Case Reference: 3226914

Our ref: APP/G6100/V/19/3226914
Mr Mark Connell Your ref: GLA/4279 & 01508/A/P6
JLL
30 Warwick Street
London
W1B 5NH
10 September 2020
Dear Sir
TOWN AND COUNTRY PLANNING ACT 1990 – SECTION 77
APPLICATION MADE BY L&Q
LAND AT CITROEN SITE, CAPITAL INTERCHANGE WAY, BRENTFORD TW8 0EX
APPLICATION REF: GLA/4279 & 01508/A/P6
1. I am directed by the Secretary of State to say that consideration has been given to the
report of David Nicholson RIBA IHBC, who held a public local inquiry on 14-24 January
and 4-6 February 2020 into your client’s application for planning permission for
redevelopment of the site to provide a mixed use scheme of 441 residential units
(Class C3) including 50% affordable housing with ancillary facilities, flexible uses (within
Classes A1, A2, A3 and B1) and a nursery (Class D1). Comprising buildings of 12, 13,
16, 17 and 18 storeys in height with associated cycle parking, car parking, play space,
landscaping and public realm improvements, ref. GLA/4279 & 01508/A/P6, dated 3
November 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 application be approved.
4. For the reasons given below, the Secretary of State agrees with the Inspector’s
conclusions, except where noted, and agrees with his recommendation. He has decided
to approve the application. 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 2017. Having taken account of the Inspector’s
comments at IR1.5, notwithstanding the criticisms by the Royal Borough of Kensington
Ministry of Housing, Communities & Local Government Tel: 0303 444 42853
Phil Barber, Decision Officer Email: PCC@communities.gov.uk
Planning Casework Unit
and Chelsea, the Secretary of State is satisfied that the Environmental Statement and ES
Addendum May 2018 complies with the above Regulations and that sufficient information
has been provided for him to assess the environmental impact of the proposal.
Policy and statutory considerations
6. 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.
7. In this case the development plan consists of the 2016 London Plan (LonP) and the 2015
Hounslow Local Plan (HLP). The Secretary of State considers that relevant development
plan policies include those set out at IR3.3-3.13.
8. The Secretary of State also agrees that the Richmond Local Plan is a material
consideration, but for the reasons given at IR15.91 gives it limited weight.
9. 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’), as well as those set out at IR3.17-3.27.
10. 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
11. The emerging plan comprises Intend to Publish London Plan (IPLP) 2019. The Secretary
of State considers that the emerging policies of most relevance to this case include D9
Tall Buildings; H4 Delivering Affordable Housing; HC1 Heritage conservation and growth
and HC2 World Heritage sites.
12. 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 London Plan is at an advanced stage of preparation, and the
Secretary of State has directed the areas where changes must be made. However,
details of the way in which the Plan will deliver the aims set out in the Secretary of State’s
directions are not yet finalised. The Secretary of State considers that policies in the
emerging Plan where no modifications have been directed (which includes the policies
set out in paragraph 11 above), carry significant weight.
Main issues
Impacts on heritage assets
13. The Secretary of State has given careful consideration to the Inspector’s analysis of
heritage issues at IR15.3-15.51. He agrees, for the reasons given at IR15.5, that any
harm to designated heritage assets would be from the impact of the development on the
significance of these derived from their settings. He agrees with the Inspector at IR15.6
Universal Value (OUV) and the significance of the World Heritage Site (WHS),
Registered Park and Gardens (RPG) and Conservation Area (CA). For the reasons given
at IR15.7-IR15.21 he agrees with the Inspector that in terms of the ability of the public to
appreciate the Orangery, the effect of the scheme in the setting would be negligible
(IR15.21) However, he also agrees with the Inspector at IR15.22 that listed buildings
should be preserved for their own sake and the setting of the Orangery is important to the
OUV of the WHS. The Secretary of State agrees for the reasons given at IR15.22 that
the degree of erosion to the significance of the listed building, and so that of the WHS,
would be slight. Overall, the Secretary of State agrees (IR15.23-15.24) that the proposal
would cause less than substantial harm to the significance of the Orangery, and thus the
OUV and WHS, and that this harm would be nowhere near the level of substantial. For
the reasons given at IR15.25, and taking into account HE’s findings on this matter
(IR9.21) he concludes that the level of harm to the significance of the Orangery, and so
on the OUV of the WHS, on account of impact on its setting the harm is ‘less than
substantial’, and that within this scale, the harm is moderate.
14. For the reasons given by the Inspector at IR15.26-15.31 the Secretary of State agrees
that the cumulative impact of the proposal, when viewed with existed buildings, on the
significance of Kew Gardens, would be minor (IR15.30). He further agrees at IR15.30
that when the cumulative impact is taken together with the direct impact he finds above,
this would amount to a little, but not much, more than moderate harm, and that this would
not come close to a substantial level of harm within the ‘less than substantial’ scale. The
Secretary of State agrees with the Inspector’s conclusions at IR15.31 on the question of
a tipping point.
15. The Secretary of State has given careful consideration to the Inspector’s analysis of the
proposed planting scheme at IR15.32-15.34. He agrees for the reasons given at
IR15.33 the screening would take time to materialise and that there might be a number of
reasons why it might not be effective. He further notes that the Council has not agreed to
support the scheme or to accept the funding for it (IR15.34). The Secretary of State
concludes the planting scheme is not necessary to make the development acceptable in
planning terms, and that therefore the Undertaking to fund the scheme would not comply
with Regulation 122 of the CIL Regulations. Unlike the Inspector, the Secretary of State
has not taken the Unilateral Undertaking into account in determining the application or
given it any weight. This does not affect the Secretary of State’s overall decision.
16. The Secretary of State has had regard to the Inspector’s analysis of potential impacts on
the Strand-on-the-Green Conservation Area and its associated listed buildings at
IR15.35-15.41. For the reasons given he agrees that the scheme would have a harmful
effect on the contribution the settings make to the significance of the group of listed
buildings (IR15.37), and thus to the significance of the Conservation Area as a whole. For
the reasons given at IR15.39 he concludes that this harm would be moderate on the ‘less
than substantial’ scale. For the reasons given at IR15.40 he further agrees overall the
weight to the harm to the significance of the SotG CA and its listed buildings on account
of impact on their settings, and the cumulative harm, should be assessed, within the
scale of ‘less than substantial’ harm as a little more than moderate.
17. For the reasons given at IR15.42-15.45 the Secretary of State agrees with the Inspector’s
conclusions in relation to Kew Green, the Wellesley Road Conservation Area and Kew
Bridge or its Conservation Area.
18. The Secretary of State has given careful consideration to the Inspector’s analysis of the
reasons given he agrees that there is a reasonable prospect that a lower scheme might
have reduced impacts on the settings of the Orangery/WHS and the Strand-on-the-Green
CA/listed buildings while still offering a reasonable amount of housing and affordable
housing. However, he also agrees (IR15.68) that the weight to be given to such an
alternative should not be substantial.
19. The Secretary of State attaches great weight to the conservation of the heritage assets,
in line with paragraph 193 of the Framework. 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. The Secretary of State agrees with the Inspector that
there would be conflict with LonP Policy 7.8, 7.10, emerging IDLP policies HC1 and HC2,
and potentially HLP CC4 (IR15.39) which requires a balance between harm to
designated heritage assets and public benefits (IR15.85).
Other harm
20. For the reasons given at IR15.49 the Secretary of State agrees that the levels of daylight
in 75 of the habitable rooms would fail to meet BRE standards, and that this weighs
against the proposal. He further agrees, for the reasons given at IR15.50 that the level of
contributions to fund improvements to Transport for London services should not weigh
against the proposal. Given his conclusions on the impacts on the Wellesley Road
Conservation Area, the Secretary of State agrees with the Inspector at IR15.51 that the
absence of any reference to the low-rise, high quality townscape within it would not weigh
against the proposal.
Housing
21. The Secretary of State notes that the applicant does not dispute that the Council can
deliver a 5-year supply of housing land (IR6.18), and he has proceeded on that basis.
The Secretary of State notes that the proposals would provide 441 new homes, 218 of
which would be affordable (IR15.59). He has taken into account the acute housing
shortage right across London (IR15.61) and the Inspector’s conclusions on affordable
housing at IR.60. For these reasons the Secretary of State considers that overall, the
benefits of housing should be given substantial weight. The Secretary of State agrees
with the Inspector at IR15.86 that the proposal does not conflict with Lon P policies 3.3-
3-5 and 3.8-3.13, and HLP policies SC1, SC2 and SC3, and emerging IPLP policies GG2
and GG5.
Design
22. The Secretary of State has considered the Inspector’s reasoning given at IR15.52-15.58
and for the reasons given agrees that the positive aspects of the design would be
negated by the flaws with regard to daylight and heritage in particular, taking account of
other criticisms as well. As such he agrees that the design is neutral in the planning
balance (IR15.85). The Secretary of State agrees that given the Inspector’s conclusions
on design, there is no conflict with HLP policy SC4 (15.86).
Other benefits of the proposal
23. The Secretary of State agrees (IR15.62) that the proposals would be on a brownfield site
in a highly sustainable location. He further notes (IR15.62) that construction would bring
250 jobs, though agrees that these would be short term, and that there is little evidence
that the proposal would bring a massive uplift to the area around it. He further agrees
that the provision of a nursery is a benefit of modest weight. The Secretary of State
agrees that economic activity and regeneration would be further benefits but taken
together these add little to the substantial benefits of housing provision (IR15.63). As
such he agrees with the Inspector that relative to his conclusions on the importance of
housing and of protecting the historic environment, the other benefits attract a little
weight in favour of the scheme.
24. For the reasons given at IR15.88 the Secretary of State agrees that emerging policies
IDLP GG5 and GG2 support the scheme. He further agrees that the limited exploration
of alternatives should not breach the requirements of IDLP policy D.9 (IR15.89).
Planning Conditions
25. The Secretary of State has given consideration to the Inspector’s analysis at IR13.1-
13.2, 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 A
should form part of his decision.
Planning obligations
26. The Secretary of State has given further consideration to the Inspector’s analysis of the
Unilateral Undertaking at IR14.2 and IR15.32-15.34. For the reasons set out at
paragraph 15 above, he concludes that it does not comply with Regulation 122 of the CIL
Regulations and he has thus not taken it into account or given it any weight.
27. Having had regard to the Inspector’s analysis at IR14.1, the planning obligation dated 4
March 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 IR14.1 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
28. For the reasons given above, the Secretary of State agrees that the application is not in
accordance with LonP Policies 7.8 and 7.10 of the development plan, agreeing with the
Inspector at IR15.84 that such policies do not require a balancing exercise. He agrees
(IR15.86) that the application is in accordance with LonP Policies 3.3-3.5 and 3.8-3.13
and HLP policies SC1, SC2, SC3, SC4 and SV1.
29. In reaching his conclusions on whether the proposal is in line with the development plan
overall, the Secretary of State agrees (IR15.87) that a conclusion on the heritage test is
necessary. In line with the Framework he affords the less than substantial harms he has
identified to heritage assets great weight.
30. Against this he weighs the provision of housing, including affordable housing, which he
considers carry substantial weight in favour of the scheme. He considers that the nursery
provision carries modest weight and the regeneration and economic benefits add a little
weight.
31. Overall, the Secretary of State considers that the benefits of the scheme are collectively
sufficient to outbalance the identified ‘less than substantial’ harm to heritage assets he
has identified at paragraphs 13-19 of this decision letter. He considers that the balancing
exercise under paragraph 196 of the Framework is therefore favourable to the proposal.
32. Given this conclusion, he agrees that the proposal is in accordance with the development
plan overall (IR15.87). He further agrees that in the circumstances of this case, even if he
had concluded there was overall conflict with the development plan, the material
considerations would still have justified the same overall conclusion on the case
(IR15.94). The Secretary of State 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.
33. In line with paragraph 193 of the Framework and s.66(1) of the Act he gives great weight
to the heritage harms he has identified. The Secretary of State gives further moderate
weight to the harm to the living conditions of proposed occupiers in terms of daylight
standards. The material considerations weighing in favour of the scheme are set out in
paragraph 30 above.
34. 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.
35. The Secretary of State therefore concludes that the application should be approved,
subject to conditions.
Formal decision
36. 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 A of this decision letter for redevelopment of the site to
provide a mixed use scheme of 441 residential units (Class C3) including 50% affordable
housing with ancillary facilities, flexible uses (within Classes A1, A2, A3 and B1) and a
nursery (Class D1). Comprising buildings of 12, 13, 16, 17 and 18 storeys in height with
associated cycle parking, car parking, play space, landscaping and public realm
improvements, ref. GLA/4279 & 01508/A/P6, dated 3 November 2017.
37. 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
38. 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.
39. A copy of this letter has been sent to London Brough of Hounslow and the Mayor of
London, and notification has been sent to others who asked to be informed of the
decision.
Yours faithfully
Phil Barber
Authorised by the Secretary of State to sign in that behalf
Annex A Planning conditions
1. Time limit
The development must be commenced within three years from the date of this permission.
2. Approved plans and documents
The development hereby permitted shall be carried out in accordance with the
following approved plans and documents:
Proposed drawings
Site plans
1699_DWG_PL_xx_00_001 R01 1699_DWG_PL_xx_00_002 R00
Proposed site plan Proposed block plan
38397-PBA-XX-D-C 501-SO Rev 1
Proposed indicative surface water
drainage strategy
Elevations
1699_DWG_PL_xx_00_100 R03 1699_DWG_PL_xx_00_102 R03
Proposed site elevation south-east Proposed site elevation north-west
1699_DWG_PL_xx_00_101 R03 DWG_PL_xx_00_103 R03 Proposed
Proposed site elevation north-east site elevation south-west
Floor Plans
1699__DWG_PL_xx_20_100 R07 1699__DWG_PL_xx_20_110 R04
Proposed ground floor plan Proposed tenth floor plan
1699__DWG_PL_xx_20_101 R05 1699__DWG_PL_xx_20_111 R04
Proposed First (podium) floor plan Proposed eleventh floor plan
1699__DWG_PL_xx_20_102 R04 1699__DWG_PL_xx_20_112 R04
Proposed second floor plan Proposed twelfth floor plan
1699__DWG_PL_xx_20_103 R04 1699__DWG_PL_xx_20_113 R04
Proposed third floor plan Proposed thirteenth floor plan
1699__DWG_PL_xx_20_104 R04 1699__DWG_PL_xx_20_114 R04
Proposed fourth floor plan Proposed fourteenth floor plan
1699__DWG_PL_xx_20_105 R04 1699__DWG_PL_xx_20_115 R04
Proposed fifth floor plan Proposed fifteenth floor plan
1699__DWG_PL_xx_20_106 R04 1699__DWG_PL_xx_20_116 R04
Proposed sixth floor plan Proposed sixteenth floor plan
1699__DWG_PL_xx_20_107 R04 1699__DWG_PL_xx_20_117 R04
Proposed seventh floor plan Proposed seventeenth floor plan
Proposed eight floor plan Proposed roof plan
1699__DWG_PL_xx_20_109 R04
Proposed ninth floor plan
Elevations and sections
1699__DWG_PL_01_20_200 R01 1699_DWG_PL_01_20_303 R02
Proposed Block 1 Section AA Proposed Block 1 South West elevation
1699__DWG_PL_01_20_201 R01 1699_DWG_PL_0203_20_300 R02
Proposed Block 1 Section BB Proposed Block 2 and 3 East
Elevations
1699_DWG_PL_0203_20_200 R01 1699_DWG_PL_0203_20_301 R02
Proposed Block 2 and 3 Section AA Proposed Block 2 and 3 North
Elevations
1699_DWG_PL_0203_20_201 R01 1699_DWG_PL_0203_20_302 R02
Proposed Block 2 and 3 Section BB Proposed Block 2 and 3 South
Elevations
1699_DWG_PL_0203_20_203 R01 1699_DWG_PL_0203_20_303 R02
Proposed Block 2 and 3 Section CC Proposed Block 2 and 3 West
Elevations
1699_DWG_Pl_0405_20_200 R01 1699_DWG_PL_0405_20_300 R02
Proposed Block 4 and 5 Section AA Proposed Block 4 and 5 North East
Elevations
1699_DWG_Pl_0405_20_200 R01 1699_DWG_PL_0405_20_301 R02
Proposed Block 4 and 5 Section BB Proposed Block 4 and 5 North West
Elevations
1699_DWG_PL_01_20_300 R02 1699_DWG_PL_0405_20_302 R02
Proposed Block 1 North East elevation Proposed Block 4 and 5 South East
Elevations
1699_DWG_PL_01_20_301 R02 1699_DWG_PL_0405_20_303 R02
Proposed Block 1 North West elevation Proposed Block 4 and 5 South West
Elevations
1699_DWG_PL_01_20_302 R02
Proposed Block 1 South East elevation
3. CIL Phasing Plan
The development shall be carried out in accordance with a phasing plan to be submitted to
and approved in writing by the Local Planning Authority (LPA) prior to the commencement of
development.
4. Detailed drawings, external materials and balcony screens
Notwithstanding the details shown on the approved plans, prior to the commencement of the
development (other than demolition, site clearance and ground works):
a) details and appropriate samples of the materials to be used for the external surfaces of
the buildings and hard surfaced areas of the development, including details of change in
elevational treatment, shall be submitted to and approved in writing by the LPA;
b) sample panels of the building materials and hard surfacing shall be provided on site to
be inspected and approved in writing by the LPA and thereafter shall be retained on site
during the construction of the development;
c) details of the following features and elements of the development shall be submitted to
and approved in writing by the LPA:
i. Brick bonding, and brick and cladding detailing, to be shown on annotated plans at a
scale of not less than 1:20, unless otherwise agreed in writing with the LPA.
ii. External windows, balconies, winter gardens, doors, screens, louvres and balustrading
to be shown on annotated plans at a scale of not less than 1:10 unless otherwise agreed
in writing with the LPA.
iii. Depth of window reveals, colonnades and soffits to be shown on annotated plans at a
scale of not less than 1:20 unless otherwise agreed in writing with the LPA.
iv. Rainwater goods to be shown on annotated plans at a scale of not less than 1:10 unless
otherwise agreed in writing with the LPA.
v. Privacy screens to be shown on annotated plans at a scale of not less than 1:10 unless
otherwise agreed in writing with the LPA.
vi. Shop fronts, entrances and openings to be shown on annotated plans at a scale of not
less than 1:20 unless otherwise agreed in writing with the LPA.
The development of each building shall be carried out in accordance with the approved
details prior to the first occupation of the relevant building.
5. Building and Site Management
Prior to the first occupation of each building to be provided as part of the development, a
Management Strategy in respect of the relevant building shall be submitted to and approved
in writing by the LPA.
Each Management Strategy shall include:
a) Details of security measures including location of security/concierge office, location
and details of CCTV;
b) Details regarding the receipt, management and distribution of post, parcels,
supermarket and other deliveries to the residential units;
c) Details of the controlled areas of the development and details of those who will have
access to each of the identified zones;
d) Points of access and how access will be controlled;
e) Confirmation of disabled access arrangements;
f) Refuse and Recycling Storage and Collection (Operational Waste Management
Strategy retail and residential); and
g) Measures and procedures to prevent and deal with antisocial behaviour and crime.
The site shall be managed in accordance with the approved strategy for the life of the
development or as otherwise agreed in writing by the LPA.
6. Final Drainage Design
Prior to commencement of construction works (excluding site investigations, demolition and
site clearance), final detailed drainage design including drawings, supporting calculations
and an updated Drainage Assessment Form shall be submitted to the Lead Local Flood
Authority for review and approval, aligned with the June 2018 Revised Surface Water
Drainage Strategy and associated drawings. Evidence shall also be included to demonstrate
that the offsite surface water sewers are suitable to receive the runoff.
A detailed management plan confirming routine maintenance tasks for all drainage
components, including the green/blue roofs, permeable paving and attenuation tank, shall be
submitted to and approved in writing by the LPA prior to occupation of the development to
demonstrate how the drainage system is to be retained for the lifetime of the development.
