight should be)391. It follows that greater weight should be given to the
consequences of a similar impact on an asset of the very highest significance
than on one of modest significance.
394. The ICOMOS Guidance on Heritage Impact Assessment392, and the
domesticated version which forms the WHS SPG393, like all formulaic approaches,
is an aid to assessment, not a calculator. But it does factor the significance of the
asset into the assessment. On the ICOMOS scale, the magnitude of the impact of
the proposed development is moderate394, and the adverse impact on aspects of
OUV are assessed as moderate to large. As the matrix in the written evidence of
HRP shows395, the same effects if Kew Palace were to be merely of 'high
significance' (in the WHS SPG, roughly equating to grade II listed buildings),
rather than contributing to OUV, the effect would be assessed as slight to
moderate.
395. Within the notional linear scale of harm, if harm to heritage significance is
considered as falling on a common scale applicable to all heritage assets (which
is the logic of the ICOMOS method), then negative impacts on the significance of
assets of the very highest level will lie within a relatively narrow band towards
the top of the scale.
396. By this means the ICOMOS guidance incorporating the significance of the asset
from the outset, and the Framework bringing it separately and successively into
the decision-maker's judgement, can be reconciled. The government's duty of
care under the World Heritage Convention, including cognisance of the ICOMOS
HIA Guidance, can indeed be met through the operation of the Framework396.
397. The impact of the proposed building would be greatest on views north from
Kew Palace, over an open and expansive view over the river, particularly from
the principal floor's northern high-status rooms illustrative of royal use, its axial
balcony, by definition an intended viewpoint, and from the second floor rooms397.
390 As, in terms, Mr Harris put it to PD in XX
391 NPPF, CD A1, para 184
392 CD A18
393 CD B5
394 CD A18, p23
395 Drury, Proof, 6.1.3, p72
396 As noted in Citroen, IR 6.24, note 112
397 Drury, Proof, 4.4.16-19
https://www.gov.uk/planning-inspectorate Page 72
398. Through the dominance and bulk of the new development, the Palace would
feel insignificant rather than important. Development would diminish people's
ability to appreciate its architectural and historic significance, and fundamentally
change the relative openness of the view across river. The impact of this
moderate change would be ICOMOS large adverse.
399. On the south side, the Palace is framed by and integrated with the boundary
planting forming a composed backdrop to the north end of the Great Lawn and its
walks. In views of the Palace from the Great Lawn it would, in winter, appear
against a backdrop of brick building, rather than remain the unchallenged focus
of the lawn setting398. The impact of this moderate change would be ICOMOS
moderate adverse.
400. In summary, and informed by the evidence presented to the inquiry, in HRP's
view the impact would translate into the moderate range on the Framework’s
notional scale of less than substantial harm, with views from the Palace
northwards being above the median and views of it from the Great Lawn being
below it.
401. HRP's concern is not with the principle of development of the site, nor with the
proposed architectural expression of it, but its height and bulk. A development
which returned to something inspired by the height and scale of the pre-
gasworks townscape, not materially intruding in views from the south, of high
architectural quality in its context, could represent an enhancement of the setting
of the Palace.
402. The justification put forward for this scheme is essentially that the scale of
development proposed, which would harm views from the WHS, on a site which
generates substantial value at its higher levels from its views of the WHS, is
compensated by it enabling, principally, the delivery of a replacement arts centre
and a quantum of affordable housing on a town centre site (BPS site) linked by a
S.106 agreement. The other benefits would substantially be expected of any
redevelopment of the site.
403. HRP notes the further assurance that has been given in relation to the tenure
of the Arts Centre to be secured under the s.106 agreement399. It is accepted
that the scheme remains at the margins of viability400, so there is no realistic
scope for reducing the volume of development if the benefits are to be delivered.
404. The proposition is thus to deliver two public benefits at the expense of a third,
existing, public good. At best, the application site and the BPS site, taken
together, have the potential to deliver only one of those benefits without harm,
or perhaps even a benefit, to the third public good, being conservation of the
historic environment.
405. It is, of course, for the SoS, informed by the Inspector's recommendations, to
decide whether the harm that would be caused to exceptional heritage assets,
which must attract great weight in the balancing exercise, is outweighed by the
very different public benefits.
398 Drury, Proof, 4.5.1-3; particularly in View 19
399 CD C32, Schedule 7
400 Horne, Supplementary Proof, Appendix A
https://www.gov.uk/planning-inspectorate Page 73
The Case for Royal Botanic Gardens Kew (RBGK)
The case was put in writing only and the author did not attend the Inquiry. As
such, it is untested and must be considered on that basis. RBGK was not
represented by Counsel, did not seek to test the evidence of the other parties
and did not play an active role at the Inquiry. What follows is the case for RBGK,
largely as expressed in written evidence.
406. The Royal Botanic Gardens, Kew WHS was inscribed onto the World Heritage
List in 2003 under three relevant criteria:- Criterion (ii): Since the 18th century,
the Botanic Gardens of Kew have been closely associated with scientific and
economic exchanges established throughout the world in the field of botany, and
this is reflected in the richness of its collections. The landscape and architectural
features of the Gardens reflect considerable artistic influences both with regard to
the European continent and to more distant regions; Criterion (iii): Kew Gardens
have largely contributed to advances in many scientific disciplines, particularly
botany and ecology; Criterion (iv): The landscape gardens and the edifices
created by celebrated artists such as Charles Bridgeman, William Kent, Lancelot
'Capability' Brown and William Chambers reflect the beginning of movements
which were to have international influence.
407. A retrospective Statement of OUV401 for the RBGK was adopted in 2010. This
places very considerable emphasis on the historic designed landscape and
architectural legacy of the Gardens.
408. A series of five attributes have been identified that summarise and describe its
OUV, these are:
i) a rich and diverse historic cultural landscape providing a palimpsest of
landscape design;
ii) an iconic architectural legacy;
iii) globally important preserved and living plant collections;
iv) a horticultural heritage of keynote species and collections;
v) key contributions to developments in plant science and plant
taxonomy.
Attributes 1 and 2 are of particular relevance in this appeal.
409. The 2020-25 WHS MPlan402 was adopted by the WHS Steering Group403 in April
2020. This plan supersedes and replaces all previous versions.
410. Attribute 1 states404 that: “The Royal Botanic Gardens, Kew tells the national
story of our historically changing relationships with plants, within the context of a
multi-phase historic designed landscape. From internationally influential gardens
by pre-eminent 18th-century designers for their royal clients; to royal interest in
plants as a tool of empire, under George III and Joseph Banks; to the struggles
of the Victorian Hookers to establish botany as a widely respected science with
401 CD A8
402 CD A25
403 The WHS Steering Group includes the London Boroughs of Hounslow and Richmond upon
Thames, Greater London Authority, Historic England, Historic Royal Palaces and Royal Botanic
Gardens, Kew
404 See Para.3.2.1 of the ManPlan
https://www.gov.uk/planning-inspectorate Page 74
economic power; to the modern organisation with international plant
conservation at its core. Every phase of development has been accompanied by
seminal landscape design by internationally renowned landscape architects,
illustrating significant periods in garden design from the 18th to the 20th
centuries. Always building on the pre-existing landscape, sometimes
incorporating what went before; sometimes sweeping everything away in their
path. The resulting rich and diverse cultural landscape tells a unique story with
international relevance, a palimpsest of landscape design reaching from royal
pleasure garden roots alongside the Arcadian Thames to modern botanic garden.”
411. It identifies that key surviving physical features of the property’s historic
cultural landscape include: “i) The Victorian garden lay-out designed as a
collaboration between Sir William Hooker, William Nesfield and Decimus Burton,
with its set-pieces around iconic buildings, and vistas and promenades stretching
across the landscape; ii) Remaining aspects of William Chambers ‘Anglo-Chinese’
garden style, particularly the Great Pagoda; iv) Strongly enclosed sense of
‘otherworldliness’ within the high walls and tree shelterbelts: v) Its relationship
with the River Thames, and in particular with surviving elements of the Arcadian
landscapes of the Thames; vi) Ability for visitors to roam freely across the
landscape to encounter set key views and to develop personalised experiences of
the gardens, landscape features and iconic buildings contained within…”
412. Importantly, Section 3.2.1 goes on to state that in relation to Integrity (a key
aspect of OUV): “The property’s integrity is directly dependant on the historic
designed landscape, its features and character, remaining intact within the site
and its buffer zone, and being unimpacted by developments without. The
‘otherwordly’ character of Kew Gardens is directly dependant on the property’s
visual envelope being conserved and preserved, unpunctured by external
features. Maintaining the relationship with the River Thames at key points within
the landscape is also important to the integrity. The site’s integrity is already
impacted by some tall buildings and is at risk of being significantly diminished by
the cumulative impact of further visual intrusions or degradation of its
relationships to the Thames and environs.”405
413. Attribute 2 identifies the important contribution that the architectural heritage
of the site makes to its OUV stating that: “The Royal Botanic Gardens, Kew are
home to a unique and distinguished architectural heritage, including some of
Britain’s most iconic buildings and the world’s most iconic garden structures...”.
414. The attribute clearly identifies that Kew Palace and the associated royal
connections are an important element of this legacy: “The property’s history as
an 18th century royal retreat alongside and linked to the River Thames has left a
rich architectural legacy captured in its archaeology, in the documentary record
and in notable instances, as buildings still standing in the landscape – including
the Ruined Arch, Queen Charlotte’s Cottage and several temples. The garden
buildings on the site were at the nexus of the development of 18th century
garden architecture, being inspired by, and in turn inspiring, garden structures
across Britain and Europe. Alongside the garden follies and glasshouses, the
property contains a striking collection of royal palaces and ancillary buildings,
with the White House kitchen and Kew Palace standing as key survivors, whilst
405 Page 26
https://www.gov.uk/planning-inspectorate Page 75
the White House and the Castellated Palace both survive as archaeological
deposits.”
415. The Plan also identifies that the setting of these architectural assets, including
Kew Palace, contributes to their Integrity and Authenticity, and hence the
authenticity and integrity of the WHS, it notes that: “The property contains a
large number of historic buildings, which make a direct contribution to its
integrity. This integrity is threatened by development outside the buffer zone,
which may impact on the settings, and thus integrity, of individual buildings
within the WHS”.
416. Given the overlay between the various heritage designations and the
relationships between them, harm to the WHS would result in harm to one or
both conservation areas and the registered park and garden; and visa-versa.
Similarly, harm to listed buildings and their settings would harm, to differing
degrees the OUV of the WHS.
417. In broad terms the character of the Gardens can be broken down into three
high level areas: the Woodland Conservation Area to the southwest of the site;
the main Victorian arboretum, where trees are formally organised by family; and
the area around the Palm House and the original 1759 botanic garden, with the
former gardens of historic properties along Kew Green.
418. The area around the Palm House, open lawns in front of Kew Palace and
Orangery, and original 1759 Botanic Garden is a distinctive part of the site where
views open up for the visitor to enjoy and there are expanses of lawns between
the open paths.
419. The character of the formal arboretum and the woodland garden to the south,
by contrast, is generally quite crowded with trees, plants structures and
buildings, punctuated by strong views down the formal vistas.
420. This contrast of character between these two areas makes the sense of space
and views available in the area of the Palm House, around the open lawns
(formerly part of the Great Lawn) in front of Kew Palace and original botanic
garden particularly noticeable and appreciable.
421. The Gardens are well-bounded to the north, south and east, while open views
are still available across the Thames to the southwest of the gardens, to Syon
Park. Historically, the western views were far more open along the length of the
Thames beside the Richmond gardens, however, with time they have been
screened to a large degree to try and mask industrial and housing developments
across the river in Brentford.
422. The experience of the RBGK by the visitor is of a place of escape away from
the busy urban landscape. This separation from the city reflects the fundamental
historic design intent to separate Kew from the wider world. The high walls and
decorative gateways that puncture the walls, and the enclosing nature of the
trees are all central to this feeling of retreat and escape into a world apart; a
separation that has been deliberately created and maintained over the centuries.
423. Consequently, features that break into the skyline over the Gardens’
boundaries, or are visible through the boundaries of the site, are highly
noticeable and infringe on the experience of immersion in this verdant landscape
and our ability to understand and experience its design intent. This sense of
https://www.gov.uk/planning-inspectorate Page 76
being a ‘world apart’ is rooted in the historic design ethos and purpose of the
WHS.
424. Kew Palace is a highly significant building, recognised by its status as a Grade
I listed structure and scheduled monument. The 17th century house is a rare
survival of its type, originally built by a Flemish merchant in 1631. The red brick
mansion became a royal residence in 1728 when it was purchased by Queen
Caroline the wife of George II, and remained in that use until c. 1895 (albeit
intermittently in the 19th century) when it transferred to the Office of Public
Works and its grounds were incorporated into the Royal Botanic Gardens.
425. The lease/purchase of the house by Queen Caroline in 1728 marked a key
stage in the development of the WHS. Seeking a rural property, the Queen
leased it for her daughters – providing a domestic scale escape from the City. It
complemented the larger Richmond Lodge to the south across the emerging
Richmond Gardens. The royal occupancy of the Richmond Gardens and Kew
Palace led Prince Fredrick (Caroline’s son) to lease the White House next door to
Kew Palace and begin his and Princess Augusta’s remarkable Kew Gardens, in
direct competition with Richmond. After the unification of the Gardens, the Palace
played a role in the daily life of the royal family when they were at Kew, but this
declined after about 1818.
426. Kew Palace is now one of a small number of buildings in the WHS that directly
reflects the early Royal patronage of the site; it is a key location for telling the
story of royalty at Kew and a vital element of Kew’s architectural legacy and
story as a royal retreat (all aspects of OUV).
427. The Palace now overlooks open lawns to the front and has done so since the
later part of the 19th century (following the demolition of the White House in
c.1818 and the removal of associated Royal Mews buildings between c.1896 and
1913). This open aspect to its front is a notable element of its setting, as is the
formal garden setting to the rear. These aspects enable us to appreciate the
architectural form of the building as well as the evolution of the landscape it
overlooks. The building also forms an element of the physical screening around
the Gardens, helping to restrict views of Brentford from the Great Lawn.
428. In relationship to its setting and the wider WHS, Appendix D of the MPlan
states that: “Kew Palace is an imposing and highly significant historic building. It
sits on its own at the north of the gardens, the buildings that were once attached
to it having been demolished historically. It has an open aspect on three sides,
with unobstructed views to the River Thames. Its historic boundaries and its
historic physical separation from the Gardens have long been removed and it now
forms part of the experience of the Gardens; as well as being key to
understanding its history.
There are a number of key elements to its setting, including:
• Its highly prominent role as a key landmark in this area of the Gardens;
• Key views of its main frontage from the various locations to the east on the
former Great Lawn and the location of the former White House;
• Views of its river frontage from the recreated gardens to the west and from the
river itself;
https://www.gov.uk/planning-inspectorate Page 77
• The formal gardens to the front and rear, specifically designed to complement
the historic building;
• Views from its primary entrances on the east and west façades;
• Its visual and physical relationship to the River Thames;
• Views from upper floor windows which situate it in its wider landscape and
highlight its relationship to the Gardens and the Thames;
• Key approaches to the building from the former Royal Kitchens, across the
lawns to the east and from the Elizabeth Gates to the north; and
• The “memory” of the nearby demolished White House, and the desire to
reconstruct it in the mind’s eye in views of Kew Palace and in views from the
Palace and grounds”.
The setting of Kew Palace has already been adversely affected by a number of
modern developments, including the Kew Eye and Haverfield Estate Towers.
429. Section 3.3. of the MPlan provides a statement on the contribution the setting
of the RBGK makes to its OUV, this states that: “The historic landscape design,
the built architecture of the site, and the experience of place that is derived from
these, are all central to the OUV of the WHS. The Gardens are, with a few key
exceptions (such as Syon Vista), an internally-oriented landscape, and preserving
the integrity of this setting from external intrusions plays a fundamental role in
supporting its OUV. The WHS has a very specific set of relationships with its
setting, which are an integral part of its design, its experience and therefore of
its OUV. In summary, the setting of the site contributes to the OUV of the WHS
and our appreciation of the OUV by:
i) Providing a largely unbroken skyline above the walls and boundary
planting hence strengthening and maintaining the historic and
continuing design intent of the WHS’s sense of being a world apart,
separated from the wider, urban world outside (largely due to the
broadly domestic scale and form of development around the WHS).
ii) This largely unbroken skyline enables the visitor to appreciate and
understand the design intentions of the landscape architects who
worked there in the various phases of the gardens, as they progressed
from royal retreat and pleasure garden, to national botanical and
horticultural garden, to a modern institution of conservation and
ecology – a unique botanic garden set within a historic designed
landscape.
iii) Providing areas of openness and ‘big sky’, framing strong internal
views across the bounded open space.
iv) Providing visual and physical relationships westwards over the River
Thames and to the wider Arcadian landscape beyond, including the
designed relationships with Syon Park, which enables modern visitors
to appreciate the rus in urbe that Kew Gardens provides, and to see
the landscape through a similar lens as the historic designers who
worked there, and their royal patrons.
v) Providing the backdrop to key views and vistas including, amongst
others, the Syon Vista, Broadwalk, Cedar Vista, Pagoda Vista, and
https://www.gov.uk/planning-inspectorate Page 78
other internal views such as the views over the open lawns in the
Entrance Zone which reflect the historic Great Lawn.
vi) Providing the backdrop to views of and from architectural icons on the
site including the Palm House, Temperate House, Princess of Wales
Conservatory, Kew Palace and the Orangery.
vii) Providing the backdrop to views of and from the numerous historic
garden buildings, follies etc. on the site.
viii) The well-defined boundaries directly enable the conservation of
the internationally significant living collections housed within.
In these key ways, the setting of the WHS supports and enhances the OUV of the
WHS, including its authenticity and integrity.
Additionally, within the WHS the design, management and control of
development and planting in the Gardens makes a direct contribution to the
setting and significance of key buildings, helping maintain the OUV of the WHS,
including its authenticity and integrity.
Overall, the setting of the Royal Botanic Gardens, Kew WHS makes a direct and
important contribution to its significance as an evolved designed landscape
representing key periods in garden history and royal history. The setting of the
site also makes a contribution to the setting of individual architectural icons
within it and the setting of individual garden structures and temples. Much of this
contribution comes from the current form and nature of the wider environs of the
site and their limited visual intrusion into the site, although this contribution has
and remains under threat due to existing tall buildings and other development
proposals.”
430. The proposed development would affect the setting of the WHS in the following
key ways:
• It would visually intrude into the enclosed space of the Great Lawn, harming
the WHS’s sense of enclosure;
• It would compete with and challenge Kew Palace in important views across the
Great Lawn, affecting both Kew Palace and the WHS, including visual
relationships between the Palace and associated buildings;
• It would significantly harm the setting and significance of Kew Palace, a notable
element of the site’s OUV;
• It would significantly increase the dominance of urban development along this
stretch of the River Thames, affecting the character and feel of the setting of the
WHS; and
• It would notably increase the cumulative impact of existing external
development on the OUV of the WHS, further harming the site’s important sense
of otherworldliness and separation from the urban form of Brentford.
431. All of these issues arise from the poorly considered design of the development
in terms of its location, height and over-bearing mass – indeed the LBH Officer’s
report frequently refers to the “wall like” nature of the development’s design.
432. The MPlan sets out the agreed approach to cumulative harm: “The existing
detractors around the WHS (as set out above) cause significant harm to the
https://www.gov.uk/planning-inspectorate Page 79
setting and OUV of the WHS. As established in national, London-wide and local
planning policy (see Section 1.4) it is important that this existing harm is taken
into account when determining proposed developments. Additional harm must be
understood as being cumulative with existing harm. World Heritage Sites are
designated heritage assets of the highest significance and great weight should be
given to the asset’s conservation (and the more important the asset, the greater
the weight should be). Any harm should be given great weight in the planning
balance and harmful developments should be resisted.”
433. The potential impacts of the proposal have been scored using both the scoring
mechanism recommended in the WHS SPG406 and the terminology of less than
substantial harm and substantial harm utilised by the Framework. RBGK has
identified where on the scale of harm an impact would lie, reflecting guidance in
the PPG.
434. The proposed development on its own would result in a moderate407 adverse
impact, resulting in a large adverse effect. Cumulatively, the proposed
development adds to the existing significant impacts resulting in comprehensive
changes to the setting of the WHS, i.e. a major adverse impact resulting in a
very large adverse effect.
435. The proposed development would harm the OUV of the WHS. That harm would
be less than substantial and just below midpoint of that scale. This reflects the
fact that the development would harm key aspects of the setting of the WHS and
the setting of key elements that contribute to its OUV i.e. Kew Palace.
436. Cumulatively, with existing/consented development, it would have a very
significant impact on the WHS. The scale of impact resulting from
existing/consented development and the proposed development is severe and
affects important aspects of the WHS’s setting and the setting of key assets
within the WHS that make a direct contribution to its OUV. The overall cumulative
level of harm to the OUV of the WHS would be at the upper end of less than
substantial harm, given the pervasive impact of development on key aspects of
the setting and historic design intent.
437. As an asset of the highest importance any harm to the RBGK WHS must be
given the greatest weight in decision making. Given the scale of harm and the
importance of the asset, the overall weight against this application is very
significant. Any public benefits to outweigh this would need to be very
considerable indeed. Additionally, the applicant needs to provide clear and
convincing justification for the harm. RBGK does not consider it has done so.
438. In addition to the harm to the WHS, RBGK, HRP and HE have also identified
that the proposed development would harm the setting and significance of the
Grade I Listed Kew Palace. The harm is less than substantial, but it is still a
significant impact that requires clear and convincing justification and significant
weight in the planning balance. As a Grade I listed building the Palace is an asset
of the highest significance (as identified in paragraph 194 (b) of the Framework).
As set out in Framework paragraph 193, great weight must be given to this
406 CD B5
407 “Changes to setting of an historic building, such that it is significantly changed” – as
defined in Appendix 3 of the London World Heritage Sites - Guidance on Settings SPG (CD B5)
https://www.gov.uk/planning-inspectorate Page 80
harm. The development of the scheme would also result in a significant level of
harm to the RBGK Conservation Area, the Grade I Registered Park and Garden,
as well as a lower level of harm to the Kew Green Conservation Area.
439. RBGK’s assessment and concerns are supported by the grave concerns
expressed by ICOMOS in their review of the application408, by HE’s objection and
by HRP’s objection.
440. As a result of these impacts on the WHS and Kew Palace the proposed
development is in conflict with Policies CC3 (Tall buildings) and CC4 (Heritage) of
the HLP; Policies 7.7 (Tall Buildings), 7.8 (Heritage Assets and Archaeology) and
7.10 (World Heritage Sites) of the current London Plan; Policy HC2 (World
Heritage Sites) of the IPLP; the Framework; and the MPlan. Section 66 of the
Planning (Listed Buildings and Conservation Areas) Act 1990 (as amended) is
also engaged given the impacts on Grade I listed Kew Palace.
Interested Parties appearing at the Inquiry
Elmer Postle409
441. Mr Postle addressed the Inquiry as a local resident, occupying a houseboat
moored close to the site at Lots Ait. It was said that the proposed development
would result in the loss of a community facility with a river connection, to be
replaced with a residential scheme. The river should be a valued and well used
public amenity. Existing developments have led to a ‘canyon’ effect along the
river. The existing Arts Centre, in its riverside location, is of considerable value
as social infrastructure where people can meet and interact. The proposed flats
are not likely to be occupied by local people, rather investors and temporary
tenants - this does little for building communities. The proposal seeks to
monetise its relationship with Kew Gardens but gives nothing back. The
development should provide a new community asset/space that would benefit
local people, particularly youths.