7. Implementation of drainage design
No building to be constructed as part of the development shall be occupied until evidence
(photographs and installation contracts) has been submitted to and agreed in writing by the
LPA to demonstrate that the sustainable drainage scheme for the site has been completed in
accordance with the details approved pursuant to Condition 6. The sustainable drainage
scheme shall be managed and retained thereafter in accordance with the agreed
management and maintenance plan for all of the proposed drainage components.
8. Landscaping, public realm, play space and boundary treatments
A landscaping and public realm scheme for the public and private areas in the development
as shown in section 4.1 of the Design and Access Addendum (dated April 2018) shall be
submitted to and approved in writing by the LPA prior to the commencement of public realm
and landscape works.
The landscaping and public realm scheme shall include the following details in respect of the
development:
a) The overall layout, including extent, type of hard and soft landscaping and proposed
levels or contours;
b) The location, species and sizes of proposed trees and tree pit design;
c) Details of soft plantings, including any grassed/turfed areas, shrubs and herbaceous
areas;
d) Enclosures including type, dimensions and treatments of any walls, fences, screen walls,
barriers, railings and hedges;
e) Hard landscaping, including ground surface materials, kerbs, edges, ridge and flexible
pavements, unit paving, steps and if applicable, any synthetic surfaces;
f) Street furniture, including type, materials and manufacturer’s specification if appropriate;
g) Details of children’s play space equipment and structures, including key dimensions,
materials and manufacturer’s specification if appropriate;
h) Any other landscaping features forming part of the scheme, including amenity spaces
and green/brown roofs;
i) A statement setting out how the landscape and public realm strategy provides for
disabled access, ensuring equality of access for all, including children, seniors,
wheelchairs users and people with visual impairment or limited mobility; and
j) A wayfinding and signage strategy.
k) Details of how all of the landscaped areas (public and private) will be managed and
maintained.
All landscaping in accordance with the approved scheme shall be completed or planted (as
applicable) during the first planting season following practical completion of the development.
The landscaping and tree planting shall have a two-year maintenance/watering provision
following planting and any trees or shrubs which die within five years of completion of the
development shall be replaced with the same species or an alternative to be approved in
writing by the LPA.
The development shall be carried out strictly in accordance with the approved details and
shall be retained as such thereafter.
9. Cycle parking
Details of the secure/enclosed cycle parking spaces for the residential units, visitors and
commercial/retail tenants, including their location and type of storage, shall be submitted to
and approved in writing by the LPA prior to occupation of any part of the development.
The approved measures shall be installed prior to occupation of the relevant building to
which the cycle parking spaces relate and retained permanently thereafter in accordance
with the approved details unless otherwise approved in writing by the LPA.
10. Noise fixed plant
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. All such fixed external plant shall be installed in accordance with
the approved plans. No fans, louvres, ducts or other external plant that are not shown on the
approved plans shall be installed without the prior written approval of the LPA.
11. Noise, vibration and internal residential environment
Prior to the:
a) commencement of any development above ground floor slab level, details of the built
fabric and ventilation strategy within the residential part of the development shall be
submitted to and approved in writing by the LPA. Such details shall ensure that the approved
residential units are insulated against external noise in order to achieve internal noise levels,
taking into account any ventilation requirements, which do not exceed the guideline values
contained in table 4 of BS 8233:2014;
b) occupation of the A1-A3, B1 and D1 uses forming part of the development, details of
the built fabric and ventilation strategy in respect of those uses shall be submitted to and
approved in writing by the LPA. Such details shall ensure that the approved residential uses
are insulated against noise from the A1- A3, B1 and D1 uses in order to provide effective
resistance to the transmission of airborne and impact sound horizontally and/or vertically
between those uses and the residential uses. The approved details shall be installed prior to
the occupation of the A1-A3, B1 and/or D1 uses (as relevant) and thereafter retained.
All works which form part of the strategies approved above shall be completed and evidence,
that demonstrates compliance with the approved strategies and verifying compliance with
the relevant minimum standard, shall be submitted to and approved in writing by the LPA
prior to first occupation of the relevant uses. The works shall be retained in accordance with
the approved details for the lifetime of the development.
12. External lighting and security
Notwithstanding the plans hereby approved, details of:
• CCTV;
• General external lighting;
• Security lighting;
• Access control measures for residential core entrances;
• Secured by Design accreditation measures and counter terrorism measures;
on or around the buildings or within the public realm in the development shall be submitted to
and approved in writing by the LPA and installed prior to the first occupation of the relevant
building to which the above measures relate.
The details shall include the location and full specification of all lamps; light levels/spill;
illumination; cameras (including view paths); and support structures. The details will also
include an assessment of the impact of any such lighting on the surrounding residential
environment.
The development shall be carried out strictly in accordance with the details so approved and
shall be retained as such thereafter.
13. Sustainability standards for non-residential uses
The development shall achieve an ‘Excellent’ rating under BREEAM UK New Construction
2014 (or such equivalent standard that replaces this) for the Shell/Shell and Core stage and
an ‘Excellent’ rating under BREEAM Refurbishment and Fit-out 2014.
a) Within 6 months of work starting on site, unless otherwise agreed with the LPA in writing,
a BREEAM UK New Construction 2014 (or such equivalent standard that replaces this)
Shell and Core Interim (Design Stage) Certificate, issued by the Building Research
Establishment (BRE), shall be submitted to and approved in writing by the LPA to show
that a minimum ‘Excellent’ rating will be achieved.
b) Within 3 months of first occupation of the development, unless otherwise agreed with the
LPA in writing, a BREEAM UK New Construction 2014 (or such equivalent standard that
replaces this) Shell and Core Final (Post-Construction) Certificate, issued by the BRE,
shall be submitted to and approved in writing by the LPA to demonstrate that an
‘Excellent’ rating has been achieved. All the measures integrated shall be retained for
the lifetime of the development.
c) Prior to commencement of the fit-out of the development, unless otherwise agreed with
the LPA in writing, a BREEAM Refurbishment and Fit-out 2014 Parts 3 and 4 Interim
(Design Stage) Certificate, issued by the BRE, must be submitted, by the fit-out
contractor, to and approved in writing by the LPA to show that a minimum ‘Excellent’
rating will be achieved.
d) Within 3 months of first occupation, unless otherwise agreed with the LPA in writing, a
BREEAM Refurbishment and Fit-out 2014 Parts 3 and 4 Final (Post-Construction)
Certificate, issued by the BRE, must be submitted, by the fit-out contractor, to and
approved in writing by the LPA to demonstrate that an ‘Excellent’ rating has been
achieved. All the measures integrated shall be retained for the lifetime of the
development.
14. Compliance with energy strategy
The development shall be built in accordance with the Silcock Dawson Energy Strategy v4.6
dated May 2018 submitted with the planning application, demonstrating how the
development will follow the hierarchy of energy efficiency, decentralised energy and
renewable energy technologies to secure a minimum 35% reduction in CO2 emissions below
the maximum threshold set in Building Regulations Part L 2013.
Prior to occupation of the development, evidence (e.g. photographs, copies of installation
contracts and as-built worksheets prepared under Standard Assessment Procedure or the
National Calculation Method) shall be submitted to and approved in writing by the LPA to
demonstrate that the development has been carried out in accordance with the Silcock
Dawson Energy Strategy v4.6 dated May 2018 submitted with the planning application
unless otherwise agreed by the LPA in writing.
15. Accessible and adaptable dwellings
A minimum of 10% of all dwellings to be constructed as part of the development shall be built
to requirement M4(3) wheelchair user dwellings contained within Part M volume 1 of the
Building Regulations, as identified on the plans approved under condition 2. All other
dwellings shall be built to requirement M4(2) accessible and adaptable dwellings contained
within Part M volume 1 of the Building Regulations.
16. Air Quality
Prior to the installation of the Mechanical Ventilation with Heat Recovery (MVHR) system,
detailed plans of the proposed MVHR system shall be submitted to and approved in writing
by the LPA.
The details shall demonstrate that:
• the air quality at the internal location of the air intakes is predicted to be within legal limits
and that appropriate NOx filtration and air tightness for windows and doors shall be
included in the building design for the nursery; all residential units on the ground and first
floor levels; and the relevant residential units located within an area classified as Air
Pollution Exposure Criteria - B on the second and third floor levels;
• the overall efficiency of the MVHR system at least meets the details set out in the Silcock
Dawson Energy Strategy v4.6 dated May 2018 submitted with the planning application;
• the ventilation system will provide sufficient ventilated air for all dwellings, the nursery
and other publicly accessible areas within buildings; and
• there are sufficient measures in place to monitor operation of the ventilation system and
remedy defects for as long as any dwelling remains occupied.
The development shall be carried out and retained in accordance with approved details.
17. Air Quality/Combined Heat and Power (CHP)
Prior to the occupation of the development the results of tests undertaken on the installed
boiler and CHP systems must be submitted to and approved in writing by the LPA. The
results of the tests shall be approved if they demonstrate that the installed boiler and CHP
systems meet, or exceed, the emissions rates and other parameters set out in chapter 10 of
the environmental statement dated November 2017 submitted with the planning application.
Any gas fired boilers installed as part of the development shall be Ultra Low Emission with
emissions to be less than 40 mg NOx/kWh in accordance with the Sustainable Design and
Construction SPG.
18. Non-Road Mobile Machinery
(1) All Non Road Mobile Machinery (NRMM), such as mobile cranes and bulldozers, of net
power between 37kW and 560kW (inclusive) to be used during the course of the demolition,
site preparation and construction phases shall meet at least Stage IIIA of EU Directive
97/68/EC (as amended) if in use before 1 September 2020 or Stage IIIB of the directive if in
use on 1 September 2020 or later.
(2) If NRMM meeting the relevant Stage set out in paragraph 1 above is not available for the
demolition, site preparation or construction phases, the LPA shall be informed and every
effort shall be made to use the least polluting equipment available by applying the following
techniques instead of meeting the relevant Stage, subject to the prior written consent of the
LPA:
• Reorganisation of NRMM fleet;
• Replacing equipment with new or second-hand equipment which meets the
requirements of the relevant Stage;
• Retrofitting abatement technologies to reduce particulate emissions;
• Re-engining the NRMM
(3) Unless the NRMM complies with the relevant Stage set out in paragraph 1 above
standards, no NRMM shall be on site at any time, whether in use or not, without the prior
written consent of the LPA.
(4) A list of all NRMM used during the demolition, site preparation and construction phases
of the development shall be kept up to date on the online NRMM register at
https://nrmm.london/
19. Biodiversity
Prior to occupation of the relevant building to be provided as part of the development, details
of the ecological mitigation listed at paragraph 18.1.7 of the Environmental Statement dated
November 2017 shall be submitted to and approved in writing by the LPA. The approved
details shall be implemented in full and thereafter permanently retained, unless otherwise
agreed in writing with the LPA.
20. Land contamination
a) Prior to the commencement of development a contaminated land Phase 1 desk study
report shall be submitted to and approved in writing by the LPA.
b) If the Phase 1 report recommends that a Phase 2 site investigation is required, then this
investigation shall be carried out, and a report submitted to and approved in writing by the
LPA. The Phase 2 site investigation shall be carried out by a competent person to identify
the extent and nature of contamination. The report produced following the Phase 2 site
investigation shall 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 in the Phase 2 site investigation report.
c) If required by the Phase 2 site investigation report, a scheme for decontamination of the
site shall be submitted to and approved in writing by the LPA.
d) During the construction of the development, the LPA shall be notified immediately if
additional contamination is discovered beyond that identified in the Phase 1 report or Phase
2 report. A competent person shall assess such additional contamination and shall submit
appropriate amendments to the scheme for decontamination in writing to the LPA for
approval before any work on that aspect of the development continues.
e) Before the development is first occupied, the agreed scheme for decontamination referred
to in paragraphs c) and d) above, including amendments, shall be fully implemented and a
written validation (closure) report submitted to and approved in writing by the LPA.
21. Piling
No piling work shall take place until a piling method statement (detailing the depth and type
of piling to be undertaken and the methodology by which such piling will be carried out,
including measures to prevent and minimise the potential for damage to subsurface
sewerage infrastructure, and the programme for the works) has been submitted to and
approved in writing by the LPA. Any piling must be undertaken in accordance with the terms
of the approved piling method statement.
22. Construction environmental management and logistics plan
The development shall not be commenced until a demolition and construction management
and logistics plan has been submitted to and approved in writing by the LPA. The demolition
and construction works shall be carried out in accordance with the details approved.
The plan shall include specific details relating to the construction, logistics and management
of all works associated with the development and aim to minimise road vehicle movements,
traffic congestion, pollution and adverse amenity impacts. The plan shall be produced in
accordance with Transport for London’s latest Construction Logistics Plan Guidance. The
plan shall include:
a) Details of the site manager, including contact details (phone, email, postal address) and
the location of a large notice board on the site that clearly identifies these details and a
‘Considerate Constructors’ contact telephone number;
b) The parking of vehicles of site operatives and visitors;
c) The erection and maintenance of security hoarding including decorative displays and
facilities for public viewing;
d) Wheel washing facilities;
e) A scheme for recycling/disposing of waste resulting from demolition and construction
works;
f) Any means, such as a restriction on the size of delivery vehicles, construction vehicles
and machinery accessing the site in respect of demolition and construction, required to
ensure that no damage occurs to adjacent highways through the construction period;
g) Any means of protection of services such as pipes and water mains within adjacent
highways during demolition and construction;
h) Measures to maintain the site in a tidy condition in terms of disposal/storage of rubbish,
storage, loading and unloading of building plants and materials and similar
demolition/construction activities during demolition and construction;
i) Measures to ensure that pedestrian access past the site on the public footpaths is safe
and not obstructed during construction works;
j) Location of workers’ conveniences (e.g. temporary toilets);
k) Ingress and egress to and from the site for construction vehicles, including vehicles
associated with the delivery of materials used in the construction of the development;
l) Proposed numbers and timings of truck movements throughout the day and the
proposed routes for their access to the site during demolition and construction of the
development;
m) Procedures for controlling sediment runoff, dust and the removal of soil, debris and
demolition and construction materials from public roads or places during demolition and
construction of the development;
n) Details of the mitigation for dust and emissions, as well as methodology for monitoring,
during demolition and construction;
o) Measures to minimise disruption to neighbouring and adjoining residential and
commercial occupiers during demolition and construction.
The development shall be carried out in accordance with the approved details.
23. Construction Hours
No demolition or construction work, and no deliveries relating to the demolition or
construction work, shall take place on the site except between the hours of 8am to 6pm on
Mondays to Fridays and 8am to 1pm on Saturdays and not at all on Sundays and Public
Holidays.
24. Water efficiency measures
Prior to first occupation of each building constructed as part of the development, a schedule
of fittings and manufacturer's literature for the relevant building shall be submitted to and
approved in writing by the LPA to show that the development has been constructed in
accordance with the approved internal water use calculations of 104 litres per person per
day as set out in the Silcock Dawson Sustainability Statement dated May 2018 submitted
with the planning application.
25. Water supply and wastewater capacity
Development shall not commence (excluding demolition works above existing ground level)
until impact studies on the existing water supply infrastructure have been submitted to and
approved in writing by the LPA. The studies shall determine the amount of any new
additional capacity required in the water supply infrastructure and identify a suitable
connection point.
26. Sourcing of materials
No building to be provided as part of the development shall be occupied until evidence (e.g.
photographs and copies of installation contracts) has been submitted to and approved in
writing by the LPA to demonstrate that the relevant building has been carried out in
accordance with the approved sustainable sourcing of materials standards set out in the
Silcock Dawson Sustainability Report dated May 2018 submitted with the planning
application.
27. Solar glare
Prior to commencement of the superstructure works, measures to demonstrate that the
design and materials selected for the windows and cladding of the buildings forming part of
the development will not have an adverse effect on motorists using the M4 Elevated
Motorway shall be submitted to and approved in writing by the LPA. The buildings of the
development shall be constructed in accordance with the approved details.
28. Ventilation (A1-A3 uses)
Details of external ventilation equipment, including ducting, shall be submitted to and
approved by the LPA prior to first occupation of the relevant commercial units. The external
ventilation equipment shall be installed in accordance with those details approved by the
LPA.
29. Fire Safety
Prior to commencement of the development, an update to the Fire Safety Review prepared
by FDS Consult (dated March 2018 and submitted with the planning application) to account
for the relevant fire safety standards applicable at that time shall be submitted to and
approved in writing by the LPA. The Fire Statement shall detail how the development will
function in terms of:
d) The development’s construction: the methods, products and materials used;
e) The means of escape for all building users: stair cores, escape for building users who
are disabled or require level access, and the associated management plan approach;
f) Access for fire service personnel and equipment: how this will be achieved in an
evacuation situation, water supplies, provision and positioning of equipment, firefighting
lifts, stairs and lobbies, any fire suppression and smoke ventilation systems proposed
(including sprinklers), and the ongoing maintenance and monitoring of these; and
g) How provision will be made within the site to enable fire appliances to gain access to the
building.
The development shall be constructed in accordance with the details approved above.
30. Opening hours (A1-A3 and B1 uses)
The ground floor level Class A1/A2/A3 and B1 premises, as shown on the approved
drawings, shall not be open to customers other than between the hours of 0700 and 2300 on
Mondays to Saturdays, and 0800 to 2200 on Sundays and Public Holidays.
31. Aircraft Radar Mitigation Scheme
No construction work shall exceed 10m above ground level on site until a Radar Mitigation
Scheme (RMS), including a timetable for its implementation during construction, has been
agreed with the Operator (NATS) and approved in writing by the LPA.
The RMS shall thereafter be implemented and operated in accordance with the approved
details.
32. Rooftop TV equipment details
A scheme for the provision of communal/centralised satellite and television reception
equipment to be installed on the roof of any building to be constructed as part of the
development shall be submitted to and approved in writing by the LPA prior to development
proceeding above podium level in respect of the relevant building. The development shall be
implemented in accordance with the approved scheme and the equipment shall thereafter be
retained and made available for use by all occupiers of the development.
33. Restriction of rooftop plant and equipment
No water tanks, plant, lift rooms or other structures, other than those shown on the approved
drawings, shall be erected upon the roofs of the buildings to be provided as part of the
development without the prior written approval of the LPA.
Report to the Secretary of State for
Housing, Communities and Local
Government
by David Nicholson RIBA IHBC
an Inspector appointed by the Secretary of State
Date 11th June 2020
TOWN AND COUNTRY PLANNING ACT 1990 (SECTION 77)
THE MAYOR OF LONDON
APPLICATION BY L&Q
Inquiry held on 14-24 January and 4-6 February 2020. Site visits held on 5 February 2020
Citroen Site, Capital Interchange Way, Brentford, TW8 0EX
File Ref: APP/G6100/V/19/3226914
https://www.gov.uk/planning-inspectorate
CONTENTS Page
Cover1
1 Procedural matters 1
2 The site and surroundings 3
3 Planning policy 5
4 Planning history 10
5 The proposals 11
6 The case for the Applicant, L&Q 12
7 The case for the Mayor of London (the Mayor) – also known 39
as the Greater London Authority (GLA)
8 The case for the Council of the London Borough of Hounslow 52
(LBH)
9 The case for Historic England (HE) 64
10 The case for the Royal Botanic Gardens Kew (RBGK) 86
11 The case for the West Chiswick and Gunnersbury Society 97
(WCGS)
12 Written representations 101
13 Conditions 101
14 Obligations 102
15 Inspector’s conclusions 103
16 Recommendation 118
Appendices
1. Suggested conditions 119
2. Appearances 133
3. Documents 134
1 Cover photomontage from Mr Brown’s proof of evidence
https://www.gov.uk/planning-inspectorate 2
List of abbreviations used in this Report
AH Affordable housing
AN Advice Note (HE)
AQ Air quality
AVR Accurate Visual Representation
BFC Brentford Football Club
BZ Buffer Zone (to a WHS)
CA Conservation Area
CIL Regs Community Infrastructure Levy Regulations 2010 (as amended)
CIW Capital Interchange Way
EIA Environmental Impact Assessment
EiP Examination in Public
ES Environmental Statement
GLA Greater London Authority (the Mayor of London)
GPA Good Practice Advice (in Planning)
GWC Great West Corridor
HE Historic England
HTVIA Heritage, Townscape and Visual Impact Assessment
IC Examination in chief
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
Mayoral London’s World Heritage Sites – Guidance on Settings
SPG Mayor of London Supplementary Planning Guidance (SPG) 2012
MPlan Management Plan (for Kew Gardens)
NPPF National Planning Policy Framework
OUV Outstanding Universal Value
OA Opportunity Area
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)
SotG Strand on the Green
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
UNESCO United Nations Educational, Scientific and Cultural Organization
XX cross-examination
WHS World Heritage Site
https://www.gov.uk/planning-inspectorate 3
File Ref: APP/G6100/V/19/3226914
Citroen Site, Capital Interchange Way, Brentford TW8 0EX
• 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 (T&CP) Act 1990, on 15 April 20192.