Written Representations
442. A number of written representations were made by interested parties and local
groups, largely objecting to the proposed development. These are set out in the
Council’s Committee Report410 and in the appellant’s Representation Letters and
Response Schedule411.
443. In summary, these raise concerns about the scale and height of the proposal
and its impacts upon local character and appearance, including heritage assets;
loss of the Arts Centre as a community asset that benefits from a riverside
location; effects on infrastructure; effect on neighbours living conditions, with
particular regard to light and overlooking; and highways and parking concerns.
408 see Section 2.3.2 and CD A13
409 See written submissions at ID8
410 CD C29
411 CD F7
https://www.gov.uk/planning-inspectorate Page 81
444. In addition, it is of note that objections were received from the London
Borough of Richmond Upon Thames and ICOMOS412, each raising concerns about
the heritage impacts of the proposal.
445. Some support was received from local residents, the Greater London Authority
(GLA), Hounslow Chamber of Commerce and the Theatres Trust particularly in
relation to the prospect of a new modern and fit for purpose Arts Centre.
Conditions
446. In advance of the Inquiry, the applicant and the Council agreed conditions that
would be appropriate in the event that planning permission is granted and
subsequently produced a final agreed version413 following discussions during the
event. Conditions must be necessary, relevant to planning and to the
development, enforceable, precise and reasonable in all other respects414.
Following these discussions, I am satisfied that, for the reasons stated, all these
conditions meet the tests. In the event that permission is granted, these should
be imposed as set out in the attached Schedule. The wording in the Schedule is
as agreed between the parties but for some very minor changes to improve their
precision and ensure accuracy.
447. Planning permission for the development of the land may not be granted
subject to a pre-commencement conditions without the written agreement of the
applicant to the terms of the conditions415. The applicant was asked to give this
matter appropriate consideration and confirmed416 agreement to the terms of the
pre-commencement conditions.
Planning Obligations
448. A legal agreement417, supported by a summary and explanation418 for the
various elements was submitted to the Inquiry, as was a Compliance
Statement419 covering how the agreement would accord with the Community
Infrastructure Levy (CIL) Regulations 2010. My conclusions are based on an
assessment in the light of the CIL Regulations and the Framework, which sets 3
tests420 for such obligations. The obligations include, but are not limited to, the
provision of 20% AH; the replacement arts centre; riverside walkway access;
carbon offset contribution; construction training; a travel plan; and highway
works. Following discussions at the Inquiry, I am satisfied that the obligations in
the agreement, all comply with the CIL Regulations and the Framework and I
have given weight to them in my conclusions.
412 Not summarised in the Council’s Committee Report but available at CD A13
413 ID18
414 Para.206 of the Framework
415 Section 100ZA(5) of the T&CP Act 1990
416 SoCG (CD F2) and CD F10
417 Unsigned version at ID19 (signed and completed version in hard copy)
418 See Tom Horne, Appendix A
419 CD F9
420 CIL Regulation 122:(2) A planning obligation may only constitute a reason for granting
planning permission for the development if the obligation is —
(a) necessary to make the development acceptable in planning terms;
(b) directly related to the development; and
(c) fairly and reasonably related in scale and kind to the development.
https://www.gov.uk/planning-inspectorate Page 82
Inspector’s Conclusions
From the evidence before me at the Inquiry, the written representations, and my
inspection of the application site and its surroundings, I have reached the
following conclusions. The references in square brackets [] are to earlier
paragraphs in this report.
449. The matters on which the Secretary of State (SoS) particularly wished to be
informed are set out in the bullet points at the top. Combined with other matters
raised, I find that the main considerations in this application are:
i) the effect of the proposals on the significance of designated heritage
assets derived from their settings;
ii) any other harms which might affect the overall balance;
iii) the benefits of the scheme with particular regard to housing, affordable
housing (AH) and re-provision of the Arts Centre;
iv) whether the public benefits of the proposals would outweigh any harm
identified in the heritage balance;
v) Planning policy and the overall planning balance.
450. In short, the question is whether the proposed development would harm the
significance of heritage assets and, if so, whether such harm would be
outweighed by the public benefits of the scheme. The Framework provides for
such a balancing exercise421 and there is no disagreement between the parties
that applying this policy approach will fulfil statutory requirements with regards
to the protection of heritage assets. [109, 118]
Effect on heritage assets
451. The relevant designated heritage assets (as defined in the Framework) include
the World Heritage Site (WHS) at Kew Gardens, which is also a Grade I
Registered Park and Garden (RPG), its conservation area with roughly contiguous
boundaries and the numerous listed buildings within, notably in this case the
Grade I listed Kew Palace, which is also a Scheduled Ancient Monument (SAM),
Grade I listed Kew Palace Flats (Royal Kitchens) and the Grade II listed Kew
Cottages. In addition, the Kew Green Conservation Area. There was general
agreement about the significance of the assets and the relevant policies from
which any conflict might arise. [65-66, 104-106, 114-115]
452. The parties drew parallels between the current application and the Chiswick
Curve (CC) and Citroen applications, referencing the Inspectors reports and the
SoS decisions throughout the Inquiry. In those cases, both Inspectors set out
that there is little that could usefully be added to the cases made by the parties
with respect to the significance, status and importance of the heritage assets
affected. These are matters that are now well rehearsed and the SoS will be
familiar with them. As such, I adopt the same approach. [218-219, 222, 236-
238, 240, 268-270, 278, 282-284, 382-383, 406]
453. There would be no direct harm to designated heritage assets. Rather, any
harm would be from the impact of the development on the significance derived
from their settings. No party alleges that the development would amount to
421 Para. 196
https://www.gov.uk/planning-inspectorate Page 83
substantial harm to heritage assets in the terms of the Framework but there was
broad disagreement about the level of harm within the spectrum of ‘less than
substantial harm’, if any harm occurs at all – it is the applicant’s case that it
would not. [174, 223, 336]
Royal Botanic Gardens Kew (Kew Gardens)
454. As set out above, Kew Gardens is subject to numerous designations and in
terms of heritage value, it is of the very highest order. The Statement of
Outstanding Universal Value (SOUV) emphasises the importance of the historic
designed landscape and architectural legacy of the Gardens. Of the OUV’s
attributes, the two that are most relevant are: a rich and diverse historic cultural
landscape providing a palimpsest of landscape design; and an iconic architectural
legacy. [35, 222, 274-277, 383, 407-408]
455. The MPlan describes Kew Palace as “an imposing and highly significant royal
building […] which forms part of the experience of the Gardens as well as being
key to understanding its history”, it being part of a striking collection of royal
palaces and ancillary buildings. There is no dispute between the parties that
where the significance of Kew Palace or other listed buildings forming part of the
iconic architectural legacy are harmed, it would also harm the OUV and the
significance of the WHS, RPG and CA. [222, 415]
456. Kew Gardens is a predominantly inward facing and well contained landscape,
with some exceptions such as the Syon Vista. It is this sense of enclosure that
allows one to feel separated from the city and urban environment beyond,
creates a sense of otherworldliness and illustrates how the gardens and palaces
were used as a retreat for the Royals. The largely unbroken skyline, ‘big sky’
above and the arcadian backdrop are all key elements of setting that contribute
to OUV, as well as the integrity and authenticity of the WHS. In his CC Decision,
the SoS accepted in relation to Kew Gardens that “any intrusion of [the] city
must be harmful to its setting and its OUV”. Having regard to the attributes
contributing to OUV, I find that statement to be equally applicable in this case.
[272-277, 300, 337, 410-412, 429]
457. Kew Palace, together with the Orangery, the White House and the Great Lawn
were all part of a landscape which was designed as a piece, albeit over a period
of years and subsequently radically modified. The White House has long since
been demolished but Kew Palace has taken its place at the head of what remains
of the Great Lawn and has done so for over 200 years. Harm to the setting of
Kew Palace would also harm what remains of this designed landscape
composition. The importance of Kew Palace in its own right, and through its
contribution to the OUV of the WHS is clear from the MPlan and highlighted by
the parties. [275, 279-280, 315, 384]
458. In accordance with the Framework, great weight should be given to the
conservation of designated heritage assets even where the harm would be less
than substantial and any harm should require a clear and convincing justification.
From the Courts’ interpretation of s.66 of the Planning (Listed Buildings &
Conservation Areas) Act, considerable importance and weight should be given to
the desirability of preserving the setting of listed buildings in any balancing
exercise with material considerations which do not have this status. [109, 118]
https://www.gov.uk/planning-inspectorate Page 84
459. While great weight should be given to every asset’s conservation, as Kew
Palace and the WHS are amongst the most important of such assets, even
greater weight should be given to any harm. This applies to the effect of
proposals both on their significance and on the ability to appreciate that
significance. [110, 119]
460. As above, the considerable importance and weight to the desirability of
preservation, should tip the scales to produce an unequal balance in its favour.
However, the SoS should still take account of the actual severity of any change,
or scale of change as the WHS SPG puts it, and so the extent of impact, as well
as the relevance to its significance, and the importance of the asset. The overall
weight to be given to any harm, and the conflict with policy, should be a product
of these factors. This approach largely reflects the assessment methodology set
out by ICOMOS in its HIA Guidance and the WHS SPG which was broadly followed
by all parties, though with some refinement by the applicant to take account of
other factors considered relevant. This, perhaps, goes some way to explaining
the significant divergence between the applicant and other parties in assessing
harm. [330-331, 394-396]
461. The case of Bedford is helpful in establishing the threshold for substantial
harm, which is not argued by any party in this case. It also assists a little in
calibrating the potential level of less than substantial harm, but this is a broad
spectrum. The status of the asset must have a bearing on any such assessment
(the more important the asset, the greater the weight should be) as per the
Framework and even small impacts can have large effects on significance in this
context. The weight attached to harm should not be reduced because it only
affects a small part of a large WHS. [163-170, 233, 321, 378, 391-393]
462. This proposition led to significant discussion about the amount of significance
in scope to be drained away by the proposals. I cannot accept that because
much of the significance of these invaluable heritage assets is unaffected, that
should somehow lead to any harm impacting on one important aspect of
significance being reduced. What is important here is the extent to which
significance would be harmed through impacts on setting. This harm is not
mitigated by leaving other elements of significance unharmed, though impacts
should always be considered in their proper context and with a realistic view of
the level of harm arising. [166-168, 322]
463. In assessing impact on significance, and for a much taller scheme, the CC
Inspector found that: “all the intrinsic significance of Kew Gardens would be
untouched and that no-one could reasonably argue that any of the designated
assets at issue in this case derive most of their significance from their setting”.
The Citroen Inspector shared this view. I too adopt this position, albeit that it is
principally Kew Palace at issue here and not the Orangery. That is not to say
that setting, which extends beyond the WHS buffer zone, is not a very important
element of significance for Kew Palace or OUV for Kew Gardens for the reasons
set out and I consider it to be a weighty contributor to significance and OUV.
[169, 174, 322, 325]
464. As in the CC and Citroen decisions, there is no dispute that the proposal would
be visible from various parts of Kew Gardens, sometimes in conjunction with, or
from, listed buildings. There can be no doubt therefore that the appeal proposal
https://www.gov.uk/planning-inspectorate Page 85
would have an effect on the setting of Kew Gardens as a whole, but also the
setting of designated heritage assets within it.
465. The parties assessed the impacts of the proposal from a range of agreed
viewpoints within Kew Gardens. Viewpoints 16 and 19 from the Great Lawn
towards Kew Palace are of particular importance, though it must be remembered
that the experience of the gardens is a kinetic one and that views of the
proposed buildings would be visible from other positions. These views are not
designed views within the landscape in contrast to the formal views and vistas
identified in the MPlan but are highlighted as open views of the Palace which
contribute to setting. [188, 302]
466. In contrast to the Citroen scheme, the proposed development would not
appear directly atop of any heritage asset, instead appearing to the side of Kew
Palace, largely obscured by the tree line, particularly in summer when the
gardens are at their busiest. Whilst the proposal would involve somewhat lower
buildings than in Citroen, they would be located much closer and would have a
much broader form. They would become a noticeable intrusion to the informed
viewer, bringing urban Brentford into view to a greater extent and diminishing
the sense of containment from the Great Lawn. The proposed buildings would,
however, appear lower than Kew Palace and whilst they would distract from the
Palace to some extent, would appear distant and recessive. They would barely
be visible from many parts of the Great Lawn and even where visible, would not
compete with the striking façade of the Palace in any meaningful way so as to
diminish its prominence from the Great Lawn. The overall effect of the scheme in
the setting of the Palace would be very minor. [226, 316]
467. Viewpoints 20 and 20A are taken from the rear of the Palace, looking across
the 20th Century garden towards the appeal site. The formal gardens are modern
and are very different to the tree lined avenue leading to the river that was in
place during the 18th Century when there would have been a functional
relationship with the river for arrival at the Palace. Whilst this is so, the
proximity of the Thames and the separation it provides between the Palace and
urban Brentford are important aspects of its setting. [186-187, 229-230, 308,
347-352, 385-390, 397-398]
468. Urban Brentford is itself much changed from the 18th Century and is already
visible from the rear of the Palace. The proposed buildings would become
prominent in these views, albeit mitigated by tree screening to a certain extent in
summer. They would introduce a larger scale of development to this part of
Brentford and in proximity to the Palace. The fact that the proposed buildings
are well designed and would utilise subtle colours, would do little to mitigate their
size and scale in my view. That said, the buildings would be seen in the context
of the existing town, which predates the Palace and has always been within its
setting, including during royal occupation. This part of the Thames isn’t, and
never has been, comparable in character terms to the iconic arcadian stretch that
is found in the vicinity of the Syon Vista. It is and was a working town with all
that goes with it, including a large industrial gas works for some time. The
development would not alter the Palace’s relationship with the river or the
spacious and verdant setting that provides an interlude from urban Brentford.
The effect on significance from the increased scale of the proposed buildings
within its setting would be minor. [182-184, 229, 351]
https://www.gov.uk/planning-inspectorate Page 86
469. The Grade I listed Kew Palace Flats (the Royal Kitchens) were designed by
William Kent and built in the 1730’s to serve the White House. The building is
important for its architectural quality and the survival of the kitchen interiors.
The Grade II listed Kew Cottages date from around 1800 and are survivors of a
once larger group of royal domestic buildings. Both buildings make a
contribution to the understanding of the historical connection between the
gardens and their royal past. This contribution is appreciated through their
location within the gardens and proximity to the Palace and former White House,
to which they would have been ancillary. It seems to me that any significance
they possess in respect of setting is in this immediate context. Views of the
buildings from the Great Lawn in conjunction with the remaining Palace are
glimpsed at best and this relationship would not be diminished by development
on the other side of the Thames. I do not consider that the proposed
development would harm the setting or the significance of these assets in any
way. [238, 282, 353, 361]
470. The impacts that I have identified should also take into account the importance
of the heritage assets, being of the highest order. Listed buildings should be
preserved for their own sake and the setting of Kew Palace is very important to
the OUV of the WHS, albeit not the only aspect of its significance. I have given
considerable importance and weight to the desirability of preserving the assets
and having found that the overall extent of the change to setting would be minor,
I consider the harm to significance would be approaching moderate having
regard to the importance of the assets.
471. Having identified the harm arising from the proposals, an assessment of
cumulative harm must also be factored in. From the viewpoints identified, the
Kew Eye and the Haverfield Towers are noticeable detractors. Taken together,
the effect of the change on the setting of the Palace would be increased. When
having regard to the importance of the assets, the weight to the direct harm and
the additional cumulative harm should be assessed as moderate. The cumulative
harm from other intrusions to the WHS, not visible from the viewpoints relevant
here but in the wider kinetic experience of the Great Lawn, including the Citroen
scheme, add a little to this but do not take my assessment beyond moderate.
[232, 328, 335, 356, 362-363, 412, 430, 432, 434-436]
Kew Green Conservation Area
472. The CA appraisal explains its designation as an historic open space, with high
quality 18th Century development, a definite village character and a fine example
of an historic Green. Unlike in the CC and Citroen decisions, the proposed
development would not be visible at all from the Green itself. In this case, it is
the part of the CA that extends beyond the Green and along the river from which
the development would be seen. The CA includes a small riverside portion of
Kew Gardens, taking in a riverside path that curves around the northern edge of
the WHS, as well as a large portion of its buffer zone, extending into the Thames
and including Brentford ait. Its position on the river, dominated by the waterway
and the trees on the ait, contributes to its semi-rural character, and is recognised
by the CA appraisal as a “superior riverside environment” which acts as a “foil to
the Green”. [192, 240-242, 283, 360]
473. The proposed development would be wholly outside of the CA but would be
seen from it and within its setting. The proposed buildings would be much taller
https://www.gov.uk/planning-inspectorate Page 87
than those existing on the site and noticeably larger in scale and mass. They
would be seen with some prominence from the riverside path within the CA but
clearly on the opposite side of the river, in the context of urban Brentford and
other sizeable buildings. The development would diminish the semi-rural
character evident in this part of the CA to some extent but the effect on its
significance could not be described as more than slight, even taking into account
the cumulative effects.
Heritage Balance
474. The Framework422 requires a balancing exercise where less than substantial
harm to the significance of a designated heritage asset has been identified.
Where there is more than one instance of such harm, as here, these should be
combined in a planning balance.
475. Less than substantial harm does not amount to a less than substantial
objection. Taking account of the considerable importance and weight that should
be given to the desirability of preserving the setting of listed buildings, I have
found the overall weight to the harm to the significance of Kew Palace (and by
extension to the OUV of the WHS) is approaching moderate. The weight to the
harm to the significance of Kew Green CA is slight. The cumulative effect in each
case adds a little to the harm but does not take my individual assessments
beyond moderate and slight respectively, albeit in the upper extents.
476. I will go on to consider whether this harm is outweighed by public benefits in
due course.
Other harm
477. The development would be located close to Lighterage Court/Kew Reach, a
residential block adjacent to the site. The block is built up to the site boundary
with numerous windows overlooking the application site such that the
development would result in some loss of daylight and sunlight. In the majority
of cases, these impacts would fall within the scope of the BRE Guidelines423 but
there are some windows, predominantly serving bedrooms, that would see a
noticeable effect. The Council assesses that the effects on neighbouring
occupants would be no more than minor overall. Having regard to the urban
context and the site’s policy designation for redevelopment I am inclined to agree
that living conditions would not be unacceptably harmed. Nevertheless, this is a
matter that should be weighed in the balance and attracts negative weight, albeit
limited. [75, 81, 258]
478. Other concerns were raised by interested parties, but these are addressed by
the applicant and there are no other harmful impacts that could not be suitably
mitigated by way of conditions and obligations. [442-443]
Benefits
479. The appeal proposal would deliver 193 market dwellings, an efficient use of the
site and a significant benefit in the context of a national housing shortage and
the particular demands of London’s single housing market, notwithstanding
422 Para.196
423 ‘Site Layout Planning for Daylight and Sunlight: A Guide to Good Practice’ 2011
https://www.gov.uk/planning-inspectorate Page 88
Hounslow’s strong housing land supply position. No affordable housing would be
provided on site, but the scheme would facilitate redevelopment of the BPS site
(being linked by planning obligation), where 60 affordable housing units would be
delivered, along with a further 45 market units. The proposed 20% affordable
housing provision across the two sites is only half of the current strategic 40%
policy target for the Borough and less still against the 50% London-wide target.
However, after independent assessment, it is agreed by the Council to be the
maximum viable amount having regard to other factors, including the
replacement Arts Centre. The level of provision would also be subject to potential
uplift through a review mechanism. In this context, significant weight should be
given to the benefits from housing provision overall. [9, 24, 57-60, 202, 249]
480. I heard that the existing Waterman’s Art Centre is a well-used and important
community facility which is valued by many, but also that it is in a poor and
declining state of repair that jeopardises its ongoing utility. The existing lease on
the building is due to expire in 2024 and its future is uncertain. The Council,
through the HLP, identifies the Arts Centre as being of strategic importance in the
necessary regeneration of the town centre. It is said to be the town’s greatest
cultural asset and both extant and emerging policy seek its re-provision, either
on the existing site or an alternative site within the town centre. The BPS site,
whilst being just outside the town centre boundary, is agreed to be a preferable
location, close to town centre uses and public transport hubs. The development
would facilitate re-provision of an Arts Centre (including a theatre, cinema, café,
bar, restaurant and studio/gallery space) which is larger, purpose-built and ‘state
of the art’. The proposal is supported by the Theatres Trust. The delivery of this
costly community asset in line with strategic policy priorities of the Council should
be given substantial weight. [25, 53, 102, 126, 136, 138-149, 197, 208-212,
250-252, 445]
481. The proposed development has been designed to provide an entrance to the
town. Its scale would provide something of a landmark, but it would be
modulated into five blocks, some with spaces between that would allow views
towards the Thames and mitigate the expanse of buildings from the High Street
to some extent. The elevations would be well articulated with deep balconies and
banding that would create texture and depth. Materials with a range of subtle
colours would provide further variation and visual interest. Along with this, the
existing convoluted and uninviting riverside path would be entirely remodelled to
create an attractive riverside public space that would continue the Thames
footpath network. The proposed development and public realm improvements
would undoubtedly be an improvement in townscape terms, viewed from both
the High Street and the River Thames, compared to the very poor design and
appearance of the buildings on site at present. This matter should attract
significant weight in the planning balance. [61-64, 149-153, 253-254]
482. Some economic benefits would arise from the development, for example,
through construction jobs; permanent new jobs at site and retained permanent
jobs; and indirect economic uplift in the community. These, particularly the
short-term benefits, add little to the benefits that I have already identified. It was
also argued that the economic effects of Coronavirus should add weight to the
benefits so far as they assist the economy, but the medium to long-term impacts
remain uncertain at present and little additional weight should be attached in my
view. [142, 158, 255]
https://www.gov.uk/planning-inspectorate Page 89
483. There was disagreement between the parties as to whether the redevelopment
of the BPS site should also be considered a benefit to be weighed in the balance,
both in townscape and heritage terms. The existing building, which includes a
tall tower, is derelict, boarded-up and appears unkempt. Its replacement with a
suitable alternative building would be beneficial to the character and appearance
of the area but there are also potential issues regarding views of St Paul’s
Church, a locally listed building, and various conservation areas. To my mind,
these are matters that are most appropriately dealt with in considering the
application for redevelopment of that site and the Council has indeed done so in
resolving to grant planning permission. These are not matters that are before
the SoS in this application and none of the evidence in that case was tested at
this Inquiry. The effects of the scheme, from what I heard, are peripheral to the
main issues in this case such that they should be considered a neutral matter
here. [67-68, 101, 239, 376]
484. Overall, the package of public benefits should attract substantial weight.
There is no evidence in this case that there is an alternative to the appeal
proposal that could deliver the same or even a similar level of public benefits. No
suitable alternative sites have been identified that could accommodate the Arts
Centre and no party argues that the current application could be modified, for
example, to reduce its heritage impacts, whilst delivering the Arts Centre and
other benefits. The application scheme, in its current form, is agreed to be only
marginally viable. [5, 58, 142, 150, 202, 249, 252, 256-257, 403]
Conclusion on heritage balance
485. Having established the public benefits of the scheme, I now return to the
heritage balancing exercise required by the Framework424. I have found the
overall weight to the harm to the significance of Kew Palace (and by extension to
the OUV of the WHS) should be assessed as approaching moderate; and the
weight to the harm to Kew Green CA to be slight. The cumulative effect in each
case adds a little to the harm but does not take my assessment beyond the
upper echelons of moderate and slight respectively. In each instance, the
substantial benefits of the scheme are sufficient to outweigh the heritage harm.
This is an important material consideration.
Planning policy
486. The development plan forms the starting point for determination of this
application. The relevant policies are set out above.