• The application is made by L&Q to the Greater London Authority (The Mayor of London).
• The original application Refs. GLA/4279 & 01508/A/P6 is dated 3 November 2017.
• The development proposed was amended prior to consideration by the Mayor, to:
Redevelopment of the site to provide a mixed use scheme of 441 residential units
(Class C3) including 50% affordable housing with ancillary facilities, flexible uses (within
Classes A1, A2, A3 and B1) and a nursery (Class D1). Comprising buildings of 12, 13, 16,
17 and 18 storeys in height with associated cycle parking, car parking, play space,
landscaping and public realm improvements.
• The reason given for making the direction was that the Secretary of State (SoS) 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 SoS 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 should be approved.
1. Procedural matters
1.1 The application was made to the London Borough of Hounslow (LBH)3. This was
called-in by the Mayor of London4 and then by the Secretary of State (SoS).
1.2 The Inquiry sat from 14 January to 6 February 2020. I held it open to allow for
written representations regarding late evidence5. The Inquiry was then closed in
writing on 6 March 20206. As well as conducting an accompanied site visit7 on
5 February 2020, I made unaccompanied visits on 21 October 2019 and shortly
before the Inquiry opened.
1.3 A combined general Statement of Common Ground (SoCG) was agreed between
the Applicant (L&Q) the Mayor (GLA) and the LBH8. A separate heritage SoCG
was agreed between the Applicant, the Mayor, the LBH, Historic England (HE)
and the Royal Botanic Gardens Kew (RBGK)9.
2 Core Document (CD) K01
3 Subsequently a Rule 6 party at the Inquiry
4 Now the local planning authority (LPA)
5 Subsequently numbered Inquiry Document (ID) numbers ID27 and ID28
6 By letters dated 6 March 2020
7 See ID34 for full details
8 CDF 01 Statement of Common Ground (SoCG) between Applicant, the Mayor and LBH
9 ID9
https://www.gov.uk/planning-inspectorate 1
1.4 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.
1.5 It was agreed11 that the Environmental Statement (ES) November 2017 and the
ES Addendum May 2018 are adequate for determining the application. However,
RBGK considered12 that the Heritage, Townscape and Visual Impact Assessment
(HTVIA) 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.
1.6 A signed and dated Legal Agreement was submitted13; I deal with its contents
and justification below. On the last sitting day, the Applicant submitted a
Unilateral Undertaking relating to a Planting Scheme14 with an explanatory Note
and a copy of a High Court Judgment15. I gave the parties time to comment on
these and closed the Inquiry in writing on 6 March 2020.
Matters arising since the last sitting day of the Inquiry
1.7 On 10 March 2020 the High Court published its Judgment on the challenge to the
Chiswick Curve (CC) upholding the SoS’s Appeal Decision16. The CC was a
scheme for a mixed use building of 25 and 32 storeys of up to 327 residential
units, office and other uses17.
1.8 On 13 March 2020, the SoS wrote to the Mayor acknowledging the Intend to
Publish version of the London Plan (IPLP) and exercising his powers to direct
changes which are set out as Directions in Annex 118.
1.9 The Kew Management Plan (MPlan) was formally adopted on 7 May 202019 and
any reference to the draft can now be read as the adopted MPlan. Finally, just
before submitting my report, the Westferry Printworks Appeal Decision, which
was raised in evidence, was quashed by a Consent Order from the High Court
dated 20 May 202020.
1.10 I sought comments on all of these matters which I summarise at the end of the
parties cases where appropriate21.
10 CDF 01 §3.3
11 ID9 §7.9
12 CDF 01 Applicant and RBGK §4.5 and ID16
13 ID35 made under Section 106 of the T&CP Act 1990 (as amended) and all enabling powers
14 Kew Planting Scheme Unilateral Undertaking signed and dated 28 February 2020. ID40 Appendix 1
15 H J Banks & Co Ltd v Secretary of State for Housing, Communities and Local Government [2018]
EWHC 3141 (Admin) and [2019] P.T.S.R. 668
16 Post-Inquiry Document (PID)5 Judgment in Starbones Ltd v Secretary of State for Housing,
Communities and Local Government & Ors [2020] EWHC 526 (Admin) (10 March 2020)
17 CD I4
18 PID7
19 PID9
20 PID11 dated 20 May 2020, quashing the decision at ID10
21 PID6, 8, 10 and 12
https://www.gov.uk/planning-inspectorate 2
2. The site and surroundings
Annotated satellite image22
2.1 The Application site23 extends to approximately 0.96 hectares and is located close
to the Chiswick roundabout and the elevated section of the M4. The site currently
comprises a car dealership and service workshop (Peugeot/Citroen) with
approximately equal coverage of buildings and hardstanding. The main showroom
and workshop building is just over 7m in height. Different parts of the site have
Public transport accessibility levels (PTAL) of 4 and 324.
2.2 The site is directly behind the Brentford Fountain Leisure Centre which fronts
onto the Chiswick High Road section of the South Circular. There is a Volkswagen
car dealership to the north-east. Capital Interchange Way (CIW) curves around
the site on its north-western and south-western boundaries. Across Chiswick High
Road lies a predominantly residential area around Wellesley Road. Further south
on Chiswick High Road are Kew Bridge Station and Kew Bridge itself. Either side
of the Bridge are Rivers House and Kew Bridge West. A little further west is Kew
Steam Museum, with a distinctive tall standpipe tower which is a prominent
landmark. Gunnersbury Station lies to the east of Chiswick roundabout.
2.3 Other tall buildings in the area include the six 22-storey residential blocks of
Haverfield Towers, which stand on the opposite side of the River from Kew
Gardens directly behind the Orangery; the Kew Eye apartments next to the M4;
the BSI building to the north of Gunnersbury Station; and Vantage London.
22 From Mr Brown’s proof p27.
23 See CD B01: Council Officer’s report, and CDF 01: SoCG
24 See ID26 Appendix 2
https://www.gov.uk/planning-inspectorate 3
2.4 West of CIW is the Brentford Football Club Community Stadium and development
site (BFC). This was implemented in 2017 and includes a new 17,250-seat
stadium and 11 tall buildings on surrounding land for housing and commercial
uses. Construction work is nearly complete on a 9-storey building on the former
Wheatstone House site, which adjoins the Volkswagen dealership and the Leisure
Centre sites near to the Chiswick roundabout.
2.5 Across the M4 is the site of the approved Citadel scheme – which is also the site
of the now rejected 31 storey CC proposals. The proposed Hudson Square
development (the current B&Q site) lies just north of this. At 1-4 CIW, just the
other side of the road from the application site, LBH has resolved to grant
permission for buildings of up to 16 storeys subject to conditions and satisfactory
planning obligations25. Most of these taller buildings and proposals are within the
proposed Great West Corridor (GWC) – see s3 below.
Heritage considerations
2.6 Across the Thames is the London Borough of Richmond with Kew Gardens and
Green Kew, both of which are designated as Conservation Areas (CAs). Kew
Gardens is also a Grade I Registered Park and Garden (RPG) and, most recently
of these designations, a World Heritage Site (WHS) which has roughly the same
boundaries as the RPG and the CA. It contains many listed buildings including
Kew Palace, 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. The key images are Views 20, 22, 23 and 3026
2.7 It was common ground27 that the heritage assets which would be potentially
affected at Kew Gardens are the RPG, its CA, the WHS, and its Grade I listed
Orangery. Of the many other 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.
2.8 The Strand on the Green (SotG) CA follows the north bank of the River Thames.
Designated in 1968, it includes around 22 Grade II listed buildings along the
River, all listed for group value, as well as the Grade II* listed Zoffany House
which together with 64-71 SotG would be most affected.
2.9 Kew Green CA was designated in 1969, has since been extended, and contains
38 listed buildings, four of which are listed at Grade II*.
2.10 The Wellesley Road CA is mostly residential and lies just to the south-east of the
application site, across the Chiswick High Road. Its CA Appraisal28 notes its wide
range of Victorian properties with their original detail, style and character; few
are listed.
2.11 Kew Steam Museum is a group of Grade I and II listed buildings; Kew Bridge
Station and Kew Bridge itself are both listed at Grade II.
25 CDI 01
26 See the Accurate Visual Representation (AVR) at CD N1
27 ID9
28 ID25
https://www.gov.uk/planning-inspectorate 4
3. Planning policy
3.1 All relevant policy and guidance, including SPG and emerging policy, is listed in
the SoCG29.
The Development Plan
3.2 It was common ground30 that the Development Plan includes the 2016 London
Plan (LonP)31 and the 2015 Hounslow Local Plan (HLP)32.
London Plan (LonP)
3.3 Of particular relevance, LonP 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.
3.4 LonP 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;
and sets criteria for planning decisions to ensure that buildings and structures
should: be of the highest architectural quality; be of a proportion, composition,
scale and orientation that enhances, activates and appropriately defines the
public realm; comprise details and materials that complement, not necessarily
replicate, the local architectural character; and 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.
3.5 LonP 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 and 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.
3.6 For planning decisions, and with specific reference to listed buildings, RPGs, CAs,
and WHSs, LonP 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.
3.7 LonP Policy 7.10A establishes at that development in [WHS]s and their settings,
including any [BZ]s, should conserve, promote, make sustainable use of and
enhance their authenticity, integrity and significance and [OUV]. It notes that the
Mayor has published [SPG] on London’s [WHS]s – Guidance on Settings to help
relevant stakeholders define the setting of [WHS]s. Policy 7.10B for planning
decisions sets out that development should not cause adverse impacts on [WHS]s
or their settings …, it should not compromise a viewer’s ability to appreciate its
[OUV], integrity, authenticity or significance. When considering planning
29 SoCG CDF 01 §§2.6-2.8
30 Ibid §2.1
31 Consolidated with Alterations with alterations since 2011 (CD C04)
32 LBH Local Plan (CD D01)
https://www.gov.uk/planning-inspectorate 5
applications, appropriate weight should be given to implementing the provisions
of the [WHS MPlan]s.
3.8 Housing requirements in general are covered in LonP Policies 3.3-3.5. Affordable
housing (AH) is covered in LonP Policies 3.8-3.13 which define the term, set
targets, and expect the maximum reasonable amount of affordable housing when
negotiating on individual schemes while acknowledging that negotiations should
take account of development viability.
Hounslow Local Plan (HLP)
3.9 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.
3.10 HLP Policy CC3 supports tall buildings of high quality in identified locations
which accord with the principles of sustainable development. At (d) this
supports tall buildings along sections of the A4 with specific sites to be identified
in the GWC Plan which should be carefully placed so as not to create a wall of
tall buildings, ensuring they do not have a significant adverse impact on the
setting of, or views from heritage assets including the Kew Gardens WHS. 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.
3.11 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 Outstanding Universal Value (OUV) of Kew
Gardens WHS its BZ and its setting, including views to and from the site.
3.12 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.
3.13 HLP Policy SV1 commits to progressing a partial HLP review of the GWC
including designation as an Opportunity Area (OA).
Other Statutory duties
3.14 Sections 66 and 72 of the Planning (Listed Buildings and CAs) Act 1990 place
duties on the decision maker with regard to listed buildings, their settings and
https://www.gov.uk/planning-inspectorate 6
to CAs. The Courts have found that 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 status33.
National Planning Policy Framework (NPPF)
3.15 The revised Framework (NPPF) was published in July 2018 and further revised in
February 2019. In interpreting policy, the Judgment in Bedford34 established
that substantial harm (NPPF§195) requires that: very much if not all of the
significance of the asset was drained away.
3.16 Planning Practice Guidance (PPG) includes that on the Historic Environment. On
WHSs, it refers 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 management plans need to
be taken into account … in determining relevant planning applications35.
Supplementary Planning Guidance (SPG)
3.17 The Mayor’s London’s World Heritage Sites – Guidance on Settings SPG, 2012
(Mayoral SPG)36 advises that: [t]he 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 [OUV]37. The SPG also highlights the importance of cumulative
impacts and that there may be a tipping–point38. 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 [WHS]s have a very high significance value,
therefore even minor changes can have a significant effect and their impacts will
require close scrutiny39.
3.18 The Mayor’s Affordable Housing and Viability SPG Homes for Londoners 201740
expects viability assessments to be submitted as part of the planning process,
and that they should be rigorously reviewed as required by the LonP41.
Other Documents
3.19 The Mayor’s A City for all Londoners (October 2016) and the Housing White
Paper Fixing our broken housing market (February 2017)42 emphasise the need
for more intensive housing in London using previously developed land.
3.20 Historic England (HE) has published extensive guidance on the historic
environment including Managing Significance in Decision-Taking in the Historic
33 As interpreted by the Courts in CD J02 East Northamptonshire District Council and others v
Secretary of State for Communities and Local Government and another [2014] EWCACiv 137
34 CD J01 Bedford Borough Council v Secretary of State for Communities and Local Government [2013]
EWHC 2847 (Admin)
35 PPG at CDC 02 Refs: 032 Reference ID: 18a-032-20190723, 032 Reference ID: 18a-034-20190723
36 CD C16
37 See CDC16, §1.3
38 CDC16, §5.31.
39 Ibid 5.34
40 CD C07
41 Ibid 3.1 referring to LonP §3.71
42 CD12.9 and CD12.10
https://www.gov.uk/planning-inspectorate 7
Environment43 and Good Practice Advice in Planning (GPA) Note 3 on The
Setting of Heritage Assets44. The latter states [w]hen 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 [w]here 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 ….
3.21 HE’s Advice Note (AN) 4: Tall Buildings says: Each building will need to be
considered on its merits, and its cumulative impact assessed45, and that
[c]areful 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
cluster46. 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
harm47.
3.22 The RBGK CA was designated in 1991. Its Appraisal48 has been largely
superseded by the WHS designation. The new Kew Gardens WHS MPlan has now
been adopted49. 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
WHS50 and adds that the use of trees as screening cannot be relied upon in the
long term to protect against inappropriate external development51.
3.23 The Kew Gardens Statement of OUV (SOUV)52 refers to: Elements of the 18th
and 19th century layers including the Orangery, … convey the history of the
Gardens’ development from royal retreat and pleasure garden to national
botanical and horticultural garden before becoming a modern institution of
conservation ecology in the 20th century. It continues: Only a few buildings are
being used for a purpose different from that originally intended (the Orangery
now houses a restaurant). Of the attributes of Kew Gardens WHS’s OUV, the
two that would be affected by the proposal are: the rich and diverse historic
cultural landscape providing a palimpsest of landscape design53, and the iconic
architectural legacy.
43 CDG 08
44 CDG09 pp 2 & 4; and §§32 and 36
45 CD G10 §3.8. See also §5.5 and the checklist on p8
46 Ibid §4.6
47 Ibid §5.5
48 Which is broadly co-extensive with the WHS designation, see CDG7.
49 PID9
50 Section 3.3
51 Section 9.3.2
52 CD G12 p49
53 PID9 New MPlan p24
https://www.gov.uk/planning-inspectorate 8
3.24 The draft SotG CA appraisal notes that: The [CA]’s special architectural and
historic interest lies in its intrinsically tranquil setting beside the water’s edge,
with fishermen’s cottages, boat builders’ sheds, public houses, maltings and
larger and more elegant private houses added in the late eighteenth century. …
It has a clear new riparian character area from the other side of Kew Bridge …
with a unique (to the borough) unified scale, grain and grouping of heritage
assets, which contrasts with the larger and more varied buildings of Brentford.
The overall effect is one of picturesque charm, both from within the area and
from advantageous views on the opposite river bank ….
3.25 Kew Green CA was designated in 1969. Its Appraisal54 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.
3.26 The International Council on Monuments and Sites (ICOMOS) was requested to
comment on the planning application for the CC insofar as it would affect the
setting of the RBGK, a World Heritage property55. At the time of the Inquiry it
had not commented on this application.
World Heritage Site Management Plan (WHS MPlan)
3.27 As above, the WHS MPlan56 is now adopted and can be given weight as a
material consideration supported by policy. Its significance and relevant policies
were summarised in some detail by RBGK. With regard to Views, vistas and
setting, it notes57 that Further strategic strengthening of boundary plantings and
screening within the Gardens will also be required in the long term, to help
offset the threat of ever taller external building developments becoming visible
within the landscape. The use of trees as screening however, 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
and our ability to experience the gardens ‘Arcadian’ vision.
Emerging policy
3.28 The IPLP, December 2019 has now been postponed. Even before the latest
delay, it was agreed that the IPLP is at an advanced stage, having been
considered at an Examination in Public (EiP) and subject to a Panel report, and
that it is a material consideration of some weight. With the SoS’s most recent
letter, he has set out Directions for certain policies. It follows that other policies,
which include heritage policies, are unlikely to be altered.
3.29 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…58. Policy D9C4) includes
the importance of considering cumulative impacts.
54 CD G02 p1
55 CD G28
56 PID9
57 Ibid p55
58 Intend to Publish version of the London Plan (IPLP) CD C05A, p150.
https://www.gov.uk/planning-inspectorate 9
3.30 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.
3.31 Policy HC2B of the IPLP reads Development proposals in [WHS]s and their
settings, including any [BZ]s, 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, appropriate weight should be given to implementing the provisions
of the [WHS MPlan].
3.32 LBH has consulted on amendments to Volumes 1 and 2 of the current HLP, and
consultation on the Regulation 19 draft of the Great West Corridor Local Plan
Review (GWC LPR)59 closed in September 2019. It was agreed that these are at
an early stage and have not yet been to an EiP. As there are unresolved
objections, including those from the Applicant and the Mayor, it was agreed that
very limited weight can be attributed to the amendments and the GWC LPR60.
3.33 The GWC LPR sets out a detailed spatial strategy for the GWC including land
uses and building heights. Its aims include identifying the extent of the GWC,
progressing its designation as an OA, and identifying sites suitable for tall
buildings. The OA is identified as an area for 7,500 new homes and 14,000 new
jobs. It identifies a three-tiered hierarchy of building heights. Policy P3 deals
with GWC East, the section which contains the application site. This is shown
with an allocation for residential in the spatial strategy and near, but not as, a
focal building61. Policy GWC5 expects schemes to avoid any further harm to the
setting, views, significance, OUV of the [RBGK WHS] and other designated
heritage assets and their setting in the Corridor and wider area.
3.34 At the same time, the GWC LPR was supported by the GWC Masterplan and
Capacity Study62 which sets out a bold new vision for the renaissance of the
GWC. Its analysis includes further height testing with regard to Kew Gardens
WHS and a more detailed analysis of potential tall building clusters around the
proposed BFC developments63.