487. Policies IMP2 and TC2 of the HLP together allocate the site for redevelopment
as part of a strategic policy approach to regenerate Brentford town centre and
encourage re-provision of the Arts Centre as part of these objectives. The
proposed residential use is supported by the site allocation when the Arts Centre
would be provided elsewhere. Although the re-provision would not be within the
town centre in this case, it would be on its edge. It would be delivered as part of
another HLP site allocation and is supported by the Council as a preferable
location for the Arts Centre compared with the existing site, which would be
acceptable in policy terms. The proposed location outside of the town centre does
not accord fully with the HLP but would deliver the regenerative benefits sought
424 Para.196
https://www.gov.uk/planning-inspectorate Page 90
and this should be weighed positively in the overall balance. [25-26, 137-138,
211, 369]
488. Overall, the housing policies in the development plan would offer broad
support for the proposals. The housing and AH, together with making efficient
use of a brownfield site would assist in meeting, and gain support from, the
requirements of London Plan Policies 3.3-3.5 and 3.8-3.13 and HLP policies SC1,
SC2, SC3, and SC4. [20, 24]
489. On account of the identified harm to designated heritage assets, including
when assessed on a cumulative basis and notwithstanding that it would amount
to less than substantial harm for the purposes of the Framework, the scheme
would lead to conflict with London Plan Policies 7.8 and 7.10. Unlike the
Framework, these policies do not require a heritage balancing exercise and this
means that policy conflict is unavoidable where harm to heritage assets, of any
magnitude, has been identified. [18-19, 214, 367, 440]
490. The proposal would improve the immediate character and appearance of the
area and would constitute good design. As such, it receives the support of
London Plan Policies 7.4 and 7.6 as well as HLP Policies CC1, CC2 and CC3.
London Plan Policy 7.7 requires particular consideration of tall buildings close to
heritage assets and so a balance is required. The site falls within a character area
where some suitability for tall buildings exists. HLP Policy CC4 again requires a
balance between harm to designated heritage assets and public benefits. [15-17,
21-23, 368]
491. There is some conflict with development plan policies, by virtue of heritage
harm in the context of the London Plan. However, other heritage policies do
incorporate the Framework’s approach to balancing heritage harms against other
public benefits. If the SoS agrees with my conclusion that the public benefits of
the scheme outweigh the heritage harm, then it would accord with the
development plan, taken as a whole. Alternatively, if a contrary conclusion is
reached on heritage, then there would be a clear conflict with the development
plan.
492. Emerging development plan policies are material considerations. Following the
SoS’s comments on the IPLP it is reasonable to assume that policies on which he
has not commented are unlikely to change. The relevant heritage policies in the
IPLP should therefore be given substantial weight, as in the Citroen case, though
a little less weight than adopted policies. As with current London Plan policies 7.8
and 7.10, the scheme would not accord with IPLP policies HC1 and HC2, which do
not require a heritage balancing exercise. On the other hand, Policy GG5 on a
competitive economy, and Policy GG2 on making the best use of land, support
the scheme. [37-40, 215, 371]
493. The site retains an allocation within the emerging Site Allocations Local Plan
Review, as site 110 – Albany Riverside, for a minimum of 150 residential units.
The document is yet to be examined and currently attracts limited weight,
nevertheless, the scheme would be in accordance. [41]
494. In light of the conclusions above, the scheme would be consistent with the
Framework’s policies in respect of housing, the economy and the historic
environment.
https://www.gov.uk/planning-inspectorate Page 91
Planning balance
495. As there is more than one instance of heritage harm, these should be
combined in the planning balance. I have found less than substantial harm to
both the Kew Green Conservation Area and to the highly significant heritage
assets at the WHS. I have carried out the requisite balances individually above.
Taking the assets together, the overall harm to significance would be moderate.
My findings of harm, though moderate overall, are significant in the context of
the heritage assets involved and engage paragraph 193 of the Framework, and
s.66 of the Planning (Listed Buildings & Conservation Areas) Act, meaning that
this harm must attract great weight, or considerable importance and weight, in
any balancing exercise. The minor impacts on levels of light reaching
neighbouring flats also weighs against the scheme.
496. These harms must be considered against the substantial benefits of the
scheme, which primarily involve the delivery of new market and affordable
housing, improvements to the character and appearance of the area, provision of
a new Arts Centre and some economic benefits.
497. Overall, I find that this substantial package of benefits is sufficient to outweigh
the harms and that the proposal is in accordance with the development plan
taken as a whole.
Recommendation
498. I recommend that the application should be approved, and that planning
permission is granted subject to the conditions contained in the attached
Schedule and the planning obligations discussed above.
Michael Boniface
INSPECTOR
https://www.gov.uk/planning-inspectorate Page 92
APPEARANCES
FOR THE LOCAL PLANNING AUTHORITY:
Edward Grant of Counsel
He called:
Sophia Laird MA (Hons) Conservation Officer
MA
Shane Baker BTP MRTPI Head of Strategic Development and Delivery
FOR THE APPLICANT:
Russell Harris QC
He called:
Joe Morris BA (Hons) Director, Morris+Company
DipArch ARB RIBA
Robert Tavernor BA Townscape and Heritage Consultant, Tavernor
DipArch PhD RIBA Consulting Ltd
Tom Horne BSc (Hons)
MSc MRTPI Director, DP9
FOR HISTORIC ENGLAND:
Scott Lyness QC
He called:
Kathy Clark BA MA Inspector of Historic Buildings and Areas
FOR HISTORIC ROYAL PALACES:
Paul Drury FSA MRICS IHBC Drury McPherson Partnership
FOR ROYAL BOTANIC GARDENS KEW:
Georgina Darroch World Heritage Site Coordinator, RBGK
Andrew Croft BA MA Director, Chris Blandford Associates
(written evidence only)
INTERESTED PERSONS:
Elmer Postle Local resident
https://www.gov.uk/planning-inspectorate Page 93
INQUIRY DOCUMENTS
ID1 Applicant opening submissions (submitted on 6 October 2020)
ID2 LBH opening submissions (submitted on 6 October 2020)
ID3 Historic England opening submissions (submitted on 6 October 2020)
ID4 HRP opening submissions (submitted on 6 October 2020)
ID5 Joe Morris (Morris+Company) pdf presentation (submitted on 6 October 2020)
ID6 Kew Palace and outbuildings image, 1880 (submitted on 7 October by HRP)
ID7 RBGK letter to Inspector regarding WHS MPlan consultation (submitted on 7 October by
RBGK)
ID8 Elmer Postle written statement (submitted on 8 October 2020)
ID9 Historic Royal Palace note on response on the Kew WHS MPlan (submitted by HRP on 9
October 2020)
ID10 Dentons note regarding Section 106 Agreement viability review confirmation (submitted by
the Applicant to PINs on 12 October 2020)
ID11 Statement from Watermans Arts Centre (February 2020) (submitted by the Applicant to
PINs on 14 October 2020)
ID12 Agreed (between Applicant and LBH) suggested amendment to condition 8 (submitted by
the Applicant on 15 October 2020)
ID13 Applicant suggested condition relating to overlooking (submitted by the Applicant on 15
October 2020)
CORE DOCUMENTS
A Government policy and guidance
1. NPPF (February 2019)
2. DEFRA Noise Policy Statement for England (March 2010)
3. BRE Site Layout Planning for Daylight and Sunlight – a guide to good practice (2011)
4. RICS – Financial viability in Planning (August 2012)
5. Historic England Advice Note 3 – The Setting of Heritage Assets (December 2017)
6. Historic England Advice Note 4 – Tall Buildings (December 2015)
https://www.gov.uk/planning-inspectorate Page 94
A Government policy and guidance
7. Historic England, Advice Note 2 - Managing Significance in Decision -Taking in the Historic
Environment (March 2015)
8. Statement of Outstanding Universal Value: Royal Botanic Gardens, Kew (29 June 2010)
9. Royal Botanical Gardens, Kew – World Heritage Site MPlan (2014)
10. Kew World Heritage Site MPlan 2019-2025 - Public Consultation
11. Historic England Conservation Principles, Policies and Guidance (2008)
12. Historic Environment Good Practice Advice in Planning: Note 12: Statements of Heritage
Significance (October 2019)
13. ICOMOS Technical Review – 40 and 40A High Street (Albany Riverside) development
proposal (November 2018)
14. ICOMOS Technical review – Planning application at Chiswick Roundabout, LB Hounslow
(May 2018)
15. UK Government World Heritage Site Report (2014)
16. UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage
(1972)
17. UNESCO Operational Guidelines for the Implementation of the World Heritage Convention
(July 2019)
18. ICOMOS Guidance on Heritage Impact Assessments for Cultural World Heritage
Properties (2011)
19. ICOMOS Site Evaluation of Royal Botanic Gardens, Kew (March 2003)
20. List entries for:
a) Kew Palace
b) Kew Palace Flats
c) Kew Palace (Schedule Monument)
d) Kew Gardens Registered Park and Garden
e) Kew Gardens World Heritage Site
f) 1 and 2 Kew Cottages
21. Chiswick Curve Inspector's Report and SoS decision letter (APP/F5540/W/17/3180962 &
APP/F5540/Z/17/3173208)
22. Caselaw
(a) Barnwell Manor [2014] EWCA Civ 137
(b) Mordue [2015] EWCA Civ 1243
(c) Bedford [2013] EWHC 2847 (admin)
23. National Design Guide (October 2019)
https://www.gov.uk/planning-inspectorate Page 95
A Government policy and guidance
24. NPPG extracts – Historic Environment
25. Royal Botanic Gardens, Kew – World Heritage Site MPlan 2020-2025
26. Citroen Garage Inspector's Report and SoS decision letter (APP/G6100/V/19/3226914)
B Development Plan documents and LPA guidance
1. Thames Landscape Strategy (1994)
2. Thames Landscape Strategy Review (2012)
3. LB Hounslow Urban Context and Character Study (August 2014)
4. LB Hounslow Local Plan (adopted 15 September 2015)
5. Mayoral Supplementary Planning Guidance London’s World Heritage Sites: Guidance on
Settings (March 2012)
6. Mayoral Housing Supplementary Planning Guidance (March 2016)
7. Mayoral Homes for Londoners Affordable Housing & Viability SPG (August 2017)
8. LB Hounslow Great West Corridor Local Plan Review – Pre-Submission Regulation 19
Consultation (July 2019)
9. Kew Bridge Conservation Area Appraisal (2018)
10. Kew Green Conservation Area Appraisal (1988)
11. Grand Union Canal & Boston Manor Conservation Area Appraisal (2018)
12. St Paul's Brentford Conservation Area Appraisal (1989)
13. Royal Botanic Gardens Conservation Area Appraisal (1991)
14. LB Hounslow Planning Obligations and CIL SPD (2015)
15. London Plan – Report of Examination in Public of the London Plan 2019 (8 October 2019)
16. Draft London Plan – Intend to Publish version (December 2019)
17. LB Richmond Local Plan (extracts) (July 2018)
18. London Plan (March 2016)
19. Mayoral Character and Context SPG (June 2014)
20. Letter to Sadiq Khan from the Rt Hon Robert Jenrick, Secretary of State for Housing,
Communities and Local Government (published 13 March 2020)
https://www.gov.uk/planning-inspectorate Page 96
B Development Plan documents and LPA guidance
21. LB Hounslow Kew Green Conservation Area Study No.2 (March 1994)
C Albany Riverside planning application documents (ref: P/2017/3372)
1. Covering letter and application and CIL form (4 August 2017)
2. A3 pack of application plans
3. Design and Access Statement (August 2017)
4. Landscape DAS (August 2017)
5. Planning Statement (August 2017)
6. Transport Assessment (July 2017)
7. Stage 2 Fire Safety Strategy (August 2016)
8. Financial Viability Assessment (August 2017)
9. Energy & Sustainability Statement (August 2017)
10. Statement of Community Involvement (August 2017)
11. Ecological Assessment (August 2017)
12. Arboricultural Impact Assessment (August 2017)
13. Environmental Statement Vol 1: main report (August 2017)
14. Environmental Statement Vol 2: Townscape, Built Heritage and Visual Impact Assessment