4. Planning history
4.1 See the SoCG64 for full details. Of relevance, the application site was developed
as a retail warehouse and garden centre. An application for the current car
59 CD D05
60 CDF 01 §2.15
61 CDD 05 Fig.5.8
62 CD D07
63 Identified as Brentford Stadium Clusters West and East. Ibid pp139-140
64 Planning SoCG CD5.1 s3
https://www.gov.uk/planning-inspectorate 10
showroom and workshop use was granted in March 199665. In February 2018
LBH considered the application and concluded that it should be refused
permission for 5 reasons66. Subject to an agreement under Section 106 of the
T&CP Act (s106), now completed, LBH’s case no longer pursues reasons 2-5.
Reason 1 claims that the proposals by virtue of their location, scale and design,
would not enhance the quality of the built environment and would cause serious
harm to the significance of a range of designated heritage assets including a
[WHS], listed buildings and conservation areas, as they would appear as overly
tall and bulky elements that are discordant additions to the existing high quality
townscapes, adversely affecting their setting. It has not been clearly and
convincingly demonstrated that there are public benefits that would outweigh
the harm caused. It also refers to a number of relevant policies.
4.2 With regard to nearby sites under construction, the BFC development67, as now
approved, is for a new 17,250 seat stadium and enabling housing (910
dwellings) and a hotel. At Wheatstone House permission was granted on appeal
in March 2015 to provide 95 apartments and ground floor commercial space
within a 9-storey building68.
4.3 Proposals for 1-4 CIW were refused planning permission in December 2017 for
redevelopment to include up to 550 residential units, a bus depot and
commercial units in three buildings of 18, 19 and 20 storeys. It now has a
resolution to grant permission69 for a mixed-use scheme of 420 residential units
and flexible retail and commercial floorspace in buildings up to 16-storeys in
height70. It would include 209 affordable units71.
5. The proposals72
5.1 The site would be cleared of all existing buildings and workshops. The five new
blocks would be staggered to achieve a variety of building heights. Two pairs
of blocks would be connected to produce the three structures. The blocks would
be arranged fanning out from the north corner, closest to the M4 flyover, to face
the sun. There would be a raised podium between the blocks producing two
courtyards and concealing ground floor parking below.
5.2 It was common ground73 that the principle of redeveloping the site and the range
of uses proposed would accord with the development plan as a whole; that there
was no concern over the loss of the car dealership and garage; that the
development plan strongly supports the principle of a mixed-use residential-led
scheme; that a nursery is acceptable; as are ground floor uses of retail,
employment and community uses. They also agreed that the principle of tall
65 under application ref.1508/A/P4
66 In the planning officer’s delegated report CDB 01 §13.1
67 Ref. 00703/A/P11
68 Ref. 00248/U/P7
69 CDI 01 Ref. 01508/1-4/P6 Capital Interchange Way Officer Report
70 Block A 8-12 storeys, Block B 8-14 storeys, Block C rising to 16 storeys: see CIW Officer Report:
CD I01 §4.6. The site is further away from Kew Gardens than the Citroen proposals.
71 CD I01 §1.1. Re tenure split, Mr Baker clarified to the Inspector question from that 1-4 CIW is 30%
London Affordable Rent, 10% Affordable Rent, 60% shared ownership (Citroen being 30% London
Affordable Rent and 70% Shared Ownership)
72 View from the south shown on the front cover
73 CDF01 between the Mayor, LBH and the Applicant §§3.4-3.8
https://www.gov.uk/planning-inspectorate 11
buildings on the site is acceptable having regard to policies LonP 7.7 and HLP
CC374. LBH did not agree that the height, scale or design of the proposed
buildings would be acceptable. The effect on the significance of various heritage
assets was not agreed.
5.3 View 23 (for the SotG) and View 30 (for the Orangery/WHS) were agreed to be of
particular relevance. Also Views 20 and 22 for Kew Green CA.
5.4 It was also agreed that the design would provide new well-defined public routes
and spaces, high quality landscaping, and an improved route from Gunnersbury
Station to BFC Stadium (subject to other development). Other design matters
were not agreed by LBH. There was general agreement on: housing mix, housing
provision, access, daylight & sunlight, noise, air quality, wind, light pollution,
waste, contaminated land, transport, social infrastructure, sustainability, flood
risk and drainage. Also, that there would be 250 direct construction phase jobs.
When the scheme is finished, there would be a modest net increase compared
with the number of jobs at the current showroom.
5.5 It was agreed that the proposals would deliver a number of public benefits
including:
• the delivery of 441 homes
• the delivery of 50% affordable housing by habitable room
• job creation
• improved public realm and a new public square
• environmental improvements to the area
• aesthetic improvements to the site
• provision of a nursery
• providing transformational change to a site within a proposed opportunity
area (OA)
• encouraging sustainable travel behaviours through a package of measures.
The weight attached to these benefits was not agreed with LBH.
5.6 Other points75 were agreed between the Applicant and the Mayor, but not LBH.
5.7 Of the 628 habitable rooms tested for daylight levels, 75 of these failed to meet
the minimum BRE standards76; the vast majority of those were living rooms.
5.8 The balconies/internal spaces that would be particularly affected by poor air
quality would be provided with mechanical ventilation and air conditioning.
6 The case for the Applicant, L&Q
Its case, with only minor adjustments, is as follows.
6.1 The application before the SoS is made by a major provider of AH, and would
regenerate an under-used brownfield site in one of London’s key areas for
housing intensification. It would bring several very substantial benefits to the
74 SoCG (CD F01), §§3.11-3.12
75 Ibid §§3.14-3.19
76 SB Proof (CD M06), §6.9.
https://www.gov.uk/planning-inspectorate 12
community in Hounslow and in the context of the ongoing severe housing crisis
in London. These are not points in dispute between the parties.
6.2 However, those benefits have to be set against acknowledged harm to several
designated heritage assets in the wider area around the application site. The
key judgement is whether the largely unchallenged public benefits of the
scheme would outweigh the heritage harm.
6.3 That balance is set out in NPPF§196. There is nothing materially different about
the overall assessment of compliance with the development plan – that too
requires a balance between competing objectives, giving the protection of
designated heritage assets due weight and consideration77.
6.4 Furthermore, there is no material difference between the application of
NPPF§196 and the statutory obligations which arise in heritage cases; the
strong presumption which is said to arise when harm to designated heritage
assets would be caused is not inconsistent with the exercise which NPPF§196
requires the decision-maker to undertake78.
6.5 All aspects of law and policy which bear on this decision allow for permission to
be granted in circumstances where there would be harm to designated heritage
assets, including the WHS. Nothing in policy or law says that outcome would be,
or should be, some sort of exception. The system has been put in place to
balance interests; recent examples both in Hounslow79 and at the national level
make that crystal clear.
6.6 Whilst there is little if any dispute about the weight to be given to the scheme’s
benefits, there is quite a range of views on the degree of heritage harm the
scheme would cause, ranging from harm right at the very upper end of less
than substantial (by RBGK) to only very little harm (by the Applicant80) with
various positions in between.
6.7 What the evidence shows is that Kew Gardens would suffer some limited harm
due to the presence in parts of a short kinetic view (around View 3081) of the
scheme’s upper 6 storeys appearing at distance above the Orangery roof. The
harm to the Orangery and the OUV of Kew Gardens have been overstated82. The
revelation that RBGK is actively considering the topic of mitigatory planting
pursuant to its MPlan further undermines the reasonableness of its position83.
6.8 Similarly, there will be harm to the setting of the SotG CA, due to the scheme
distracting the eye in some views along the tow path. But it is only along part of
77 Confirmed by Mr Baker in cross-examination (XX).
78 See discussion of the relationship between the statutory provisions and the NPPF tests in CD J04
Mordue v Secretary of State for Communities and Local Government and others [2015] EWCA Civ 1243
79 1-4 CIW resolution (CD I7), Westferry Circus DL by Secretary of State, ID10 [now quashed]
80 Dr Miele
81 See CD N1, viewpoint 30 and the stills from the moving presentation in that document.
82 by Mr Croft in particular but also by both Mr Dunn and Dr Scott
83 It was a revelation –the MPlan talks in general terms about planting, but RBGK has never indicated,
including in evidence before the Inquiry, that its horticultural section is actively considering mitigatory
planting in relation to views of Brentford buildings. That was mentioned for the first time when Mr Croft
was asked. The absolute objection in principle by Kew Gardens to discussion with the Applicant on this
matter is not in accordance with Kew’s MPlan and is regrettable. The Applicant stands ready to pursue
those discussions with Kew and hopes that the rigid objection stance will be softened.
https://www.gov.uk/planning-inspectorate 13
the relevant section of the tow path that the scheme would lie behind the frieze
of waterfront buildings in the CA – much of the time the scheme will sit well
behind and to the left of the key view. Kew Green CA’s significance will not be
impacted at all.
6.9 The balance is between the benefits and the degree of harm properly analysed.
Several other points have been canvassed as to some extent relevant to the
overall balance. The Applicant has shown that the viability of the scheme with
50% AH only works because it is a housing association and is prepared to build
the scheme at a profit level very substantially below what would be acceptable
to market developers84. This point lies beneath the balancing exercise in a way
– it indicates that there is no evidential basis to reduce the weight to the
benefits, or sharpen the edge of the heritage harm. There is no suggestion that
the needs the scheme will meet can be pushed off or imagined away to another
site. There is no evidence that they can viably come forward with a much
reduced scheme on the site itself. This scheme is a very unusual thing: a 440
odd unit scheme with 50% AH (including a large amount of London Affordable
Rent), brought forward by a major housing association on 2.1% profit – it needs
all the parts of the equation to make sense. That is why it is an opportunity that
ought to be grasped by the SoS.
Call in Issue 1: Supply of Homes
6.10 The SoS’s first call-in matter85 relates to housing. Only the Applicant, the Mayor
and LBH produce evidence on this point, and they agree that significant weight
should be given to the way that the scheme assists in delivering against
Government, London and LBH policies for housing and AH86.
6.11 The scheme would bring forward 441 units of housing of which 50% would be
AH. It would make a substantial contribution towards the Government’s
objectives of significantly boosting the supply of housing and meeting the
housing needs of all.
Affordable Housing (AH)
6.12 No dispute between the parties exists about the weight to be given to the AH
component87. The significant weight to the AH provided is underpinned by the
following points:
6.12.1 The absolute number of units and habitable rooms provided as affordable
homes is greatly in excess of the levels one finds in LBH and in London as a
whole: just 17% of units secured across London in the past three years, and
only 23% in LBH88.
6.12.2 The LBH policy requirement is 40%. Clearly, even this is not being delivered on
average across LBH89 and the scheme exceeds it by 10%. The London Plan
does not set a 50% requirement on this site90 and it is agreed that the offer is
84 See the Quod note on viability, ID 13.
85 CD K1
86 CD F01 §§3.22 and Mr Baker’s §6.54 p 50
87 Ibid
88 See ID13 and ID26 (Quod)
89 Ibid
90 Unlike in relation to the industrial site approach to 1-4 CIW, where 50% is a GLA AH requirement
https://www.gov.uk/planning-inspectorate 14
the maximum reasonable level – indeed, as the viability shows, it is well
beyond what would be considered the maximum reasonable level for most
developers of the site91.
6.12.3 As to the split of AH tenures, the Mayor, LBH and the Applicant agree that the
scheme is acceptable; LBH’s view is based on a full review of the viability
assessment of the scheme and receipt of external advice. By habitable room,
that represents 35:65 affordable rent:intermediate. 66 of the 218 units would
not just be affordable rented homes, but would qualify as London Affordable
Rent units, which is the most affordable of all the tenures. 152 of the units
would be Shared Ownership homes, with affordability aligned to local
household incomes and local needs. That profile of AH is a feature of the
scheme being brought forward by L&Q rather than being any ordinary
development. There is a high level of need for both tenures in LBH and
London’s single housing market. The shared ownership units, for instance,
would be within reach of around 38,000 LBH households. An Early Stage
Review Mechanism in the s.106 agreement also enables the proportion of
London Affordable Rented units to rise under certain circumstances.
6.12.4 The AH offer therefore goes beyond policy requirements in LBH, both
compared with a market developer and the Mayor’s requirements. The written
viability evidence92 – uncontested by any party to the Inquiry – sets out that
the scheme would produce well in excess of the 16% which would be possible
were a more typical developer to try to bring forward this size of scheme
adopting a viability-based approach.
6.12.5 The scheme’s viability has been approached on the correct methodological
basis, and shows that at 50% AH, the developer’s profit element is a mere
2.1% of GDV. For a typical developer, the level of profit would be a blended
rate of 15% of GDV (itself at the lower end of the range referred to in the
PPG). Viability evidence shows that even carrying out a sensitivity test, using
highly optimistic assumptions as to potential increases in GDV and falling build
costs, the profit rises only to 8%. That profit shortfall, combined with the peak
funding requirement of c.£45m and current low sales growth would mean that
market developers would not proceed with the scheme93.
6.12.6 L&Q is able to proceed with the scheme, and would do so, in part because of
its ability as an RP to access lower cost finance via corporate borrowings
secured against its substantial stock of existing homes. In addition, L&Q’s
acceptance of nil profit on the affordable homes (and a reduced profit on the
private homes) effectively retains subsidy generated from the latter to fund
the former.
6.12.7 As a result, the development would deliver significantly greater AH than would
be achievable by a market developer.
6.12.8 Furthermore, viability evidence shows that the development would deliver
23 more affordable rented homes and 123 more shared ownership homes than
91 See in particular the advice of Quod in ID26
92 by Quod
93 See ID26 and the Quod annex to Mr Connell’s evidence
https://www.gov.uk/planning-inspectorate 15
a scheme following the LBH 60:40 tenure mix and a viability assessment. This
is a substantial local benefit.
6.13 There are no material considerations said by LBH to reduce the weight to be
given to the AH benefits from the scheme. That obviously includes any question
over tenure, and indeed the viability evidence shows that more, rather than
less, weight should be given to the AH in this case because it is essentially an
RP scheme for 218 affordable homes with cross-subsidising market units, on the
very cusp of viability for an RP.
6.14 In the LBH and London Plan context, the scheme goes beyond the bare
requirements of policy (which are not usually or on average met – by a
considerable margin); the policy to seek 40% (let alone a notional 50%) target
for AH as part of the minimum 7500 OA homes in the emerging LBH Plan still
requires viability testing in the future EiP – but the evidence of the past few
years in LBH shows how very challenging even the lower % is likely to prove. As
things stand, the draft emerging policy is 40% and the scheme exceeds that94.
6.15 A point was raised about the AH offer at the resolved to be granted 1-4 CIW
scheme. That is not comparable and tells one nothing about the Citroen site
proposals95.
6.16 The Applicant will deliver the scheme96. It has invested heavily in the site and
the surrounding area (e.g. Wheatstone House next door) and has grant
available to it from the Mayor in respect of the scheme which it will use, and
which is, practically speaking, impossible to recycle either off site or on site (i.e.
to change the proposed tenures)97. There is no reasonable doubt about the
delivery of the scheme98.
6.17 The upshot is a powerful contribution to AH needs in London and LBH,
maximising the AH benefit that the site can bring. Significant weight should be
given to it in line with the NPPF’s injunction to meet needs where they arise.
Market housing
6.18 It is also agreed between the Applicant, the Mayor and LBH that significant
weight should be given to the 223 units of market housing that the scheme will
deliver. LBH99 does not argue (by contrast to the rejected argument on those
lines at the CC Inquiry) that the weight should be reduced because LBH has a 5
year housing land supply100. That is because:
94 Mr Baker in XX and RX
95 See the advice of Quod in ID38 to Inspector dated 6 February 2020.
96 See the L&Q letter, first annex to Mr Connell’s evidence.
97 HE continues to doubt the position set out in the L&Q notes on this – ID26 and the new note. There is
nothing unclear about the position: the grant cannot be re-cycled by L&Q because insufficient time and
sites exist (even if one assumes an extended grant period to 2022). HE’s suggestion that the SoS should
form the view that the GLA’s grant could be extended is entirely unsupported by evidence and is indeed
contrary to the evidence given by L&Q and the GLA. In the end the availability of grant does not make
the key difference between the scheme viability and it failing – that more critically depends on the
benchmark land value, the overall number of units and the tenure of the affordable units in accord with
policy. The grant does not fully subsidise the affordable units – that is funded by L&Q as the RP.
98 See the clarification re grant in ID26.
99 Mr Baker
100 See CD I4 §IR12.152
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6.18.1 LBH has not in fact been delivering housing at such a rate or in such numbers
that it complies with the Housing Delivery Test levels – it has only delivered at
78% of its target rate, therefore requiring, as LBH acknowledged, a 20%
buffer to be applied101.
6.18.2 Five year calculations as at the last AMR are not based on what LBH says it has
firmly in mind now, namely the much higher housing requirement which is
about to be imposed on it with the new LonP, at 1,782 units a year (compared
to 822 as things stand).
6.18.3 Core to meeting emerging London wide needs is the OA which, as LBH
agreed102, is likely to be adopted as part of the development plan, and for
which LBH has started to plan103. LBH agreed that one cannot be complacent
about whether the Borough can achieve the 7,500 minimum figure in the OA104
– indeed, the majority of the assumptions behind the capacity exercise, and
the potential yield from brownfield sites and re-distribution of uses in the area,
have not been independently tested yet105. LBH agreed that the indicative
capacities of sites in the draft evidence base for the OA may well fall, just as
some may rise106.
6.18.4 No one at the Inquiry argued that the housing benefits of the scheme should
be reduced on the basis that they could be achieved on alternative sites, or
that there was no need for the Citroen site to deliver 441 units because of the
capacity in the area in general. The reverse is true – the OA is relatively
confined, and comprises complex brownfield sites where costs and viability
issues are keenly felt. At the core of its eastern cluster is the BFC
development, which is not able to produce policy-compliant levels of AH107.
6.19 Significant weight should be accorded to the market housing component of the
scheme in the planning balance. It complies fully with the Government’s policy
in the NPPF for the delivery of housing. The opportunity presented by the site
and this scheme – i.e. the Applicant’s particular ability to generate higher levels
of AH – ought not to be passed up lightly. If, as is inevitable, the OA will call for
balances against harm to designated heritage assets, then this kind of unusual,
rich mix of housing benefits should be sought108.
Call in Issue 2: Building a Strong, Competitive Economy
6.20 The scheme is residential-led, partly because the existing use of the site as a
sui generis car showroom and consequent lack of applicable policies, does not
101 See ID26
102 Mr Baker
103 See the emerging plan re Brentford East, CD D7 suite of documents.
104 Contrary to the Hounslow closing, §123, the table in CDD7 relating to the 1700-odd capacity was
not looked at to “muddy the waters”. Mr Baker accepted by reference to it that what it shows is subject
to the EiP and will be subject to change in various ways, leading to his acceptance that one should not
be complacent that the needed housing will come forward in any event.
105 This is something for the LPR EiP and there are substantial objections to all aspects of the draft.
106 LBH closing submissions §119 p28 suggests that the Inspector should rely on the eLP and supporting
work to form the view that there is an objection to the height proposed on the application site. That is
inconsistent with Mr Baker’s evidence
107 See CD I3A, §1.7.
108According to Kew Gardens, these benefits are just “common or garden”, which as a single-issue
approach to the planning balance is unreliable.
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require any particular employment use as part of the mix109. Partly of course, it
is a scheme which seeks to meet pressing needs for housing and to optimise the
site for that purpose. However, the scheme is not without economic benefits,
particularly when seen as part of the evolving Brentford East cluster:
6.20.1 The proposal will support 250 direct construction phase jobs110. These are
often described as temporary but of course they are only so on a particular site
– the economic benefit of a very large construction project is in part that it
allows continuity of the construction firms’ business and retention of their staff,
as well as local supply chain employment. Hence it should not be
underestimated.
6.20.2 There will be a relatively small number of FTE jobs provided when the scheme
is finished, representing a modest net increase on the jobs at the current
showroom. Some weight should be given to them.
6.20.3 Finally, there is a relationship between the provision of housing and the
functioning of the economy – unless there are sufficient (particularly
affordable) homes in LBH and London in general, it will continue to be a city
which workers find hard to live in, or even near, and this negatively impacts on
the economic vitality of the area. The OAs are necessarily out to the fringes of
central London and the housing they are to contain is very important in this
respect.