(August 2017)
15. Environmental Statement Vol 3: Appendices (parts 1 & 2) (August 2017)
16. Environmental Statement Vol 4: Non-Technical Summary (August 2017)
17. Financial Viability Assessment – Final Addendum (December 2017)
18. Historic England representation (14 September 2017)
19. Royal Botanical Gardens representation (20 September 2017)
20. Internal Daylight Sunlight Report (June 2017)
21. Response to Environment Agency (26 October 2017)
22. Response to TfL comments (27 October 2017)
23. Response to transport comments (30 October 2017)
https://www.gov.uk/planning-inspectorate Page 97
C Albany Riverside planning application documents (ref: P/2017/3372)
24. Drainage technical note (3 November 2017)
25. Response to Historic England and RBG Kew’s letters on Albany Riverside (12 December
2017)
26. Updated plans (submitted 18 December 2017)
27. GLA Stage I Report (15 January 2018)
28. Response to further transport comments (19 January 2018)
29. LB Hounslow Planning Committee report, late and addendum report, and full addendum,
and minutes (8 February 2018)
30. Historic England letter to DCLG NPCU requesting application be called-in for SoS
determination (15 February 2018)
31. GLA Stage II Report (15 October 2018)
32. Draft s106 agreement for Albany Riverside
33. Draft decision notice (21 December 2018)
34. MHCLG letter calling-in planning application (15 April 2019)
35. Drury McPherson Partnership representation (on behalf of Historic Royal Palaces) (19
August 2016)
36. Drury McPherson Partnership representation (on behalf of Historic Royal Palaces) (4
August 2017)
37. Historic Royal Palaces representation (9 October 2017)
38. Historic Royal Palaces letter to SoS HCLG requesting application be called-in for SoS
determination (9 February 2018)
39. Royal Botanic Gardens Kew letter to DP9 (Applicant's planning consultant) (22 August
2016)
40. Historic England letter to DP9 (Applicant's planning consultant) with pre-application advice
(18 August 2016)
41. Historic England letter to DP9 (Applicant's planning consultant) with pre-application advice
(7 October 2016)
D Brentford Police Station planning application documents (ref: P/2017/3371)
1. Design and Access Statement
https://www.gov.uk/planning-inspectorate Page 98
D Brentford Police Station planning application documents (ref: P/2017/3371)
2. LB Hounslow Planning Committee Report, addendum, late addendum and minutes (8
February 2018)
3. Draft s106 agreement
4. Draft decision notice
E Albany Riverside appeal documents
1. Bluescape Ltd Statement of Case (October 2019)
2. LB Hounslow Statement of Case (October 2019)
3. Historic England Rule 6 Party Statement of Case (October 2019)
4. Royal Botanical Gardens, Kew Rule 6 Party Statement of Case (October 2019)
5. Historic Royal Palaces Rule 6 Party Statement of Case (October 2019)
6. Third Party representations sent to PINs
F Inquiry documents
1. Pre-Inquiry meeting notes (9 January 2020)
2. Statement of Common Ground on planning matters between LB Hounslow and Applicant
(10 March 2020)
3. Statement of Common Ground on Heritage matters agreed between LB Hounslow,
Applicant and HRP/RBGK (9 April 2020)
4. Statement of Common Ground on Heritage matters agreed between LB Hounslow,
Applicant and Historic England (23 April 2020)
5. Case Management conference notes (10 August 2020)
6. Statement of Common Ground on Transport matters between LB Hounslow and Applicant
(8 September 2020)
7. Third party representations and responses schedule (9 September 2020)
8. Final draft section 106 agreement with note of changes and title plan and register for the
site (22 September 2020) and updated title and transfer document (25 September 2020)
9. Albany Riverside - Community Infrastructure Levy Regulation 122 LBH & Applicant agreed
compliance statement
https://www.gov.uk/planning-inspectorate Page 99
F Inquiry documents
10. Agreed draft conditions with comparison to CD C33 and DP9 2 October letter confirming
Applicant agreement to pre-commencement conditions (1 & 2 October)
11. Citroen Inquiry document: Proof of Evidence of Mike Dunn on behalf of Historic England
12. Citroen Inquiry document: Appendices to Proof of Evidence of Mike Dunn on behalf of
Historic England
13. Citroen Inquiry document: Proof of Evidence of Andrew Croft on behalf of RBGK
14. Citroen Inquiry document: Appendices to Proof of Evidence of Andrew Croft on behalf of
RBGK
15. Addendum to Statement of Common Ground – Housing Land Supply – agreed between
LBH and Applicant (5 October 2020)
LBH evidence submitted
LBH1 Proof of Evidence with Appendices of Shane Baker
LBH2 Summary Proof of Evidence with Appendices of Shane Baker
LBH3 Proof of Evidence with Appendices of Sophia Laird
LBH4 Summary Proof of Evidence with Appendices of Sophia Laird
LBH5 Supplementary Proof of Evidence of Shane Baker
LBH6 Supplementary Proof of Evidence of Sophia Laird
Appellant evidence submitted
APP1 Proof of Evidence of Tom Horne (DP9)
APP2 Appendices to Proof of Evidence of Tom Horne (DP9)
APP3 Proof of Evidence of Joe Morris (Morris+Company)
APP4 Appendices to Proof of Evidence of Joe Morris (Morris+Company)
APP5 Proof of Evidence with Appendices 1&3 of Robert Tavernor (Tavernor Consulting)
APP6 Summary Proof of Evidence of Robert Tavernor (Tavernor Consulting)
APP7 Appendix RT2 to Proof of Evidence of Robert Tavernor (Tavernor Consulting)
APP8 Supplementary Proof of Evidence of Tom Horne
APP9 Supplementary Proof of Evidence of Robert Tavernor
https://www.gov.uk/planning-inspectorate Page 100
Appellant evidence submitted
APP10 Additional Supplementary Proof of Evidence of Robert Tavernor with video clip (Tavernor
Consulting)
APP11 ERRATA to Proof of Evidence of Robert Tavernor (Tavernor Consulting)
Historic England evidence submitted
HE1 Summary Proof of Evidence of Kathy Clark
HE2 Proof of Evidence of Kathy Clark
HE3 Appendices to Proof of Evidence of Kathy Clark
Royal Botanical Gardens Kew evidence submitted
RBGK1 Summary Proof of Evidence of Andrew Croft (Chris Blandford Associates)
RBGK2 Proof of Evidence of Andrew Croft (Chris Blandford Associates)
RBGK3 Appendices to Proof of Evidence of Andrew Croft (Chris Blandford Associates)
Historic Royal Palaces evidence submitted
HRP1 Proof of Evidence of Paul Drury (Drury McPherson Partnership)
HRP2 Appendices 1-3 to Proof of Evidence of Paul Drury (Drury McPherson Partnership) and
Appendix 4 to Proof of Evidence of Paul Drury (Drury McPherson Partnership)
HRP3 Summary Proof of Evidence of Paul Drury (Drury McPherson Partnership)
https://www.gov.uk/planning-inspectorate Page 101
Schedule of Conditions
1) The development hereby permitted shall begin not later than 5 years from
the date of this decision.
Reason: To accord with the provisions of Section 92(1) of the Town and
Country Planning Act 1990.
2) The development hereby permitted shall be carried out in accordance with
the following approved plans: A233-A-(00)-P100, A233-A-(01)-P100, A233-
A-(00)-P200, A233-A-(01)-P200, A233-A-(01)-P102, A233-A-(01)-P110,
A233-A-(01)-P113, A233-A-A-(01)-P202, A233-AB-(01)-P203, A233-A-Z-
(01)-P301, A233-A-A-(01)-P302, A233-A-B-(01)-P303, A233-A-C-(01)-
P304, A233-A-C-(01)-P305, PL1617.GA.100, PL1617.GA.200,
PL1617.GA.300.
Reason: To ensure the development is carried out in accordance with the
planning permission and to ensure that any development that is carried out
is that which has been assessed.
3) No development shall take place until a Construction MPlan
(CMP)/Construction Logistics Plan (CLP) have been submitted and approved
by the Local Planning Authority. The CLP shall cover as a minimum:
i) a site plan (showing the areas set out below);
ii) confirmation that a pre-start record of site conditions on the adjoining
public highway will be undertaken with Hounslow Highways and a
commitment to repair any damage caused;
iii) provision for the parking of vehicles of site operatives and visitors;
iv) provisions for loading, unloading and storage of plant and materials
within the site;
v) details of access to the site, including means to control and manage
access and egress of vehicles to and from the site for the duration of
construction including phasing arrangements;
vi) details of vehicle routeing from the site to the wider strategic road
network;
vii) the erection and maintenance of security hoarding including decorative
displays and facilities for public viewing, where appropriate;
viii) provision of wheel washing facilities at the site exit and a commitment
to sweep adjacent roads when required and at the reasonable request
of the Council;
ix) a scheme for recycling/disposing of waste resulting from demolition
and construction works;
x) measures to ensure the safety of all users of the public highway
especially cyclists and pedestrians in the vicinity of the site and
especially at the access;
xi) commitment to liaise with other contractors in the vicinity of the site to
maximise the potential for consolidation and to minimise traffic
impacts;
xii) avoidance of network and school peak hours for deliveries and details
of a booking system to avoid vehicles waiting on the public highway;
https://www.gov.uk/planning-inspectorate Page 102
xiii) all necessary traffic orders and other permissions required to allow
safe access to the site to be secured and implemented prior to
commencement of construction;
xiv) details of the construction programme and a schedule of traffic
movements.
All construction and demolition works shall be undertaken in accordance
with the approved CMP and CLP.
Reason: In order to protect the environmental quality of the surrounding
area and to ensure that deliveries to the site during construction are
managed effectively so as to minimise impact upon the road network and
to safeguard the amenities of residential properties in the locality and in the
interest of road safety, in accordance with Local Plan policies CC1, CC2,
EQ5, EQ4, EQ6 and EC2 of the adopted Local Plan Policy and Policies 7.15,
7.14 and 5.3 of the London Plan. This condition needs to be pre-
commencement because to assess these details at a later stage may
prevent achievement of Local Plan requirements.
4) No demolition or construction work shall take place on the site except
between the hours of 8am to 6pm on Mondays to Friday and 8am to 4pm
on Saturdays and not at all on Sundays and Public Holidays.
Reason: In order to safeguard the amenities of adjoining residents and the
amenities of the locality in accordance with Local Plan policies CC1, CC2
and EQ5 and Policies 7.15 (Reducing noise and enhancing soundscapes)
and 5.3 (Sustainable design and construction) of the London Plan.
5) Prior to the commencement of development, a construction travel plan shall
be submitted to and approved in writing by the Local Planning Authority in
order to minimise reliance on private car use by all contractors and
construction staff. Such a plan shall include details of measures to
encourage sustainable travel to the site and to minimise site workers
parking on nearby public highways.
Reason: In order to safeguard the amenities of residential properties in the
locality and in the interest of road safety in accordance policies CC1, CC2,
EQ5, EQ4, EQ6, EC2 and EC2 of the adopted Local Plan. This condition
needs to be pre-commencement because to assess these details at a later
stage may prevent achievement of Local Plan requirements.
6) No development (except demolition, archaeological investigations, ground
condition investigations and intrusive site surveys and other enabling
works: site clearance; soil storage; remedial works in respect of any
contamination or any other adverse ground conditions; erection of any
temporary means of enclosure and land raising) shall take place until
details and samples of all facing materials are submitted to and approved in
writing by the Local Planning Authority. The samples and details shall
include:
i) brick (including brick and mortar on-site sample panel min. 2m x 2m);
ii) cladding materials (including system specifications/details and on-site
samples) (where relevant);
iii) window treatment (including sections/reveals and on-site sample);
iv) all privacy measures, (including obscure glazing details, privacy
screens etc.); and
https://www.gov.uk/planning-inspectorate Page 103
v) any other materials/details to be used.
The development shall then be carried out in accordance with the approved
details and maintained as such thereafter.
Reason: In order to safeguard the visual amenity of the area and buildings
in particular and to satisfy the requirements of policies CC1, CC2, CC3 and
SC4 of the Local Plan and London Plan Policy 7.6.
7) Notwithstanding the details shown on the drawings hereby agreed, no
residential unit in Block A shall be occupied until drawings at 1:10 scale of
the directional glass and balustrades to be installed on the western
elevation of Block A (for flats 4 and 5 on each floor in Block A) hereby
approved are submitted to and approved in writing by the local planning
authority. The development shall be carried out in accordance with the
approved details which shall be retained and maintained for the duration of
the use.
Reason: In order to safeguard the visual amenity of the area and to protect
neighbours living conditions in accordance with the requirements of policies
CC1, CC2, CC3 and SC4 of the Local Plan and London Plan Policy 7.6.
8) Prior to the commencement of the development (except demolition,
archaeological investigations, ground condition investigations and intrusive
site surveys and other enabling works: site clearance; soil storage;
remedial works in respect of any contamination or any other adverse
ground conditions; erection of any temporary means of enclosure and land
raising), details of both hard and soft landscape works shall be submitted to
and approved in writing by the Local Planning Authority. The works shall
then be carried out as approved.
The detailed landscaping scheme shall include:
i) soft planting: including any grass and turf areas, trees, planters, shrub
and herbaceous areas including details of species, sizes,
numbers/densities and sections of landscaped areas;
ii) a 'Tree Planting Statement' providing full details, locations,
specifications and construction methods for all purpose;
iii) built tree pits and associated above ground features, including
specifications for tree protection and a stated volume of suitable
growing medium to facilitate and promote the healthy development of
the proposed trees, ensuring each tree has a soil volume equivalent of
0.6 times its canopy area at maturity;
iv) hard landscaping: including ground surfaces, kerbs, edges, ridge and
flexible paving, furniture, steps, refuse disposal points and if applicable
synthetic surfaces for both ground level and roof terrace level (where
relevant);
v) details of (and phasing programme for) the delivery of the River Walk
as part of the construction of the development;
vi) fences and walls and any other boundary treatments; - visitor cycle
parking spaces (in the form of Sheffield stands);
vii) any play spaces and play equipment (equivalent to the provision of
109sqm but aiming for 272sqm);
viii) any signage (Legible London) and information boards;
https://www.gov.uk/planning-inspectorate Page 104
ix) brown (biodiversity) roofs/green walls (where relevant);
x) any CCTV equipment;
xi) an external lighting strategy; and
xii) any other landscaping feature(s) forming part of the scheme.
The submission shall include a management programme for the lifetime of
the development, which shall include: long term design objectives,
management responsibilities and maintenance schedules for all hard and
soft landscape areas, and details of any temporary landscaping (including
boundary treatment) to be provided and management thereof.
All landscaping comprised in the approved details shall be carried out
during the first planting and seeding seasons following completion of
construction works. Any trees or shrubs planted (including any such
replacements) which die within three years from the date of planting shall
be replaced in the next planting season with the same species, and of
comparable maturity. The development shall be carried out strictly in
accordance with the details so approved (including the River Walk delivery
programme) and shall be maintained in accordance with the approved
management programme.
Reason: To ensure a satisfactory appearance of the site and the adjacent
the area, that the development will be accessible to all and in order that the
Local Planning Authority may be satisfied that there will be ecological
enhancements and as to the management of minor artefacts and
structures, in accordance with Local Plan policies CC1, CC2 and GB7 and
Policies 7.19, 5.3, 7.8 and 7.2 of the London Plan.
9) No development (except demolition, archaeological investigations, ground
condition investigations and intrusive site surveys and other enabling
works: site clearance; soil storage; remedial works in respect of any
contamination or any other adverse ground conditions; erection of any
temporary means of enclosure and land raising) shall take place until a
scheme of acoustic insulation and any other necessary means of ventilation
provided, taking into consideration the recommendations of the Noise and
Vibration chapter in the Environmental Statement, is submitted to and
approved by the Local Planning Authority. Such a scheme shall include
details of measures to ensure the residential accommodation does not
exceed the ‘good’ limits contained in BS8233. The details shall include
material specification and predicted performance of the materials proposed.
Any works that form part of such a scheme shall be completed as approved
before any part of the development is first occupied.
Prior to the development being occupied, sound insulation test reports
demonstrating compliance with the scheme approved under this condition,
shall be submitted to and approved in writing by the Local Planning
Authority.
Reason: To ensure satisfactory environmental conditions for the occupiers
of the proposed building in accordance with Local Plan Policy EQ5.
10) Each residential unit shall meet M4(2) Building Regulations as shown on the
hereby approved plans.
Reason: To ensure a socially inclusive and sustainable development in
accordance with Local Plan Policy SC5 and policies 3.5 (Quality and design
https://www.gov.uk/planning-inspectorate Page 105
of housing developments) and 7.2 (Creating an inclusive environment) of
the London Plan.
11) A minimum 10% ‘Wheelchair User Dwellings’ built to Building Regulations
M4(3) standard shall be provided as identified on the approved plans.
Reason: To ensure a socially inclusive and sustainable development in
accordance with Local Plan Policy SC3 and policies 3.5 (Quality and design
of housing developments) and 7.2 (creating an inclusive environment) of
the London Plan.
12) No part of the development shall be occupied until the waste and recycling
facilities for the residential element of the development, as shown on the
approved plans, have been provided and made available for use by
residents. Such facilities shall remain throughout the lifetime of the
development and shall be used for no other purposes.
Reason: To ensure that refuse can be properly stored and removed from
the site as soon as the building is occupied in accordance with Local Plan
Policies CC1, CC2 and EQ7.
13) Notwithstanding the details shown on the approved plans, prior to the
commencement of the development (except demolition, archaeological
investigations, ground condition investigations and intrusive site surveys
and other enabling works: site clearance; soil storage; remedial works in
respect of any contamination or any other adverse ground conditions;
erection of any temporary means of enclosure and land raising), details of
the waste and recycling storage facilities for the commercial use at the
ground floor shall be submitted to and approved in writing by the Local
Planning Authority. No part of the development shall be occupied until the
waste and recycling facilities thereby approved have been provided and
thereafter such facilities shall be retained throughout the lifetime of the
development and shall be used for no other purposed. No refuse or
recycling waste bins shall be stored on the public highway.
Reason: To ensure that refuse can be properly stored and removed from
the site as soon as the building is occupied in accordance with Local Plan
Policies CC1, CC2 and EQ7.
14) Any fixed external plant shall be designed and installed to ensure that noise
emanating from such plant is at least 10dB below the background noise
levels when measured from the nearest sensitive receptors. Plant shall be
set in from the roof boundaries by a minimum of 2m. No further fans,
louvres, ducts or other external plant shall be installed without the written
prior approval of the Local Planning Authority.
Reason: To protect the amenities of existing and future residents and
ensure that the development provides a high quality design in accordance
with Local Plan policies CC1, CC2 and EQ5.
15) Notwithstanding the details shown on the approved plans, prior to the
commencement of the development (except demolition, archaeological
investigations, ground condition investigations and intrusive site surveys
and other enabling works: site clearance; soil storage; remedial works in
respect of any contamination or any other adverse ground conditions;
erection of any temporary means of enclosure and land raising), full details
(including manufacturers’ specifications) of cycle parking facilities (with the
https://www.gov.uk/planning-inspectorate Page 106
provision of Sheffield stands and the reduction of individual cycle stores to
include no more than 50 cycles) shall be submitted to and approved in
writing by the Local Planning Authority. The approved facilities shall
conform to current guidance such as the TfL London Cycling Design
Standards in design and layout as at the date of permission and be fully
implemented and made available for use before the first occupation of the
development and thereafter retained for use at all times without
obstruction.
Reason: To support sustainable transport objectives in accordance with
adopted local plan policy EC2.
16) Prior to the first occupation of the development, the parking, loading and
turning spaces as set out in the approved plans, shall be constructed and
made available for use. These shall include a minimum 20% ‘active’ Electric
Vehicle Charging spaces and 20% ‘passive’ Electric Vehicle Charging
spaces. The parking, loading and turning spaces shall then be retained as
such and shall not be used for any other purposes thereafter. No loading or
unloading shall occur on the public highway.
Reason: In order to prevent obstruction and inconvenience to users of the
adjacent highway and the premises, in the interests of road safety and in
order to promote sustainable transport modes in accordance with policies
CC1, CC2 and EC2 of the adopted Local Plan and London Plan Policy 6.13.
17) Pedestrian visibility splays as shown on the approved plans either side of
the vehicular access on the High Street shall be provided prior to first
occupation of the development and maintained as such thereafter with
nothing over 600mm in height within the visibility splays.
Reason: In the interests of road safety in accordance with policies CC1, CC2
and EC2 of the adopted Local Plan.
18) The development hereby permitted shall not commence (except demolition,
archaeological investigations, ground condition investigations and intrusive
site surveys and other enabling works: site clearance; soil storage;
remedial works in respect of any contamination or any other adverse
ground conditions; erection of any temporary means of enclosure and land
raising) until a finalised roof plan showing the proposed location of the solar
PV panels has been submitted to and approved in writing by the Local
planning Authority to show that the development will be constructed in
accordance with the approved Energy Strategy, and any subsequent
approved revisions.
The development shall be implemented in accordance with the approved
Energy Strategy and shall not commence above ground until full Design
Stage calculations under the Standard Assessment Procedure have been
submitted to and approved in writing by the Local planning Authority to
show that the development will be constructed in accordance with the
approved Energy Strategy, and any subsequent approved revisions, and
achieves a minimum 35% reduction in emissions on Part L Building
Regulations.
Prior to first occupation of the building(s) evidence (e.g. photographs,
installation contracts and As-Built certificates under the Standard
Assessment Procedure) should be submitted to the Local Planning Authority
https://www.gov.uk/planning-inspectorate Page 107
and approved in writing to show that the development has been
constructed in accordance with the approved Energy Strategy, and any
subsequent approved revisions, and achieves a 35% reduction in emissions
on Part L Building Regulations.
Upon final commencement of operation of the solar PV panels, suitable
devices for the monitoring of the solar PV panels shall have been installed,
and the monitored data shall be submitted automatically to a monitoring
web-platform at daily intervals for a period of three years from the point of
full operation.
Reason: To ensure that the development makes the fullest contribution to
minimising carbon dioxide emissions in accordance with London Plan Policy
5.2 and the London Borough of Hounslow Local Plan Policy EQ1.
19) Prior to first occupation of the building(s), evidence should be submitted to
the Local Planning Authority and approved in writing to show that the
development has made sufficient provisions to enable the connection to a
district heating network in the future.
Reason: To ensure that the development makes the fullest contribution to
minimising carbon dioxide emissions in accordance with London Plan
Policies 5.2 and 5.5 and the London Borough of Hounslow Local Plan Policy
EQ1.
20) Prior to commencement of works above ground level, evidence shall be
submitted to the Local Planning Authority and approved in writing to
demonstrate that the internal water consumption of the development will
not exceed 105 litres/person/day in line with The Water Efficiency
Calculator for new dwellings from the Department of Communities and
Local Government.
Prior to first occupation of the building(s) evidence (schedule of fittings and
manufactures literature) should be submitted to the Local Planning
Authority and approved in writing to show that the development has been
constructed in accordance with the approved internal water use
calculations.
Reason: In order to protect and conserve water supplies and resources in
accordance with London Plan Policy 5.15 and the London Borough of
Hounslow Local Plan Policy EQ2.
21) No development (except demolition, archaeological investigations, ground
condition investigations and intrusive site surveys and other enabling
works: site clearance; soil storage; remedial works in respect of any
contamination or any other adverse ground conditions; erection of any
temporary means of enclosure and land raising) shall take place until
details have been submitted to and approved by the Local Planning
Authority which show that:
i) At least three of the key elements of the building envelope (external
walls, windows roof, upper floor slabs, internal walls, floor
finishes/coverings) are to achieve a rating of A+ to D in the Building
Research Establishment (BRE) The Green Guide of specification.
ii) At least 50% of timber and timber products are to be sourced from
accredited Forest Stewardship Council (FSC) or Programme for the
Endorsement of Forestry Certification (PEFC) scheme.
https://www.gov.uk/planning-inspectorate Page 108
iii) Detail measures taken to avoid construction or insulation materials
which will release toxins into the internal and external environment,
including those that deplete stratospheric ozone.