6.21 The regeneration of the site is also part of the economic benefit of the scheme.
Its future mixed use will be more beneficial to the local economy and the site
will be physically improved such that it plays a positive role in bringing people to
and through the area, cementing the benefits associated with the new football
stadium and the cumulative townscape improvements. LBH gives the
regeneration moderate weight, which is agreed. The agreed benefit of increased
permeability through the area is also relevant here.
6.22 In all, the scheme strongly supports the Government’s NPPF objectives for a
strong, competitive economy.
Call in Issue 3: Heritage
Approach
6.23 The Applicant has recognised through its heritage expert’s evidence111 that
there would be a degree of harm to the WHS at Kew Gardens (which is
coterminous with the RPG and the CA) and the SotG CA. These harms lie within
the less than substantial harm category. As a consequence, the Applicant
accepts that:
109 Care needs to be taken about existing floorspace for employment on the application site – it is
mostly car parking. It is also not correct to say (Hounslow closing, §128) that there is no evidence of
re-provision of the Citroen jobs – they are moving a stone’s throw away from the current site, within
Hounslow.
110 See Mr Connell’s evidence
111 Dr Miele
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6.23.1 significant importance and weight should be given to the harm particularly that
to the CA at Kew Gardens and the Orangery
6.23.2 a clear and convincing justification should be given for such harm
6.23.3 the WHS is the most important of the designated assets but the designated
assets are all of high importance
6.23.4 harm to these assets inevitably means a degree of non-compliance with
development plan policies which are drafted to prevent or guard against harm
to designated assets including Kew Gardens.
6.24 However, harm to designated assets, including to WHSs, is not an insuperable
obstacle to planning permission. That is clear from the relevant development
plans and the NPPF, and a recent example is the SoS’s permission for the
Westferry Printworks revised scheme [now quashed]112.
6.25 All agree that the NPPF§196 applies to these assets and that it is consistent with
the adopted development plans in London and LBH. There is nothing in the IPLP
which indicates that the protection of WHSs is not subject to the NPPF§196
balance, or indeed that they are any more, or less, important than they are in
the current version of the plan113.
6.26 The effects here are all matters of setting. The correct approach is as follows:
6.26.1 understand the significance of the asset in question
6.26.2 determine how the setting contributes to the significance of the asset
6.26.3 assess to what degree the change to the setting causes harm to the
significance of the asset.
6.26.4 in terms of a cumulative approach to the assessment, it may be relevant to
ask whether the change in question compounds or further exacerbates pre-
existing harm to the asset’s significance.
6.27 Three further important preliminary points.
6.28 As generally agreed, the less than substantial category comprises a sliding
scale, spectrum or gradient from (at the bottom) the merest trace of harm, to
(at the top) a very significant degree of harm a touch below what would fall
within the substantial category of harm. However, some of the allegations of
harm are pitched up towards the higher end of the less than substantial
category. These are simply overstatements.
6.29 It is possible to get a clear sense of what kind of effect the top end of less than
substantial represents, by looking at the way the Court has defined substantial
112 This is true taking into account all of the points made on behalf of RBGK relating to the importance of
WHS protection, the views of ICOMOS, the obligations on the UK to UNESCO, the fact that the WHS is
“top of the tree” etc. (apparently no pun intended). The Applicant, and Dr Miele do not argue the
converse, but it is simply not an answer to the fact that WHS is covered in the NPPF which represents
the UK Government’s high-level policy response to the duties on it owed to UNESCO.
113 See the EiP Panel report on emerging WHS policy, CD C6.
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harm, which would be only a degree away. In the Bedford case114, the Court
defined substantial harm in this way:
What the Inspector was saying was that for harm to be substantial, the impact
on significance was required to be serious such that very much, if not all, of the
significance was drained away.
Plainly in the context of physical harm, this would apply in the case of
demolition or destruction, being a case of total loss. It would also apply to a
case of serious damage to the structure of the building. In the context of non-
physical or indirect harm, the yardstick was effectively the same. 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.
6.30 It is clear that an asset would have to derive a great deal of its significance from
its setting in order for change in its setting to cause it substantial harm. That
was the finding of the CC Inspector, and (dealing with essentially the same
range of designated heritage assets as in this case) he said this, in a passage
which goes to the heart of why the assessments of harm by HE, RBGK and
LBH115 are pitched far too high:
However, having regard to the conclusions in Bedford, notwithstanding
questions of scale, design and prominence, substantial harm could only be
caused if the heritage asset concerned derived most of its significance from its
setting. It is difficult to see how very much if not all of the significance of the
asset could be drained away otherwise. One can think of examples such as
fortifications, eye-catchers or follies, lighthouses perhaps, where a good deal of
the asset’s significance would be contained in its setting. On that basis, the PPG
is not wrong, in general terms.
However, no-one could reasonably argue that any of the designated assets at
issue in this case derive most of their significance from their setting. In all
cases, by far the greatest part of their significance, and in the case of the WHS,
its OUV, is held in their confines and/or fabric. What this means is that in the
light of the conclusions in Bedford, the harm I have identified can only
reasonably be assessed as less than substantial.
As I have referred to above, points were made about the cumulative impacts on
Kew Gardens …much of the significance of Kew Gardens is tied up in the
gardens and the buildings. Kew Gardens derives some significance from its
setting but that is a small part of its significance overall. In this context, even if
RBGK is right, and one should look back further than the date of inscription to
assess cumulative impacts, the harm caused by the proposal, along with all the
other intrusions into the visual envelope, would still be less than substantial and
nowhere near the level of harm required to be deemed substantial … all the
intrinsic significance of Kew Gardens would be untouched.
114 CD J1.
115 Mr Croft, Mr Dunn and Dr Scott
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6.31 These are important words of caution against overstating harm to significance
due to impacts on setting116.
6.32 Second, and connected, is the issue of limited impacts on an asset with multiple
aspects to its significance. Concern is expressed that one should not artificially
lower the degree of harm on the basis that only one aspect of significance is
harmed. That proposition on its own is obviously right, but the main point is a
simple one – what harm does the proposal do to significance? If it affects to
some degree one part of what makes an asset significant, but leaves the other
3 or 5 or 10 aspects of significance untouched, that must be relevant to the
assessment of how much harm to significance would be caused. Assets rich in
significance are inherently more robust. That is not to say that harm to one
aspect is unimportant; but it does indicate that with such assets it takes harm
to multiple aspects of significance for harm to be pitched high up the less than
substantial scale.
6.33 Third, cumulative harm. There is no dispute that, in very simple terms, the
analysis is of incremental further harm caused by the scheme. That takes into
account what harm has already been caused as the baseline. However, the
harm attributable to the scheme under consideration is not the total harm. It is
the degree of additional harm. Where this matters is when there is a very large
degree of existing harm, and a further straw may break the camel’s back117.
That is the case RBGK advances again, in an almost identical way to the case
before the CC Inspector. But it is not in fact the case in respect of any of the
assets in question at this Inquiry.
6.34 It is also very important to be clear that analysing the further incremental
degree of harm is not a backdoor route to large-scale harm through multiple
small increments. The exercise in every case takes as the baseline the latest
cumulative baseline. Once any particular tipping point is reached, the next
increment may be judged unacceptable. As it happens, the effects here, seen as
a proposed addition to the consented and built baseline, do not cause any
116 In relation to Kew Gardens, the CC Inspector’s views are a good guide; they are not inconsistent with
the Mayors SPG, the inscription or the MP – the setting must be given due weight but not treated as so
central to the OUV that any further impact, however small, is unacceptable. The overstatement by Kew
Gardens of the importance of the setting on the OUV of Kew Gardens and what that means for the likely
degree of less than substantial harm was rejected by the Curve Inspector by reference to exactly the
same documents which are now relied on again at similar length by Kew Gardens, but they continue to
ignore the clear findings of an Inspector who recently considered these very points.
117 This is the central problem with HE’s submissions, by reference to the Inspector’s Haverfield Towers
example. It is not the case that the harm of previous schemes would “never be factored in” to the
successive development control decisions. It would, and it would inform the view as whether the scheme
in question at each stage made a material difference to the prevailing degree of harm being experienced
by the asset. If the effect would be de minimis for the first couple of additional storeys, then that is the
relevant judgment – the incremental harm would not change the way the setting contributes to the
asset’s significance. At some point – and it would depend on the facts (hence Dr Miele’s “good
question”) - the incremental change would bring about a perceptible change in the degree of overall
impact felt by the asset. It does not follow that any further harm would bring that kind of change about,
as the example of the Haverfield Towers precisely shows. Whether it would here is a judgment, and Dr
Miele does not consider that it would. The HE/Kew approach is so hair-trigger sensitive to change
because it assumes that all additional harm would have that effect, which is simply not the case.
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tipping point to be reached, indeed though they cause identifiable further harm,
they are relatively small scale118.
Kew Gardens
6.35 The evidence of all the experts elides the OUV of the WHS, the CA and the RPG.
In addition, because the Orangery (Grade I) is an important building for the
OUV, the impacts on that have been treated as running with the WHS effects.
OUV is agreed to be equated with significance. That is all understandable and
these submissions also take points in that way.
6.36 What could have been a far too complicated analysis is simplified because the
effect of the scheme is very limited: a short stretch of kinetic views around
View 30, in which the scheme appears at varying angles including a gap in
which it fades from view. What effect would seeing the Citroen scheme in that
way above the Orangery have on the OUV of Kew Gardens?
6.37 Some effect, as we accept – it would distract to some degree from the
Orangery. But the case for that harm being anything more than a very limited
impact on the OUV etc. is founded on several erroneous propositions:
6.37.1 that the OUV has been so harmed by development in its setting that its
significance has almost already suffered substantial harm119;
6.37.2 that any additional visibility of development outside Kew Gardens affects the
significance of the OUV and no account should be taken of its London context
other than as harm;
6.37.3 the impact on View 30 is particularly important because of the role of that view
in understanding the palimpsest of landscape design.
6.38 None of these propositions is true. The site visit will no doubt have assisted with
the judgement as to how much or little the OUV would be affected:
6.38.1 the Orangery view from around and about View 30 would be affected; although
the emerging BFC scheme is clearly visible in that space already. The damage
would be (a) in lifting the eye above the Orangery roofline, and (b) a further
modern element glimpsed in the views from Kew Gardens, eroding somewhat
further the self-containment of the Gardens;
118 Seen in the context of the existing relevant impacts on the asset. Kew Gardens closing submissions,
footnote 173 records the exchange with Dr Miele accurately, including his view that his approach based
on the existing harm as minuses to be added to. The argument of death by 1000 cuts is no different
from any heritage impact assessment and it cannot be right to refuse – contrary to the HE advice –
development which does not materially change the degree of existing cumulative impacts. It would be
right to weigh heavily against the grant of permission any finding that a scheme would cause such a
change in the prevailing set of harms. But whilst RBGK clearly feel embattled, this is not the right case
to resist on that basis. The CC – which might still reappear – might be such a case given its much
greater range of impacts on the WHS. But Kew’s approach confuses the generality of the cumulative
issue with the actual impact of this scheme.
119 This proposition continues to form the core of the RBGK case at this inquiry. The time has come to
say ‘no’ etc. That (a) entirely ignores the balancing exercise, which Kew Gardens have not carried out
and do not even really mention, and (b) is far too broad brush approach which assumes that any further
degree of harm is unacceptable and then works back to a position, which is untenable on the evidence,
that the OUV is at tipping point of harm. A few minutes at Kew are enough in themselves to show how
unsupportable that position is.
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6.38.2 however, the setting of the Orangery needs to be seen as a whole. Its principal
elevation is its greatest designed interest120 and that is best seen from the
space in front of it from where it is, and (the evidence seems to indicate)
always was, best viewed121. It is an imposing and bright white built form. Its
historic interest, its architectural interest and its connection to the botanical
evolution of RBGK would be untouched by the scheme. Its main axial view
would be unaffected122. It is only the oblique view from View 30 between later
planting (most of it evergreen) that would be affected. Its own significance
would be affected to a small degree by being distracted from a little in some –
but not the most important – views of it123;
6.38.3 taking the third error above first, the truth is that View 30 is not a view of
particularly great importance. It’s a view in the WHS in which an important
building is partially visible but beyond that, the evidence does not support the
attempts to suggest that something really significant would be affected:
a) the view is not one that was designed at any point – it is a by-product of the
way the Gardens changed in various ways over 200 years
b) it is not a view that existed in the 18th Century
c) the landscape in which the Orangery was originally positioned has been lost
and transformed into something quite different in the 19th and 20th
Centuries. RBGK quite properly accepted that the original landscape had
been denatured and that nothing but a memory of that landscape still
existed
d) indeed, the evidence is tolerably clear – the Orangery was separated from
the Great Lawn by trees planted as part of a designed separation. These are
not replicated on images produced not for accuracy but for display, and
which all agree must be read with a degree of caution due to the effect of
artistic licence124. Kew’s own c.1785 plan bears trigonometry lines125, none
of which cuts through the grove of trees because, presumably (by contrast
120 Accepted by Mr Dunn XX
121 Compare the original enclosure to left and right of the Orangery, the Burton/Nesfield plan bringing
the Broadwalk and planting into an orthogonal relationship with the building, and the modern
arrangement which gives the Orangery a relatively tight main setting to the south.
122 See the visualisations in the Curve TVIA and those in CD N1.
123 Dr Miele disagrees with the Curve Inspector’s view at CD I4 IR 12.115 that view 30 is “essential to
an understanding of the place of the Orangery in the designed landscape”: it tells one nothing about the
vanished 18th Century landscape; the evidence shows that the 19th Century design did not include this
view as part of the design, and the contemporary situation is that some oblique views are available
(view 30 set of views) but they are often occluded by Kew Gardens activities, interfered with by the
weather station, and tell one nothing about any landscape compartment or theme. So, in fact these
views are very difficult to interpret as part of an understanding of any phase of the design.
124 Hounslow assert in closing, contrary to Dr Scott’s evidence, that the Marlow image must be read with
an understanding of artistic convention. It is hardly inconceivable that the separation in the design
which made the Orangery largely invisible would be removed in the image of an idealised Arcadian
landscape. Of course, Chambers would be happy with such an image in his book – this has nothing to
do with accuracy.
125 This is not a derivative or artistic image but a working drawing with sight-lines drawn clearly on to it.
There is no idealisation here, and it shows that one could not set a view through the area of trees.
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with other buildings and open-grown tree groups) no line of sight was
available for use by the surveyor126
e) the Great Lawn has not survived and there is very little about the current
network of footpaths and lawns which relates to the 18th Century landscape
(shorn of lakes, open views, the White House itself etc.)
f) as a result, view 30 tells one nothing of any importance about the original
design and is not a Decimus Burton designed view127.
6.39 The attempts artificially to increase the importance of the only glimpsed view of
the scheme from within Kew Gardens is itself an indicator of the strength of the
harm case advanced by RBGK, HE and LBH. Not everything, even at Kew, is
laden with meaning that is important for all humanity. For instance, both RBGK
and HE witnesses accept that the palimpsest is not capable of being affected
itself by the scheme because it only has existence as a quality inherent in the
gardens themselves.
6.40 The OUV of Kew Gardens springs from the massive number and quality of
designed spaces, the history of the place, and the connections between the
physical place and the scientific endeavours undertaken at RBGK. It is packed
with significance, analysed as its attributes or the criteria. There are over 50
listed buildings whose significance would not be affected at all by the scheme;
the vast majority of its spaces and views would be untouched; none of the
historical or scientific aspects of significance would be eroded in any way, and it
is just unrealistic and counter-productive to assert otherwise.
6.41 That is why the Applicant’s heritage witness is right to say that the harm is in
the lifting of the eye over the Orangery and the small further degree of
intrusion128. These submissions return in due course to the issue of mitigation,
something which has changed during the course of the Inquiry.
6.42 Returning to the cases advanced by the other parties, it is notable that RBGK
itself is alone in alleging that, on the clock of heritage harm, it is 11.59 and
50 seconds. That is not the view of the other 4 heritage witnesses, and is
inconsistent with the clearly expressed views of the CC Inspector. The only
change from the RBGK case at the CC Inquiry is that instead of alleging that the
instant proposal would breach the midnight tipping point it would stop a second
before it.
126 Kew Garden’s closing submissions §§80 and 81 fall into the error of giving too much weight to the
pictorial images and overstate the designed visual connection between the Great Lawn and the botanical
area wherein lay the Orangery.
127 It is not a modern designed view either, as the changes over the 20th Century to which Mr Griffith’s
drew attention attest, and the way in which the Trustees have planted evergreen trees along the
Broadwalk screening the Orangery and its immediate setting from this wider area of lawn.
128 Both RBGK and HE allege that the views of the scheme over the Orangery would be harmed to a
much more severe degree than Dr Miele considers. His point about how the eye will distinguish depth of
field, the difference between the scheme, some 1.2km distant from the viewpoint, have not been
grappled with. The point is directly relevant to the degree to which the viewer will find the scheme
proposals “assertive” or “incongruous”. Insufficient attention has been given by Kew, HE and Hounslow
to the effect of the design as a quiet, recessive set of forms. Even were the scheme the only impact –
and of course the Brentford Stadium scheme is already present in these views – it would be a harmful
distraction but of a relatively muted and modest kind.
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6.43 It is simply not the case that Kew Gardens' setting has been so harmed that it
stands on the brink of annihilating the OUV. The proposition is faintly ridiculous.
The scientific and biological interest, the palimpsest, the historical (vanished)
aspects, all of the physical attributes of the Gardens themselves, in every
respect, would remain untouched by changes to the setting.
6.44 As for setting as at today’s date, HE describes the setting as well preserved –
and indicated that HE and RBGK had liaised but couldn’t say whether HE had
baldly told RBGK that it was overstating the current degree of cumulative harm.
6.45 It is not on an in-danger list and there is no evidence that ICOMOS considers
that it would be entered onto such a list as a result of the Citroen scheme – let
alone de-inscribe it as having had its OUV vitiated or drained away (like the
Oman case where the biological interest had literally walked away). This is a
further indication of an overblown judgement as to the baseline. One can see
why RBGK was keen to suggest to the Applicant’s heritage witness that he had
not properly taken into account cumulative harm – in RBGK’s eyes, the
cumulative harm is already all but fatal to OUV, which is self-evidently not the
case.
6.46 Nor is it the case that every further glimpse of modern Brentford adds to the
cumulative harm129. The Applicant’s heritage witness accepts that, unmitigated,
the scheme would cause some limited harm due to its appearance above the
Orangery in View 30. The RBGK approach leaves no room for expert judgement
about degree – it says that things have already ticked on to near substantial
harm, and any further glimpse, however small, would be unacceptable. Leaving
aside the way that approach cuts clean across the balancing exercise we all
agree is enshrined in national and local policy, it is unjustified on its own terms
and contrary to the way the CC Inspector rejected a very similar argument in a
case where (again, general agreement) the scheme in question would have
done much more harm to Kew Gardens’ setting than the Citroen scheme130.
6.47 It stems in part, however, from the way the CC Inspector adopted HE’s
description of the setting contributing to significance by preserving Kew Gardens
as a world apart131. It is important to look carefully at why the CC Inspector said
that – in his view the absence of visual intrusion revealed and enhanced what
was of significance rather than actually comprising it. That is not really
contested by our heritage witness – his point is that the significance of Kew
Gardens WHS hinges in a relatively small way on this point, compared to the
riches contained within the site and, more intangibly, in its history, associations
and connections to the world of botany and science.
6.48 So, the core question here is whether the additional glimpses of the outside
world that the Citroen scheme would provide would seriously, or even
moderately, harm the ability of the viewer to appreciate, or to have revealed to
him or her, the significance of Kew. They would distract views over an important
building for a brief section of kinetic views; that would, to a very small degree,
129 For the reasons set out above – some changes do not move the dial materially in terms of overall
harm to an asset. This is where the slippery issue of baseline becomes so challenging. The degree of
harm in the existing situation must be taken into account, but rather than assuming that any degree of
additional harm makes a difference, one must look at the incremental effect as GPA2 and GPA 3 advise.
130 CD I4 IR 12.145-149 pages 144-145.
131 Ibid IR12.103.
https://www.gov.uk/planning-inspectorate 25
compound damage done by BFC and a number of other existing visual
intrusions, although the foreground, big sky, prominence of the Orangery and
existing screening within Kew Gardens would be unaffected. Outside those
limited views, the scheme would not be visible, and the majority of the existing
impacts would not be perceptible for large swathes of the Gardens either. That
degree of harm would affect the Grade I listed building and the OUV to a limited
degree – since they are assets of the highest importance, the harm, although
relatively circumscribed, is a matter of significant weight.
6.49 The site visit has been undertaken but in any further consideration of the
impacts at Kew Gardens (and indeed Kew Green/SotG), considerable caution
should be exercised when looking at the visual material latterly produced by
RBGK – it suffers from exactly the same problems as the same type of material
was found to have by the CC Inspector. It is baffling that RBGK chose to present
large scale versions of imagery which so recently had been criticised as being
unreliable. No weight should be given to it.
6.50 It is recognised that the MPlan in its emerging version stresses the importance
of limiting further visual intrusion into Kew Gardens, but it is also a theme of the
document that RBGK are actively managing the visual envelope with new and
amended planting. In that connection it was a genuine surprise to hear from
RBGK’s witness that such planting is being actively discussed132. RBGK’s witness
acknowledged that planting behind the Orangery would be in keeping with the
original design. One surprising aspect to this evidence is that the idea of
mitigatory planting to screen the only limited view of the scheme had never
before been mentioned by RBGK other than to say that planting is slow and
unreliable. This has not deterred generations of RBGK management from using
it to respond to changes in the setting to the gardens, and of course it’s actually
in the MPlan .
6.51 Planting behind the Orangery would be capable of screening out the view of the
scheme. It is regrettable that RBGK did not give more detailed attention to this
rather than alleging that the scheme would all but destroy the OUV of Kew
Gardens – it is clearly a potentially deliverable and effective mitigation that
RBGK itself perhaps intend to employ to mitigate the view of the BFC
development. An illustration has been produced133 which shows that it would
only take 4 evergreen trees to screen the development from View 30; they
could be planted on an existing tree planting area to the rear of the Orangery as
semi-mature trees; it is true that they would take a number of years fully to
132 The Applicant does not accept that the CC Inspector rules out the importance of planting – see CD I4
IR 12.131, not cited in the RBGK closing. The Inspector there – dealing with a scheme which had
multiple impacts from various areas of the WHS – said: Notwithstanding that, the appellant makes a
sound point about the ability of RBGK to manage, or plant trees. It is clear that the gardens are closely,
and well, managed and if the march of development north of the Thames is something RBGK is
concerned about, then they do have the ability in their planting and/or management plans, to do
something about it. There does not appear to have been any evidence at the CC Inquiry that RBGK was
actively looking at the issue of mitigatory planting. It is hardly a surprise that L&Q seeks to follow up on
the hitherto undisclosed exercise that Kew Gardens is in fact occurring. What is surprising is that Kew
Gardens are making such a hostile point about the entire idea of potentially screening the views over
the Orangery. It is entirely in accordance with the MPlan and RBGK and the SoS should note that RBGK
seeks to prevent the agreed benefits – all of significant weight and in line with the NPPF – on the basis
of a small additional increment to harm which they themselves could mitigate.
133 ID40
https://www.gov.uk/planning-inspectorate 26
mature, but they would be in the right place to be looked after properly. Not to
at least consider this mitigation would be inconsistent with the MPlan .
6.52 A final point on the idea of the world apart as an integral part of OUV. This is
not a concept one finds in the inscription documents or in earlier references to
the gardens; it is something that has grown from the evidence at the CC Inquiry
and features heavily in the emerging MPlan . It is a little over-stretched as a
concept.
6.53 Kew Gardens is not hermetically sealed from the outside world – one of its
oldest and most important buildings, the Pagoda, is advertised as a panoramic
viewing spot from which one can see (on a good day) as far as Canary Wharf.
Kew Gardens’ place in London is celebrated. Whilst the Haverfield Towers, and
the Kew Eye are accepted to cause harm, their effect on the urban setting for
Kew Gardens cannot be ignored or simply written off as more harm, though
they do cause such harm. LBH recognise this in their report on Albany Riverside,
which it supported despite a degree of visual intrusion next to Kew Palace; one
should not entirely exclude the fact that the setting is partly informed by larger
modern buildings on the other side of the Thames from a more general and
balanced approach to whether Kew Gardens is a world apart which cannot afford
any further glimpses of our world.
6.54 LBH’s upper end of less than substantial, close to substantial (for OUV and for
the Orangery) is obviously an over-exaggeration, as is RBGK’s at the absolute
limit of less than substantial; even HE’s moderate is too much given the small
area affected and the small incremental impact134. The Applicant135 accepted
that his analysis did not treat all of the existing visual intrusion as baseline
harm, but this makes little difference to his analysis, (a) given that Kew
Gardens is not actually a world apart and not all views of buildings beyond Kew
Gardens are simply harmful and (b) bearing in mind that his assessment is right
about the value of view 30 and sensible about the degree of damage that the
pre-existing visible buildings have done to the significance of Kew Gardens. He
is still right to place the degree of harm at the lowest end of the less than
substantial spectrum, but still attracting significant weight in the balance.
Alternatives to the impact on Kew Gardens
6.55 Where in this analysis should one address the question of alternatives? HE relies
on its guidance for the proposition that harm to designated assets should be
justified in part by an analysis of whether the same or similar benefits might be
brought forward by a scheme which avoids the harm. It is a moot point whether
in this case it is necessary to produce evidence of this kind but the question is
largely academic because the SoS has firm evidence to show that there is no
scheme which could come forward on the application site bearing the same or
even similar benefits, which would not cause harm to Kew Gardens136.
6.56 No objector undertook this exercise, and neither LBH nor HE at pre-application
or pre-call in stages requested the Applicant to model a scheme invisible from
134 Dr Scott, Mr Croft and Mr Dunn respectively
135 Dr Miele
136 The Applicant stresses that this is a matter of evidence, not speculation.
https://www.gov.uk/planning-inspectorate 27
Kew and test it137. Schemes with maximum 15 and 12 storeys were assessed,
but as is clear from the visual evidence before the Inquiry138 it is only the latter
(i.e. no greater than 12 storeys) which would avoid harm to Kew.
6.57 The SoS should be extremely cautious about the submissions made on behalf of
RBGK about the potential for alternatives to the scheme on the site139. RBGK did
not call evidence about alternatives, and did not prepare any evidence of its
own about them. The points now sought to be made are without merit:
6.57.1 the issue of alternatives that were looked at is covered by the evidence
submitted in the DAS and the architect’s proof – the issue has not suddenly
emerged at the Inquiry. The architect explained why it was not appropriate to
conduct Accurate Visual Representation (AVR) modelling of those alternatives.
It would be completely disproportionate to require such an exercise to be done
at that stage of scheme development;
6.57.2 there is no real uncertainty, absent AVR modelling, of how much would have to
be removed to ensure no visual impact on Kew Gardens. The evidence140
simply shows what we can all see from the visual material– 6 storeys would
need to be removed to ensure no impact141;
6.57.3 there was no discussion of a 13 storey scheme. RBGK didn’t ask the architect
about it, didn’t call evidence about it, doesn’t suggest that it would be invisible
(it wouldn’t, clearly – just count the storeys on the View 30 images);
6.57.4 it is suggested that the architect’s approach to the Notional Reduced
Scheme142 is flawed because – apparently this is obvious, according to RBGK –
there would have been a redesign of the layout and public open space. The
DAS comprehensively gives the lie to that assertion – the shape of the site, its
relationship to the leisure centre and the streets as well as surrounding
buildings make it impossible airily to suggest that there is a completely
different way of designing the scheme or site;
6.57.5 a similar point is the unsupported suggestion that there would have to be a
different stepping arrangement. There is no basis for that suggestion, given
the need for tall buildings (which they would all still be) to be articulated and
to create or contribute to a varied cluster. If RBGK had wanted the SoS to give
any weight to this suggestion, which is contrary to the existing evidence, it
should have put it forward formally and let it be cross examined;
6.57.6 in any event, the quanta of affordable and market housing that the Notional
Reduced scheme would support is severely unviable, and provides a clear
evidential basis for rejecting the assertions now made that there must be some
other way viably to design a scheme differently from the Applicant’s evidence.
Any such hypothetical (indeed, imaginary) further alternatives would clearly be
137 The suggestion in IC of Mr Baker that the post-application letter at CD B2 (December 2017)
represents Hounslow asking the Applicant to test the current scheme by showing them a 15 storey
scheme for assessment is a misreading of the letter.
138 As the architect said, and as Dr Miele said when asked
139 at pages 45-49 of RBGK's closing submissions
140 recounted at RBGK Closing Submissions footnote 287
141 The Hounslow closing §136(ix) is factually incorrect. Mr Connell did not say that he thought a 15
storey building would be invisible from Kew Gardens, please see notes of that exchange.
142 ID26
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well below viable levels of return seen against the benchmark of the viability
work.
6.58 Given the viability evidence that has already been produced about the
application scheme, it is clear that the scheme is only deliverable with marginal
profit by the Applicant as housing provider, at its current scale. It has always
been obvious that a markedly lower scheme (i.e. invisible from Kew) could not
viably be delivered. The viability experts have given a categorical demonstration
that is the case in the two notes143:
6.58.1 they have used the same financial model as for the application scheme, which
is unobjectionable, and the evidence base for the appraisal is also the same;
6.58.2 the scheme, as the architects say in the attached note, represents more of a
decapitation than a haircut. It would produce no AH at all. If one inputs the
same quantum of AH into the model, the scheme is unviable to the tune of
£36m. Even if one had the same percentage of affordable (i.e. 49% by unit)
on the fewer overall unit numbers, that gives a loss of £18.5m;
6.58.3 even if one approaches it on the basis of the 2.1% profit the Applicant is
prepared to accept on the scheme, the scheme would provide no AH – indeed
at 100% market housing the profit would be 1.7%. The Applicant would not be
interested in delivering a scheme of that kind and it would be so utterly
contrary to policy that one cannot assume that a scheme could come forward
that anyone rationally would deliver at 12 storey maximum height.
6.59 The reality is therefore that regeneration for housing and AH on the application
site involves buildings which need to be of a height that would be visible from
Kew Gardens.
6.60 No other alternative has been put to the Applicant over the extended period of
the application, including at the Inquiry. There is no evidential basis for an
assumption that there is another viable scheme bringing forward AH (at all, and
certainly not on anything approaching the same basis as the application). This is
unsurprising when one looks at the agreed viability of the application itself.
There is a fine balance between the amount of market units needed to make the
scheme viable and subsidise (even with some grant available) the affordable
50% offer. As soon as one markedly reduces the overall quantum of
development, the balance between market units, overall numbers and
affordable is thrown completely out, and (as the viability evidence shows) the
scheme becomes completely unviable even at a very low profit level.
6.61 This is quite different from the broad-brush conclusion in the CC case, where it
was judged likely that another scheme might come forward which could achieve
some of the scheme benefits (the employment), particularly, in that case, due
to the presence of a fallback scheme. The parameters are completely different
here and it is not possible to assume any such thing. Nor is the 1-4 CIW
143 ID26 and ID40. The evidence is a clear, high-level demonstration that there is no realistic scheme
which would remove or significantly reduce the harm to heritage assets.
https://www.gov.uk/planning-inspectorate 29
scheme144 an indicator even that a slightly lower scheme could on the Citroen
site could achieve 50% AH. As the viability experts note145:
6.61.1 both Citroen and CIW have broadly the same overall unit numbers and AH
number and split; however, crucially the 40% low cost rent in the application
scheme is all London Affordable Rent; in the CIW scheme is split between
London Affordable Rent and simply affordable rent – Quod illustrate the
difference between the two;
6.61.2 furthermore, the Citroen site scheme has high fixed costs, including the EUV of
the site as a car showroom, which greatly exceeds that of the cleared former
industrial site at CIW. This has a major effect on the viability appraisal and
makes the two cases quite different.
6.62 Consequently, there is no comparison between the viability profile of the two
sites, and no evidence before the Inquiry that a viable scheme that avoids harm
can bring forward any of the same AH benefits.
6.63 I return to the issue of alternatives later.
Strand on the Green (SotG) - including its listed buildings
6.64 There is nothing world apart about the SotG. It is a compressed, frieze-like set
of buildings which have for many years been seen in a wider London context
from the southern bank of the river. The CA Appraisal for the area lists ten or
more key views, only one or two of which would be directly affected by having
the scheme appear behind the key row of riverside buildings. Modern London
appears in many of those views.
6.65 LBH says that the harm would lie in the middle of the spectrum of less than
substantial; HE says the harm would be at the upper end, possibly reflecting
HE’s earlier, now withdrawn, position that the harm to SotG would be
substantial. Again, there would be harm due to the eye being distracted
upwards from the riverside houses, but it would be relatively limited in its
scope.
6.66 First, there would be no direct impact on the asset. Second, there would be no
impact on the relationship (in any view) between the frieze and the
River/Oliver’s Island, which is probably the key component of its significance.
The houses are relatively grand in some cases, but they all face directly onto
the River and have a picturesque appearance and a firm historical connection
with the River and the Court at Kew. It is this very intense relationship which
one enjoys from the southern tow path, and the scheme would not affect it.
6.67 Furthermore, the kinetic view means that the position of the scheme behind or
in relation to the important houses and the river changes as one moves. The
moving visualisation of the scheme presented to the Inquiry makes it clear that
it is only in the eastern half (or perhaps third) of the walk that the scheme
would sit in part behind any of the houses (for instance, View 23, where the
scheme reads with the BFC scheme on another plane, but sits over a couple of
144 This point arose from a question to Mr Baker from the Inspector.
145 In the note to which other parties have 21 days to respond. All of Quod’s points are visible on the
face of the public record. Mr Baker, to whom this point was put, was not in a position to assist the
Inspector with the detail of the CIW viability assumptions or the differences between the two.
https://www.gov.uk/planning-inspectorate 30
the furthest-west buildings in the run at SotG). View 23 was chosen as a worst
case. But about 30 or 40m further on, including when one has the orthogonal
view looking directly at the faces of the houses across the river, the scheme has
pulled a long way to the west and is not directly distracting the eye or harming
the setting. Indeed, the application scheme has receded away from a direct
skyline relationship with the houses at SotG before the viewer has gone past the
end of Oliver’s Island.
6.68 It’s unclear whether that variation, and partial impact, has really been grappled
with by LBH or HE. Perhaps both have focused overly on View 23. HE refers to
the setting to the CA as mostly clear, which appears to be a recognition that
BFC is too far west to play much of a role, being sharply distinct from the CA.
Clearly, the Citadel would cause an impact, and one which does not diminish – it
would always sit behind the important run of houses. LBH similarly recognises
the setting of the CA as preserved with little harmful alteration – however, its
witness focuses almost exclusively on View 23, where there would be change
and harm, without looking holistically at the entire kinetic view.
6.69 Mr Dunn uses the term primacy in his evidence when trying to quantify the
harm to SotG. The essential prime role of the houses and the river would be
untouched, and for most of the relevant view, so would the skyline; there would
be some views in which the skyline would be interrupted. Overall, the strong
effect of the frieze of houses fronting the river with sky behind would be
maintained in its primacy, with only a limited number of views changed such
that the scheme would compete at least in terms of the skyline.
6.70 For these reasons, the Applicant’s assessment of some but relatively limited
harm is to be preferred. Other than in a very short set of views, what is key to
the setting of the CA would not be harmed by the scheme.
6.71 A word here on alternatives also. The images show that to avoid appearing (in
that set of views to the eastern end of the View 23 group) behind the houses at
a noticeably greater height and scale, the scheme would have to undergo a
similarly radical reduction in height and scale – at least as many storeys would
need to be removed as in the Notional Reduced Scheme. The work is before the
Inquiry to show that is not viable and deliverable. It is also not a good
assumption that a reduction to the height of 1-4 CIW would be a reasonable
alternative. That scheme is in a slightly different location and its resolution (not
grant) is partly based on the screening effect of the application scheme, despite
LBH’s reluctance to face the plain words of the officers’ report.
6.72 The Applicant should not be criticised for not seeking, beyond what it has done,
to prove a negative – i.e. that there is no alternative scheme which would bring
the same or similar benefits without the harm or with less harm. The viability
parameters of the application site are what they are – this is the right scheme,
deliverable by the Applicant, and brings very significant benefits. It would cause
some harm to designated heritage assets, but that demerit is not exacerbated
by the fact that there is a less harmful alternative. There simply is no such
alternative.
Kew Green
6.73 Less needs to be said about the potential impact on Kew Green – the
visualisations show that the scheme will do no more than peek above a couple
https://www.gov.uk/planning-inspectorate 31
of buildings, within the tree line. There would be no direct impact. The historic
relationship of the Green to the Palace will not be compromised, and nor will the
all-important relationship between the large open green and the boundary
buildings and trees. That relationship will not be disrupted at all.
6.74 Again, this is not a designated asset which is said to derive any part of its
significance from being separate from the rest of London. It is bifurcated by a
busy road which introduces noise and a set of very clear views of Brentford into
the central part of the CA. Away from the road, one would have to be standing
right at the southern extreme of the Green (hence the choice of Views 20
and 22) to have any view of part of the application scheme; it is a limited set of
views.
6.75 In those views, there is little sense of disruption to what is a scene of large
components – large sky (the scheme will not jut up above the tree line), large
green foreground, large solid horizontal band of boundary buildings, all of
different heights and varied designs. The extent to which the application scheme
will be visible will be lost in that combination of very strong features. It would
be subservient to any buildings against which it might be seen.
6.76 The Applicant’s heritage witness is correct to judge that there would be no harm
to the significance of the asset.
Call in Issue 4: Consistency with the Development Plan and Emerging Plan
6.77 The only case advanced against the scheme is based on heritage harm. LBH do
not (subject to the signing of the s.106 agreement) maintain draft reasons for
refusal 2-5. LBH made it plain that there is no freestanding design or townscape
objection beyond its evidence. HE and RBGK simply raise heritage points by way
of objection and call no other evidence.
6.78 It is self-evident that insofar as LonP and HLP policies seek to prevent harm
being caused to designated heritage assets including the WHS at Kew Gardens,
the scheme is not consistent with those aspects of the plans.
6.79 However, no party to the Inquiry suggests that one should reach a view on
whether the development plan is complied with overall unless one carries out a
balancing exercise, since the scheme garners strong support in housing, AH,
regeneration and economic policy terms, which must be weighed against some
strong negative findings on heritage policies (despite the relatively limited
degree of harm). In essence, this is the same exercise that one must undertake
under NPPF§196.
6.80 It is suggested (by RBGK and perhaps others) that the WHS protection policy
and the other heritage policies are very important and therefore failure to
comply with them equates to a failure to comply with the development plan as a
whole. That is not the case:
6.80.1 it is not the case on the face of the policies, which do not themselves suggest
that permission ought to be refused if they are not complied with – it would be
surprising indeed if they had said that as they would not then comply with the
NPPF;
6.80.2 the housing and AH policies are not subject to compliance with the heritage
policies – i.e. effectively making them subservient to the heritage policies.
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They are hugely important, freestanding policies, compliance with which needs
to be weighed against the degree of non-compliance with aspects of the
heritage policies.