The development shall not be occupied until evidence (e.g. photographs
and copies of installation contracts) has been submitted to the Local
Planning Authority to demonstrate that the development has been carried
out in accordance with these requirements and it has been approved in
writing.
Reason: In order to ensure the sustainable sourcing of materials in
accordance with the London Plan Policy 5.3 and the Mayor of London’s
Sustainable Design and Construction SPG.
22) Prior to commencement of works (except demolition, archaeological
investigations, ground condition investigations and intrusive site surveys
and other enabling works: site clearance; soil storage; remedial works in
respect of any contamination or any other adverse ground conditions;
erection of any temporary means of enclosure and land raising), final
detailed drainage designs (including drawings) of the proposed drainage
scheme (taking into consideration the information in the approved
documents and the following correspondence emails 14th December 2017)
shall be submitted to and approved in writing by the Local Planning
Authority. These details shall specifically provide evidence of the connection
to the Thames Water Sewer Network and confirmation that the
Environment Agency accepts the discharge in the River Thames at an
uncontrolled rate.
Reason: To prevent the risk of flooding to and from the site in accordance
with relevant policy requirements including but not limited to London Plan
Policy 5.13, the Non-Statutory Technical Standards for Sustainable
Drainage Systems and Hounslow Council's Local Plan Policy EQ3.
23) Prior to occupation, evidence that the drainage system has been built as
per the final detailed drainage designs (approved in condition 22) through
the submission of photographs and copies of installation contracts, and
written confirmation that the drainage features will be managed as per the
detailed maintenance plan for the lifetime of the development, shall be
submitted to and approved in writing by the Local Planning Authority.
Reason: To ensure that the methods to mitigate the risk of surface water
flooding have been constructed as agreed and that the drainage system is
suitably managed.
24) Before the development hereby permitted commences, except demolition:
i) Details of an intrusive site investigation are required in addition to the
phase 1 desk study previously submitted. These details shall be
submitted to, and approved in writing by, the Local Planning Authority.
The site shall be investigated by a competent person to identify the extent
and nature of contamination. The report should include a tiered risk
assessment of the contamination based on the proposed end use of the
site. Additional investigation may be required where it is deemed
necessary.
ii) If required, a scheme for decontamination of the site shall be
submitted to the Local Planning Authority, for written approval. The
https://www.gov.uk/planning-inspectorate Page 109
scheme shall account for any comments made by the Local Planning
Authority before the development hereby permitted is first occupied.
During the course of the development:
iii) The local planning authority shall be notified immediately if additional
contamination is discovered during the course of the development. A
competent person shall assess the additional contamination, and shall
submit appropriate amendments to the scheme for decontamination in
writing to the Local Planning Authority for approval before any work on
that aspect of development continues.
Before the development is first brought into use:
iv) The agreed scheme for decontamination referred to in clauses ii) and
iii) above, including amendments, shall be fully implemented and a
written validation (closure) report submitted to the Local Planning
Authority for approval.
Reason: Contamination is known or suspected on the site due to a former
land use. The Local Planning Authority therefore wishes to ensure that the
development can be implemented and occupied with adequate regard for
public and environmental safety, and to satisfy the requirements of policy
EQ8 of the adopted Local Plan.
25) Prior to the installation of the CHP plant, an Air Quality Neutral
Assessments for the building, shall be submitted to and approved in writing
by the Local Planning Authority. Such assessments shall be undertaken
against the benchmarks established in the Air Quality chapter in the
Environmental Statement and the Sustainable Design & Construction SPG,
ensuring that any boilers installed are Ultra Low Emission
(<40mgNOx/kWh).
Reason: To ensure the development achieves air quality neutral status in
accordance with Local Plan Policy EQ4 and the Sustainable Design and
Construction SPG.
26) Prior to the commencement of the development (except demolition,
archaeological investigations, ground condition investigations and intrusive
site surveys and other enabling works: site clearance; soil storage;
remedial works in respect of any contamination or any other adverse
ground conditions; erection of any temporary means of enclosure and land
raising), a Biodiversity Enhancement Strategy, incorporating the
recommendations of the Ecological Assessment Report by Peter Brett
Associates dated July 2017 and the incorporation of at least 2 bird boxes, 2
bat boxes and 1 log pile, shall be submitted to and approved in writing by
the Local Planning Authority. The approved Biodiversity Enhancement
Strategy shall be implemented prior to any building within that phase being
first occupied. Any enhancement measures shall be maintained throughout
the lifetime of the development or in accordance with the strategy set out
in the Landscape MPlan.
Reason: To promote biodiversity and ecological enhancements to the site
and surrounding area in accordance with Local Plan policies CC1, CC2 and
GB7 and Policy 7.19 of the London Plan.
27) Prior to the commencement of development, a scheme for the protection of
the retained trees, in accordance with BS5837:2012 shall be submitted to
https://www.gov.uk/planning-inspectorate Page 110
and approved in writing by the Local Planning Authority. The scheme shall
include:
a) A plan to a scale and level of accuracy appropriate to the proposal that
shows the position, crown spread and Root Protection Area of every tree on
site in relation to the approved plans and particulars. The positions of all
trees to be removed shall be indicated on this plan.
b) A schedule of tree works for all the retained trees, specifying pruning
and other remedial or preventative work, whether for physiological, hazard
abatement, aesthetic or operational reasons.
All the tree work shall be carried out in accordance with BS3998:2010 –
Tree Work - Recommendations.
c) The details and positions (shown on plan at paragraph (a) above) of the
Tree Protection Barriers, identified separately where required for different
phases of construction work. The Tree Protection Barriers must be erected
prior to each phase of construction commencing and remain in place,
undamaged, for the duration of that phase. No works shall take place on
the next phase until the Tree Protection Barriers are repositioned for that
phase.
d) The details and positions of any underground service runs shall be
shown on the plan required at paragraph (a).
The erection of fencing for the protection of any retained tree or hedge
shall be carried out in complete accordance with BS5837:2012, before any
equipment, machinery, or materials are brought onto the site for the
purposes of development or other operations. The fencing shall be retained
intact for the full duration of the development until all equipment, materials
and surplus materials have been removed from the site. If the fencing is
damaged all operations shall cease until it is repaired in accordance with
the approved details. Nothing shall be stored or placed in any fenced area
in accordance with this condition and the ground levels within those areas
shall not be altered, nor shall any excavations be made without the written
approval of the Local Planning Authority.
Reason: To enable the Local Planning Authority to ensure the retention of
the maximum number of trees on the site and their protection from
damage, in the interests of biodiversity and visual amenity area and to
accord with policies CC1, CC2 and GB7 of the adopted Local Plan. This
condition needs to be pre-commencement because to assess these details
at a later stage may prevent achievement of Local Plan requirements.
28) No demolition or development shall take place until a stage 1 written
scheme of investigation (WSI) has been submitted to and approved by the
local planning authority in writing. For land that is included within the WSI,
no demolition or development shall take place other than in accordance
with the agreed WSI, and the programme and methodology of site
evaluation and the nomination of a competent person(s) or organisation to
undertake the agreed works. If heritage assets of archaeological interest
are identified by stage 1 then for those parts of the site which have
archaeological interest a stage 2 WSI shall be submitted to and approved
by the local planning authority in writing. For land that is included within
https://www.gov.uk/planning-inspectorate Page 111
the stage 2 WSI, no demolition/development shall take place other than in
accordance with the agreed stage 2 WSI which shall include:
A. The statement of significance and research objectives, the programme
and methodology of site investigation and recording and the nomination of
a competent person(s) or organisation to undertake the agreed works
B. The programme for post-investigation assessment and subsequent
analysis, publication & dissemination and deposition of resulting material.
This part of the condition shall not be discharged until these elements have
been fulfilled in accordance with the programme set out in the stage 2 WSI.
Reason: Heritage assets of archaeological interest may survive on the site.
The planning authority wishes to secure the provision of appropriate
archaeological investigation, including the publication of results, in
accordance with adopted Local Plan Policy CC4. This condition needs to be
pre-commencement because to assess these details at a later stage may
prevent achievement of Local Plan requirements.
29) Prior to any part of the development being occupied, the provision of
riparian lifesaving equipment shall be provided along the river’s edge to a
standard recommended in the 1991 Hayes Report on the Inquiry into River
Safety. The lifesaving equipment shall be kept in good working order and
made available for use at all times.
Reason: To ensure that the proposed development does not prejudice
conditions of general safety.
30) Prior to the commencement of development, a scheme for river wall
maintenance and improvement works shall be submitted to and approved
in writing by the Local Planning Authority. Flood defences are to be
commensurate with the lifetime of the development circa 100 years. The
development shall then only proceed in accordance with the approved
scheme and shall be maintained as such thereafter.
Reason: To protect the development from tidal flooding to ensure that the
tidal defence wall is brought up to standard and minimise the risk of
flooding. To show how access will be achieved to undertake
inspections/maintenance/repairs/replacement and enhancement of the
flood defence in future. This condition needs to be pre-commencement
because to assess these details at a later stage may prevent achievement
of Local Plan requirements.
END OF CONDITIONS
https://www.gov.uk/planning-inspectorate Page 112
www.gov.uk/mhclg
RIGHT TO CHALLENGE THE DECISION IN THE HIGH COURT
These notes are provided for guidance only and apply only to challenges under the
legislation specified. If you require further advice on making any High Court challenge, or
making an application for Judicial Review, you should consult a solicitor or other advisor or
contact the Crown Office at the Royal Courts of Justice, Queens Bench Division,
Strand,London,WC2 2LL (0207 947 6000).
The attached decision is final unless it is successfully challenged in the Courts. The Secretary of
State cannot amend or interpret the decision. It may be redetermined by the Secretary of State only
if the decision is quashed by the Courts. However, if it is redetermined, it does not necessarily follow
that the original decision will be reversed.
SECTION 1: PLANNING APPEALS AND CALLED-IN PLANNING APPLICATIONS
The decision may be challenged by making an application for permission to the High Court
under section 288 of the Town and Country Planning Act 1990 (the TCP Act).
Challenges under Section 288 of the TCP Act
With the permission of the High Court under section 288 of the TCP Act, decisions on called-in
applications under section 77 of the TCP Act (planning), appeals under section 78 (planning) may
be challenged. Any person aggrieved by the decision may question the validity of the decision on
the grounds that it is not within the powers of the Act or that any of the relevant requirements have
not been complied with in relation to the decision. An application for leave under this section must
be made within six weeks from the day after the date of the decision.
SECTION 2: ENFORCEMENT APPEALS
Challenges under Section 289 of the TCP Act
Decisions on recovered enforcement appeals under all grounds can be challenged under section 289
of the TCP Act. To challenge the enforcement decision, permission must first be obtained from the
Court. If the Court does not consider that there is an arguable case, it may refuse permission.
Application for leave to make a challenge must be received by the Administrative Court within 28 days
of the decision, unless the Court extends this period.
SECTION 3: AWARDS OF COSTS
A challenge to the decision on an application for an award of costs which is connected with a
decision under section 77 or 78 of the TCP Act can be made under section 288 of the TCP Act if
permission of the High Court is granted.
SECTION 4: INSPECTION OF DOCUMENTS
Where an inquiry or hearing has been held any person who is entitled to be notified of the decision
has a statutory right to view the documents, photographs and plans listed in the appendix to the
Inspector’s report of the inquiry or hearing within 6 weeks of the day after the date of the decision. If
you are such a person and you wish to view the documents you should get in touch with the office at
the address from which the decision was issued, as shown on the letterhead on the decision letter,
quoting the reference number and stating the day and time you wish to visit. At least 3 days notice
should be given, if possible.