6.81 Specific policy points arising also include the following:
6.81.1 LonP Policy 7.4 is a general townscape and design policy with which the
scheme largely if not totally complies. There is no valid criticism of the
excellent design of the scheme itself, its accommodation, amenity spaces,
public spaces, active frontages, materials, detailing, legibility and wayfinding,
and how it would enormously improve the area. The public space would include
a high quality portico with protection from inclement weather. The only
criticism is B(e), being informed by the surrounding historic environment – the
architect explained about the way the orientation of the blocks, the way they
step up and their brick-based materiality were all ways of knitting into the
townscape including in medium-range views from the Wellesley Road CA;
6.81.2 if one takes the SotG and Kew Gardens as surrounding environment (which is
a moot point), the architect indicated that regard was had to views from those
areas, but that did not on balance lead to a scheme which had no impact on
them, for a variety of perfectly proper planning reasons. It is not true also to
say that since the Applicant was originally advised146 that there would be no
harm, no such balance was in fact undertaken. The architect’s evidence was
clear in writing and orally – the design team was well aware of the likely view
of RBGK and HE from early on in the design process, and this was borne out
when consultation (latterly) took place;
6.81.3 LonP Policy 7.6 is about the architecture of schemes. RBGK and HE do not give
evidence specifically about the tests in this policy. The criteria are all met,
including that of policy requiring buildings to be of the highest architectural
quality. The architects are award winners and the scheme is a highly
accomplished piece of work, achieving multiple objectives on a relatively
constrained site. There is no objection on design quality from the
daylight/sunlight results – LBH seemed to apply far too high a test, when the
law and decisions agree that the BRE guidelines must be applied flexibly in
London. The results are not much different from the Albany Riverside scheme,
which LBH is scheduled to support at Inquiry later in the year, and which
officers described as having high design quality147;
6.81.4 LonP Policy 7.7 contains the now familiar list of guidance on tall buildings. It is
notable that its prescriptive approach is not being carried forward in the IPLP,
but in this case that is rather academic; the scheme complies with the criteria.
Cross examination focused on criterion E and impact of tall buildings in
sensitive locations; the policy says that tall buildings should be given particular
consideration. The policy adds little;
6.81.5 it is really LonP Policies 7.8 and 7.10 where there is non-compliance: the
former’s criterion D requires settings to be conserved. The Mayor has a
particular concern about the proper interpretation of its policy; in this case the
146 By JLL
147 See CD A13, pages 34ff: the scheme’s daylight measure is that the BRE’s ADF test would be met in
the case of 88% of those tested – the overall % would be higher because of the proportionate number
of higher-up units if all the units were tested. See in particular §§6.8.11-6.8.14.
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Applicant is content to accept a degree of non-compliance due to harm being
caused to Kew Gardens and SotG, but obviously notes that the degree is very
small and the overall impact on significance is very small. But it is this non-
compliance in the LonP that needs to be weighed against those policies where
it is agreed there is full compliance.
6.82 Much the same applies to the HLP, albeit that HLP Policy CC3 speaks in terms of
not causing a significant adverse effect on assets. The Applicant’s evidence does
not indicate that such an effect would occur.
6.83 As for the emerging plans, all agree that relatively significant weight can be
given to the IPLP, due to the stage it has reached. The main points are:
6.83.1 continued very strong emphasis on making the best use of land (GG2),
housing delivery (GG4, H1, H4) and growing a good economy (GG5);
6.83.2 the OAs and the kind of intense housing and jobs yields that are needed within
them (SD1);
6.83.3 heritage protection (HC1) including protecting WHSs (HC2). The latter policy
largely replicates existing policy in adopted London Plan 7.10; the additions
are the words conserve, promote and enhance in respect of OUV. So, whilst
accepting that the Mayor has been criticised by ICOMOS and others in respect
of some WHS policy and/or decisions, the thrust of the new policy is broadly
the same as the old. It is notable that the new policy was not justified to the
IPLP examiners as contrary to the NPPF but exceptional for some reason. It is
a strong protection policy which is consistent with NPPF§196.
6.84 The balancing exercise under the IPLP is effectively the same as that for the
current version.
6.85 As for the LPR, this is unlikely to be submitted for examination before the
Summer of 2020148. It is agreed that little weight can be given to it, even less to
evidence base documents, particularly where they are the subject of objection.
The following points are of more importance in relation to the LPR:
6.85.1 it contains a commitment, which all agree is likely to remain in the plan, to
deliver the minimum 7,500 homes in the GWC OA in line with the IPLP. That
figure is not affected by the slight reduction in overall housing requirement in
LBH. The application accords with the overarching housing and AH ambitions of
the emerging plan and lies in the OA;
6.85.2 as already noted, little weight can be given to the specific allocations, to the
notional heights of buildings on them, etc. For instance, there is a proper
debate still to be had as to whether the Brentford East cluster should have a
taller element nearer the M4, or whether (as elsewhere – see for instance
Vauxhall/Nine Elms/Battersea) the cluster should be guided by good design on
each plot, rather than be made subject to notional AOD or storey height limits.
Experience elsewhere shows that they are out of date almost as soon as they
are adopted and serve very little if any positive function – but these are all
matters for the LPR Inspectors not for this application;
148 Mr Baker told the inquiry
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6.85.3 no weight should be given to the status or otherwise of the site in the LPR
– it is objected to, and given that LBH’s current view is that the Citroen site is
a redevelopment site with in principle the capacity for tall buildings, there is
nothing at this stage of things that prevents permission from being granted for
the application scheme;
6.85.4 these are important points because there is a theme in the LBH case based on
the non-compliance with the spot heights of buildings in the capacity study,
and the differences between the application and the emerging local plan. The
LPR is not referred to in the draft reasons for refusal and because of its very
limited weight, should not be used as a yardstick to test the application.
6.85.5 In particular, there is no prematurity objection from LBH which accepted that
the grant of permission would not prejudice the LPR. That was a very
important acknowledgement, because the SoS needs to know that the LPA
bringing forward its plan does not say that permission should be withheld on
the basis that these tall buildings would prejudice that plan, or in effect, that
the decision about the detail of built development on this site should be
postponed to the LPR EiP.
6.86 In summary, the application complies with the IPLP overall, albeit it does not
accord with Policy 7.10 and part of 7.8. It accords with the LPR’s housing and
AH policies and the thrust of the OA policy, but is again not in accordance with
heritage protection policy. It makes little difference in the overall analysis
because the plan is of limited weight.
Other Points Raised
6.87 The site lies has a Public transport accessibility level (PTAL) of 4 and 3 – the
note put into the Inquiry deals with that issue.
6.88 The Inspector has clarification now in writing149 on (1) the District Heating and
Air Quality issue, (2) the grant funding regime, which explains in part why the
Applicant’s ability to use the Mayor’s funding to deliver AH is limited by time and
site availability, and why the grant referable to this scheme is unlikely to be
recycled within the terms of the current deal to another of the Applicant’s sites.
It is certainly not possible to say that the grant would go to another LBH site if
not used here150.
6.89 The Inspector also has a note151 on Fire Safety and the Building Regulations
regime.
6.90 The nursery would be of some benefit to the local community, including the
emerging community in the major schemes in the area, and whether it is
subsidised or not, there is no indication that it will not fully meet a need in the
area – it is a benefit of modest weight in the balance.
6.91 There is assistance from the Mayor/TfL in relation to improvements at
Gunnersbury Station. The Chair of the WCGS152 is clearly a sceptic where the
TfL improvements programme is concerned, but the contributions sought by TfL
149 ID26
150 Ms Randell IC: if the grant wasn’t used it would be returned to the Government
151 Ibid
152 Mrs Rabouhans
https://www.gov.uk/planning-inspectorate 35
are justified and will be put towards CIL compliant projects. It is not accepted
that there would be any difficulty when the BFC is in use – it has multiple
access/egress, it would be used for a fraction of the year and there would be
special match-day provision in place. The BFC developers (which include the
club itself) have not objected to this scheme. The site is in a sustainable
location, close to transport and to the town centre, and its relationship with the
stadium is a plus, not a minus. It is part of a cluster of buildings around
important civic uses (the stadium, the leisure centre) and will play an important
role in marking the ways around the area.
Overall Conclusions
6.92 Even if one accepts the housing and AH need, why does that need have to be
met here, now, in this way, causing harm to the WHS and other assets? Not
quite the balanced way that NPPF§196 is framed, but another reasonable way,
perhaps to get to the heart of the planning balance in this case. The answer is
as follows:
6.92.1 the need for housing and AH is very large, pressing and will not go away. The
benefit of the scheme in this respect would be significant;
6.92.2 no one says that the need will be met by development on other sites: the
needs in London, in LBH and in the OA are too huge to make such a claim. It
would be contrary to the NPPF to approach this planning balance by thinking
that the housing needs could be met elsewhere;
6.92.3 the needs cannot be met by a scheme on the site that avoids the harm. To
reduce the scheme to the extent it becomes invisible from Kew in View 30
would lead to an unviable scheme which the evidence shows beyond doubt
would not be delivered;
6.92.4 lesser needs cannot be met by a lesser scheme on the site. The Notional
Reduced Scheme evidence also shows that as soon as one materially reduces
the overall quantum of housing, the site cannot viably support AH. Frankly, it
is an excellent outcome on a site like this to have 50% affordable with so
much London Affordable Rent but that outcome critically depends on the
Applicant as the developers with access to grant and the ability to deliver the
site with a 2.1% profit on GDV, and on the size of the scheme, since the
overall number of units allows cross subsidy. One cannot notionally dial down
or chip away at the unit numbers and end up with anything like 50% AH
because if you do, the delicate balance which allows this outcome to be
delivered almost immediately crashes to pieces;
6.92.5 the harm is to very important assets but is nowhere near as serious as RBGK,
HE and LBH are suggesting (bearing in mind they all say different things –
markedly different things in some cases) about the level of harm caused. It
arises because of the inevitable tension between the OA and the settings of the
assets. In the case of RBGK, there is at the very least the possibility of
mitigation which the Applicant now gather is being discussed, and are willing
to fund – if RBGK is willing to act in accordance with the MPlan and turn
towards constructive mitigation and away from outright and rather strident
opposition;
6.92.6 the balance favours meeting such important needs on this site, with the
scheme that can deliver them. Perhaps the impact at Kew can be screened;
https://www.gov.uk/planning-inspectorate 36
but even if not, it is a relatively minor impact even seen cumulatively, and the
SotG impact is also, properly understood, a limited one.
6.92.7 Given that LBH appears to accept the significant benefits of the scheme, it is a
little puzzling that they are not applying the approach that they expressly
endorse in their CA Appraisal for SotG:
However, it is important to note that this is a [CA] adjacent to an OA in a
World and Mega City (and the largest city in a wholly European country). There
will be inevitable tension between the areas, and pragmatic decision-making in
accordance with the NPPF... have had to be made and may be made again in
the future.
6.93 The word pragmatic sometimes carries the implication that the decision in
question is unprincipled, but by contrast here, the reference to the NPPF makes
it clear that what LBH means is that some harm to important designated assets
– some harm – is likely to be the result of a proper balance under NPPF§196153.
This is consistent with the pithy assessment reached by the CC Inspector,
rejecting Kew Garden’s argument that no further intrusion should be allowed
from Brentford: 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. That does not signify open season on Kew Gardens. It is a recognition that
some balance is inherently part of proper planning in London where there are
enormous issues of homelessness, community fragmentation, and progress to
address through proper housing and AH.
6.94 In this case, the balance154 is in favour of the grant of permission.
Additional Note
6.95 In its Note Addressing Further Matters155 the Applicant put forward an Indicative
Planting Scheme to screen out built development outside the boundary of the
WHS, possibly eliminating the impact of the Citroen development entirely. It
argued that this approach would accord with the MPlan. It offered a s106
obligation with a contribution towards the costs of implementing the scheme
and attached draft wording for a planning obligation156.
6.96 With regard to 1-4 CIW, it added a Note on relative viability explaining that:
- the existing use value is higher for the Citroen site;
- 1-4 CIW is a cleared site, whereas demolition and enabling works are required
on the Citroen site;
- the affordable housing tenure split differs as the rented affordable tenure units
for the Citroen development are all London Affordable Rent units (i.e. the most
153 The opening of Hounslow’s opening asserts that L&Q think that affordable housing trumps heritage.
This was quite unfair and obviously not recognising the full range of benefits that the scheme would
bring, and which Mr Baker for Hounslow accepts. The regeneration of the site, local design and
townscape points, and the value of market housing and economic benefits are also of considerable
importance to the case advanced by L&Q. The application depends on matters of judgement over which
parties disagree, that is all.
154 By which I include the clear justification for the harm to heritage assets, the overall development
plan assessment, and the NPPF§196 balance.
155 ID38 dated 6 February 2020
156 Subsequently submitted, as above, ID40
https://www.gov.uk/planning-inspectorate 37
affordable rented affordable tenures) while a significant proportion of the rented
affordable tenure units for 1-4 CIW are not London Affordable Rent Units.
Additional comments
6.97 The outcome of the CC High Court challenge does not affect the case put
forward by the Applicant.
6.98 With regard to the further delay to the IPLP, although it has not yet been
adopted, the issues which are subject to discussions are narrow. The particular
policy changes do not affect the issues raised in evidence, other than to
reinforce the importance and need for new homes in London. Great weight
should be attached to the policies that are not subject to the Direction which
includes, but is not limited to OAs, AH, Housing targets, Design, and Heritage.
6.99 With regard to the WHS MPlan, this lacks consistency particularly in how
development within and outside the Gardens is considered as well as the
approach to planting. The preparation of the plan has not been rigorous or
subject to proper consideration of comments received. It is contradictory and
includes objectives which cannot be achieved. The result is a MPlan which
cannot be considered to be sound.
6.100 Specifically, Appendix F is entitled Public Consultation and Inquiry Report but
also provides commentary on the Inspector's Report for the CC and evidence
presented at this Inquiry. The Inspector should disregard these sections as
they provide additional evidence to the Inquiry, which cannot be cross
examined or considered in the round, as well as a misrepresentation of the
position at the Inquiry and in the submitted evidence. The comments in
Appendix F are opinion rather than fact and should not be treated as evidence
to the Inquiry. Those parts of the MPlan should be disregarded.
6.101 The general approach, to reinstate the Gardens to a point some 100 years ago
when no development could be seen from within the Gardens is at odds with
the summary which identifies that it is critical to the conservation of the OUV
of the WHS that change be managed with a positive strategy for development.
This does not follow through in to the MPlan, which expects any development
visible from within the Gardens to automatically be harmful and to be refused
as a matter of principle. This approach is not consistent with the NPPF.
6.102 Section 3.3 of the MPlan is most concerning. In providing a summary of the
contribution that setting makes to the OUV, despite identifying detractors,
attention is drawn to the largely unbroken skyline surrounding the Gardens as
a significant contribution. Therefore, despite the presence of detractors, the
OUV is robust and can still be appreciated. On this basis, the presence of
detractors cannot be said to have a significant impact in undermining the OUV
of the WHS.
6.103 The MPlan highlights that the management of planting throughout the Gardens
forms a key element, which includes an active strategy157 to maintain the
157 Objective 13.4.4
https://www.gov.uk/planning-inspectorate 38
setting of the WHS through the management of vistas. For example158, where
RBGK seeks to maintain and strengthen tree belts and boundary screening, to
safeguard the setting, so that the urban area beyond the Gardens boundary is
not visible.
6.104 The removal of already-built developments and aircraft approaching London
Heathrow is not achievable. It is inconsistent to highlight modern buildings as
key detractors but ignore the Grade I listed Water Tower. RBGK seeks to
develop the Gardens with new structures while maintaining that visible
development outside, by others, should be prohibited. The Pagoda was
designed for panoramic views and is advertised as a visitor attraction.
Interpretation plaques help to understand the surrounding built development.
To suggest that views of taller development within the Gardens detracts, but
on the other hand actively encourage visitors to remind themselves of such
development is contradictory.
6.105 The final version of the MPlan has not been subject to rigorous review following
public consultation and is inconsistent in how it deals with development as well
as detracting factors. Importantly, RBGK seek to sterilise large parts of West
London by seeking to limit the development potential of sites. This lack of
rigour in the drafting of the MPlan illustrates that it should only be given
limited weight.
6.106 The Westferry quashing was on the basis of a specific error in relation to the
timing of the decision and how that appeared, rather than the matters to
which the parties drew the SoS’s attention. The reasons for the decision to
grant remain relevant despite the quashing, in line with the approach of the
Courts to quashed decisions.
7 The case for the Mayor of London as Local Planning Authority
Its case, with only minor adjustments, is as follows.
7.1 On 26 February 2018, the Mayor of London (the Mayor) directed that he would
become the LPA for the determination of the application which is now, in its
amended form, before this Inquiry. Following a hearing before the Mayor held on
20 July 2018, he resolved that planning permission should be granted for this
development. The Mayor did so having recognised that some harm would be
caused to the significance of various heritage assets. However, and
notwithstanding that harm, he concluded that the development would not conflict
with the development plan and that other material considerations supported its
approval through the grant of permission. In particular, the Mayor concluded that
the harm to the significance of heritage assets, which is a weighty consideration
in its own right, was outweighed by the public benefits which the scheme would
generate. Thus, the Mayor concluded, the SoS’s policy set out in the NPPF
concerning development affecting the historic environment was met.
158 In key policy action 13.5.9. Also, section 9.3.2 (and highlighted at objective 9.5.5) where Views,
vistas and setting are discussed. This states: Further strategic strengthening of the boundary plantings
and screening within the Gardens will also be required in the long term, to help offset the threat of ever
taller external building developments becoming visible within the landscape.
https://www.gov.uk/planning-inspectorate 39
7.2 The application for planning permission now falls to be determined by the SoS.
The Mayor however invites the SoS to reach the same decision as did he, and to
grant planning permission accordingly.
7.3 In these submissions, we address the following matters: impact on the historic
environment; application of heritage policies of the development plan, both
current and emerging; wider planning effects of the scheme; and overall planning
balance.
Impact of the proposed development on the historic environment.
7.4 The case for the Objectors is that six elements of the historic environment are
harmed, to varying degrees, by the proposed development. In respect of four of
those assets, the Mayor accepts there would be harm (albeit the extent of that
harm alleged by some of the Objectors is, we say, overstated). In respect of the
Kew Green CA and the listed buildings within and which face onto the Green
itself, we say no harm would arise.
7.5 The assessment of impact upon which the Mayor relies is set out in evidence159.
This assessment is comprehensive and thorough. We do not in these submissions
rehearse that evidence. However, we provide a summary of the Mayor’s case in
respect of each asset and, briefly, respond to the points made against it.
SotG Conservation Area (SotG CA)
7.6 It is common ground that there is no direct harm to the SotG CA nor is there
harm to views from the Strand itself, on the north side of the River Thames,
which lies in the SotG CA.
7.7 There is however, unsurprisingly, some impact on views towards the SotG CA
from the Thames towpath on the Richmond side of the River. It is common
ground that the extent of impact on the CA falls to be assessed by reference to
these views. There is no dispute that the views from the Richmond-side towpath
are important views from which the river frontage of the CA can be appreciated.
7.8 When proceeding along that towpath from the east, the SotG CA and the
proposed buildings will be seen, over some distance in the same view, as indeed
is demonstrated by View 23. However, views of the CA from the Richmond-side
towpath are experienced kinetically over a considerable distance. View 23 is not a
natural or designed stopping or indeed pausing point; as the viewer proceeds
westward, the relationship of the proposed development and the river frontage of
the CA becomes disjointed. Moreover, and importantly, the orthogonal view of
the important river frontage buildings, which are central to the character and
appearance of the CA, from the southern towpath would not include the proposed
buildings within the viewing plane. It is this orthogonal view which is described as
the most important (panoramic) view and a particularly vital view which is key to
the special interest of the CA in LBH’s SotG CA Appraisal160; that critical view is
illustrated by an image161. The application scheme would not be seen in that view
in a way which materially affects the appreciation of the CA, or the important
riverfront listed buildings.
159 Mr. Griffiths (CD M5)
160 CD G1A - November 2018
161 Ibid page 31
https://www.gov.uk/planning-inspectorate 40
7.9 Context, we submit, is of particular importance when considering the impact of
the proposed development in views from the Richmond-side of the Thames. Tall
buildings – both existing and emerging – are already present and visible in some
views towards the SotG CA from this towpath – most notably Rivers House, the
BSI building to the north of Gunnersbury Station, Vantage London and the
buildings comprising the BFC scheme. The approved Citadel scheme will also be
apparent in these views. Without the masking effect of the proposed
development, so too will be the development at 1-4, CIW which LBH has resolved
to approve162. As such, views of the CA from the Richmond side of the River
already has, as part of its context, existing and emerging tall buildings, located
both within the eastern part of what is to become the GWC OA and more widely.
The introduction of the proposed development into those views must be seen in
that context, as in the approach taken by the Mayor163. He accepts that the
proposed development would add to the impact of existing development on the
CA, but the effect upon it would not be significantly adverse or substantial.
7.10 Two other elements of context arise.
7.11 First, the application site lies within the GWC OA to be designated through the
IPLP164. As in the existing LonP, those parts of London which are identified as
OAs are intended to be the engines of growth to meet strategic, as well as local,
development needs; the IPLP provides165 that opportunity areas … all have the
potential to deliver a substantial amount of the new homes and jobs that
London needs. The IPLP provides, indicatively, that the OA should deliver 7,500
new homes and 14,000 new jobs. LBH has supported the allocation of the OA
through the IPLP, and the aspirations in terms of levels of growth for it. In its
LPR for the GWC (which reflects the OA designation)166, LBH seek to deliver
7,500 new homes as a minimum167 and, at 17,500, a greater number of new
jobs than the indicative capacity in the IPLP168. This level of growth will
necessarily generate substantial change in the GWC, including at and around
the application site. It is expected that OAs will continue to be the focus for tall
buildings, as was recognised by the Panel appointed by the SoS to examine the
soundness of the IPLP169; a conclusion which is hardly surprising given the scale
of development to be provided within these areas. LBH itself has recognised and
supports the introduction of tall buildings within the eastern part of the OA and
has confirmed that the application site is suitable for tall buildings170.
7.12 The LPR identifies the BFC East part of the OA as accommodating a cluster of
tall buildings within an area including the application site, as well as a series of
Focal Buildings, including a building of 61 m AOD at the B&Q site (on the north
side of the M4, adjacent to the Chiswick roundabout), of 66m AOD as CIW
(adjacent to the application site) and of 70m AOD at Chiswick Roundabout
(namely the site of the approved and implemented Citadel development, and of
162 CD D11
163 Mr. Griffiths’ evidence
164 CD D5A
165 at §2.0.4
166 CD D5
167 see policy GWC 2
168 see CD D5 p.29
169 CD C6 §304 p.67
170 CD F1 §3.11
https://www.gov.uk/planning-inspectorate 41
the CC proposal)171. A focal building is intended to be a distinct taller building
that emphasises special locations in prominent townscape views172. The delivery
of these focal buildings in the BFC East area is a requirement of policy P3(m)
Supporting development that responds to the area’s sensitive heritage locations
and important views by delivering …. The Council will of course have formulated
this policy for the OA and the identified heights with the historic environment
firmly in mind (as is clear from the Strategic Objectives173 and from Policy
P3(m) referred to above). The GWC LPR is emerging policy but,
notwithstanding, even in its current form as a proposed submission draft174, it
can be taken as setting parameters for development which LBH, as LPA, find
acceptable and considers to be sound.
7.13 This policy context is important in terms of the SotG CA and the assessment of
the impact of the proposed development upon it. If the objectives of policy for
the eastern part of the OA are to be met, as must be assumed will be the case,
then more buildings of scale and height will be introduced. These buildings will
change yet further the views towards the SotG CA from the Richmond-side
towpath and thus the relationship of the CA to the wider cityscape, as
experienced through those views. It is difficult, sensibly, to regard the heritage
impact of the proposed development as other than limited when it is considered,
as it must be, in its policy context.
7.14 Secondly, in terms of wider context, LBH’s assessment of the impact of wider
development proposals provides a useful touchstone when considering the
impact of what is proposed here and its acceptability. The relationship of the
approved Citadel development to the SotG CA is demonstrated in the version of
View 23 which shows cumulative impacts. It is notable that LBH considers that
that building does not dominate the setting of heritage assets175. Moreover, LBH
proposes now that a building on the same site as the Citadel should be a focal
building of 70m AOD176 and, as such, 11 m higher than the approved Citadel
building (which would stand at 59m177). If, as LBH have stated, the Citadel
building does not dominate the setting of the SotG CA, it is difficult, reasonably,
to consider that the Citroen proposal considered here would do so.
7.15 In conclusion, the Mayor accepts that the proposed development, to the extent
that it adds to an existing and emerging cluster of tall buildings, would cause
some harm to the significance of the SotG CA as a result of its relationship to
the CA in views from the south side of the River. This harm is less than
substantial and sits at the middle of that range; in this assessment, the Mayor
and LBH are at one. It is however important to see these views and the CA as a
whole in their proper context. The CA has now a clear relationship to an existing
cityscape which is much changed from the historic position and which, in the
fulfilment of planning policy, is set, with the fulsome support of the Council, to
change further as a result of regeneration to meet strategic development needs
within a soon to be confirmed OA. When considered properly and in this context,
171 see CD D5 policy P3 at pp.107-108
172 CD D7 §7.7.5 p138
173 p.31
174 CD D5 p.9
175 see CD I4 §5.95 p.29 (Chiswick Curve Inspector’s Report)
176 CD D5 policy P2(m)(iii)
177 CD I4 §5.95
https://www.gov.uk/planning-inspectorate 42
the harm arising from the Citroen scheme must not be overstated; to categorise
the harm as at the higher end of less than substantial, as HE invites the SoS to
do, would be such an overstatement.
7.16 Nonetheless the harm which the Mayor has identified to the significance of the
SotG CA must be given significant weight and must thus be considered
alongside public benefits as part of a planning balance. We return to this below.
Listed Buildings within SotG CA
7.17 There will be some impact on views towards, and thereby on the appreciation of
the significance, of some of the riverside listed buildings within the CA. As with
the CA as a whole this impact will largely be by reference to views to the north
from the southern towpath. Any impact which is adverse is limited to the
western-most within the series of listed building along the Strand, namely
Nos. 64-71, and concerns largely their group value.
7.18 The Mayor considers that the harm to the significance of the listed buildings
along the Strand is less than substantial, as indeed do all other main parties.
The Mayor’s assessment is that this harm is at the lower level within the less
than substantial gradation, whereas LBH and HE in particular consider that the
harm to be within the middle of that gradation. They reach that conclusion by
drawing no distinction between the impact of the proposed development on the
significance of the CA and the impact on the significance of the listed buildings.
That is, we submit, the wrong approach.
7.19 The listed buildings, as entities in their own right and as part of a group, can be
appreciated from the SotG itself. Indeed, it is from this location that the detailed
architectural features of their principal elevations – including porticos, etc. - are
best appreciated, as indeed LBH178, accepted. This view, and the opportunity it
presents, will remain unaffected by the proposed development.
7.20 The listed buildings as a group can plainly be viewed and appreciated over the
River. These views, in the context of appreciation of the CA, have already been
addressed. As with the CA, it is notable that it is the orthogonal view of the
buildings that the SotG CA Appraisal179 identifies as being most important and
particularly vital and key to the special interest of the Conservation Area180. This
view is essentially unaffected by the proposed development.
7.21 Given that the closer views of the listed buildings, from where their architectural
detailing is best appreciated, will remain unaffected and given the lack of
material impact on what is acknowledged in the CA Appraisal as the most
important view of the buildings as a group, it is submitted that the Mayor is
correct in identifying the impact of the proposed development on the
significance of these buildings as being at the lower end of the gradation of less
than substantial.
The Orangery, Kew Gardens
178 Dr. Scott
179 CD G1A
180 Ibid §7.3 p.31
https://www.gov.uk/planning-inspectorate 43
7.22 It is common ground that the impact of the proposed development on the
Grade I listed Orangery arises from impact on intermediate distance views of
the building from within Kew Gardens.
7.23 It is common ground that the impact is less than substantial. The issue lies in
where within the less than substantial range the impact falls.
7.24 The affected views of the listed Orangery are, on any basis, intermediate views
of limited extent and can be appreciated only from a small area - approximately
100m2 – to the south west on the Great Lawn. The most affected view being
View 30, which is addressed in the HTVIA.
7.25 The view of the Orangery from the Great Lawn represented by View 30 is not an
intentionally or designed view, but, as demonstrated181, was, at its highest,
intended to be a view filtered by a diffuse belt of trees182. The aerial
photography from the 1920s demonstrates that in more recent times the view
has been largely obscured. It has arisen, in its present form and indeed in any
meaningful form, following tree removal or loss in the relatively recent past.
View 30 is, it is submitted, far less central to the significance of the Orangery,
and the appreciation of it, than is the view from the Great Lawn at positions
closer to the asset to the west, south and east, from the Broad Walk and from
the Hive. From these viewpoints, there will be no discernible impact arising from
the proposed development.
7.26 Furthermore, View 30 is too far from the Orangery itself to allow appreciation of
its architectural details.
7.27 Given the limited extent of the view, and its historic context, it was correct not
to have overstated its importance to the appreciation of the significance of the
asset.
7.28 The impact on the view and thus on the significance of the Orangery must
however have regard to the existing context. Within views of the Orangery from
the Great Lawn, the Haverfield Towers and the recently consented BFC
development are experienced. As such, the existence of a wider cityscape now
forms part of the setting of the asset: the application scheme will not therefore
be a novel introduction in that respect. This context cannot be ignored. Plainly,
the experience of the asset would be different if that existing development,
which no one suggests is positive, were absent. But the existing development is
there, and it does contribute to how the asset is experienced now and therefore
its significance. However this context is approached, the ultimate test must be
whether the application scheme itself adversely affects the significance of the
asset, as it is now experienced, so as to be unacceptable in planning terms.
7.29 The scheme does introduce a further element into the skyline above the
Orangery from View 30 and, notwithstanding the high quality of the design
proposed, it will cause some harm to the appreciation of its significance.
However, given extent and the context, that harm is less than substantial and is
very limited: the Mayor was correct in his assessment in this respect.
Royal Botanic Gardens Kew WHS, Kew Gardens RPG and Kew Gardens CA
181 By Mr. Griffiths
182 see C. Griffiths’ proof §4.40 (CD M5)
https://www.gov.uk/planning-inspectorate 44
7.30 The focus of assessment, so far as these largely overlapping designations are
concerned, has been on that of the highest heritage status, namely the WHS.
7.31 Following the approach taken in the determination of the CC appeal, the
relationship of the proposed development to the significance of the WHS and its
OUV was assessed again for the Mayor183, who identified some harm. He has
approached the assessment on the basis of the guidance set out in the Mayor’s
SPG London’s [WHS]s – Guidance on Settings184. He was plainly right to do so.
He has concluded that the proposed development will generate some harm to
those elements of setting derived from context and views185. However, there are
some positives in terms of impact on character of the setting, through the
introduction of a high-quality development in an area of the setting which is
positively planned to accommodate substantial change186, and through some
biodiversity enhancements, albeit he identified the latter as negligible in terms
of value187. In terms of impact on OUV, a small adverse impact arises in respect
of two attributes, namely the wider Arcadian landscape and the iconic
glasshouses. In both cases this impact arises as a result of the visibility of the
Citroen development from within the RBG. Overall, the Mayor accepts some
harm will arise to the WHS and its OUV188. This harm is considered less than
substantial (a conclusion with which all agree) and the Mayor considers it to be
at the lowest level within the gradation. Great weight should be given to this
impact, in accordance with the law and in light of the importance of the asset.
Nonetheless, it falls to be weighed in the planning balance, which is addressed
later.
7.32 We make two further points at this stage.
7.33 First, RBG Kew has sought to find fault with the approach189. As is demonstrably
the case, he has followed the relevant guidance, in particular the Mayor’s SPG,
and reached a considered and well-reasoned set of conclusions. In so far as he
is criticised for referring to impacts as negligible RBG Kew again overlook the
fact that he expressly identifies negligible impact as amounting nonetheless to
harm190. As he has explained, his adjectival use of the term negligible was not
to discount harm but to qualify and to quantify that harm as being of the lowest
level. He has not therefore offended the legal principle191. Indeed, far from
discounting negligible harm, he has had regard to it, with the negligible level of
harm qualifying the weight to be attached to the harm192. RBG Kew’s criticism of
the witness, and therefore of the Mayor, is we submit unjustified and unworthy.
183 by Mr. Griffiths
184 CD C16
185 see proof §5.43(1) and (5)
186 §5.43(2)
187 §5.43(3) (a qualification which RBG Kew consistently seem to overlook)
188 RBG Kew in its closing submissions (ID 32 §90) assert Mr. Griffiths’ evidence to be that the harm to
the WHS is outweighed by ecological benefits. That assertion is incorrect and reveals a failure properly to
record, or to understand, Mr.Griffiths’ written (proof CD M5 §5.46-5.47 and p.144) and oral evidence. As
we have submitted, Mr.Griffiths concluded that there would be some residual harm to the significance of
the WHS and its OUV but at a very low level.
189 Mr. Griffiths’
190 see e.g. his proof (CD M5) paras.5.44 and p.144
191 in R (James Hall and Co.) v Bradford MBC (2019) EWHC 2899 (Admin) CD J9 at §34
192 Ibid, as the Deputy Judge expressly advised in that case
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7.34 Secondly, RBG Kew refer to and rely upon the emerging MPlan [now adopted –
see additional note below]. The emerging document does not require or even
suggest a different outcome with regard to the proposed development than does
application of adopted and well-established planning policy. The assessment
within it of the potential impact of development on the Citroen site193 adds
nothing194 and, as Mr. Croft accepted, it forms no part or purpose of this draft
management plan to assess the extent of impact or to carry out a planning
balance. To the extent that the draft document seeks to resist any harmful
impact (even less than substantial harm) to the WHS195, it is not consistent with
national, strategic or indeed local planning policy and can be given no weight.
Kew Green CA and listed buildings
7.35 The Mayor does not accept that any adverse impact will be caused to the
significance of the Kew Green CA or any listed building within it.
7.36 Any impact of the proposed development on the significance of the Kew Green
CA will be as a result of effect on longer range views from the south side of Kew
Green looking north. Located some half a mile to the north of Kew Green, the
application scheme will be glimpsed in views above existing buildings on the
edge of both the eastern and western parts of the Green (as is demonstrated
from Views 20 and 22). These glimpsed views are seen in the context of other
development of scale within Brentford, including the consented and emerging
BFC scheme. The wider cityscape to the north of the Kew Green CA in Brentford
is already appreciated in these views. When consideration is given, as it must
be, to the architectural treatment of proposed development, the effect on the
significance of the Kew Green CA will be neutral.
7.37 For largely the self-same reasons, the impact of the proposed development in
views from the south towards the listed buildings which enclose the Green on
the north side is negligible and the significance of these listed buildings will not
be harmed.
Other heritage-related matters
7.38 Considerable energy has been expended by Objectors at this Inquiry in seeking
to undermine the thoroughness of the Mayor’s consideration of the impact of
the scheme on the historic environment. They do so, it is to be assumed, to
seek to diminish the weight to be given to the Mayor’s support for the proposal.
These criticisms are without foundation.
7.39 The Mayor, when considering the application for planning permission, had the
benefit of advice from a specialist heritage officer196. It has not and could not be
suggested that she was not suitably qualified to give advice to the Mayor on
heritage matters. That the Mayor took internal rather than external advice on
193 CD G21 §13.3.2 p.73
194 The reference in RBG Kew’s submissions (ID 32) at §107(10) and Fn.120 is, it is submitted, not
correct. Para.13.3.2 of the draft WHS MP (CD G21) refers to several schemes having the potential to
negatively affect the setting of the WHS. No finding of actual adverse harm is expressed in respect of the
Citroen development (unlike for example the assessment of the Chiswick Curve and the Albany Riverside
development, where very significant and significant impact, respectively would, it is stated in the draft
MP, arise).
195 see §13.3.4 p.73
196 Ms. Goldstein
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heritage matters197 is not a proper basis for any criticism. Furthermore, and as a
matter fact, it is incorrect to assert, as LBH did in cross-examination198, that her
involvement was limited in its extent to an email of advice199. Rather, as
explained200, several meetings took place at officer level to consider and
scrutinise the scheme, which the specialist heritage officer attended and in
which she participated; she was involved in preparation of the representation
hearing report201 and the advice set out in that report concerning impact on the
historic environment reflects her advice and professional judgment. She
attended the Mayor’s briefing meeting held before the representation hearing,
as well as the two site visits which the Mayor carried out. More generally, the
Mayor had the benefit of a lengthy and comprehensive report, prepared by
officers, before the representation hearing, At the hearing the Mayor received
an oral and visual presentation202, which included several of the views now
before the Inquiry. He heard oral submissions from LBH, HE and RBG Kew,
amongst others, and both had and took the opportunity to question those who
appeared. He carried out two site visits, again accompanied by LBH and HE and,
on his visit to Kew Gardens, by RBG Kew. It cannot therefore be claimed that
the Mayor was not fully informed of all relevant issues. It is also of note that,
following the CC decision and Mr. Griffiths’ advice, the Mayor was presented
with a further report which reconsidered impact on the WHS (and corresponding
area wide heritage designations), and the Mayor was invited to reconsider and
reaffirm his view that planning permission should be granted, which he did. For
the avoidance of doubt, neither the Mayor nor his advisers accepted the
conclusions203 set out in the HTVIA. That the Mayor and his officers identified
harm to heritage assets demonstrates that this is the case204,205.
7.40 The assertion of RBG Kew that the Mayor’s assessment was flawed206 is not
remotely supported by any fair consideration of the evidence. The Mayor’s
assessment of the scheme was thorough and comprehensive. His support for
the scheme should be considered in this context.
Application of heritage policies of the development plan, current and emerging
7.41 The Mayor considers that there is some harm to the significance of four heritage
assets or groups of assets. It is common ground that the planning balance
provided for in NPPF§196 is engaged and this will be addressed later.
197 a criticism made by RBG Kew in its submissions (ID 32 §107(1)
198 of Ms. Randall (and as repeated in not dissimilar terms by RBG Kew in its closing submissions
ID 32 §107(4)
199 dated 24 May 2018 (ID 21)
200 By Ms. Randall
201 CD H3
202 from Ms. Randall
203 of JLL
204 JLL’s images set out in the HTVIA were referred to and relied on by the Mayor and his advisers in
assessing the Citroen scheme. No one has suggested that these images are defective. The reference made
and reliance placed upon them is unobjectionable therefore.
205 LBH is wrong to assert (ID35 §§29 and 36) that when directing that he should become local planning
authority he considered that the harm to heritage assets was not outweighed by public benefits. The
Mayor’s Stage 1 advice (CD H1) at p.1 (summary), §43 (p.9) and §55 (p.11) make it clear that this is
not the case and the advice was quite to the contrary. See also Ms. Randall’s evidence (xx and re-
examination) in this respect.
206 ID 32 §§107-108
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7.42 With regard to the development plan, HLP Policy CC4(l) provides that it must be
demonstrated that where a development proposal will lead to less than
substantial harm to the significance of a designated heritage asset, this harm
will be outweighed by the public benefits of the proposal …. Policy CC4 therefore
reflects expressly the current test set out in the NPPF and this will be addressed
below.
7.43 With regard to the LonP, Policies 7.8 and 7.10 require development to conserve
heritage assets207. Both policies have been reviewed to secure their conformity
with the NPPF (about which, see below). An issue has arisen as to the
construction of these policies. The Objectors, and in particular RBG Kew and HE,
suggest that any harm to a heritage asset, however modest that level of harm
may be, amounts to a failure to conserve the asset and would thereby generate
a policy conflict. That, it is submitted, cannot be correct. Construction of policy
is a matter of law, of course, and the exercise of construction involves
consideration of context. Here, the context includes the NPPF which, as sound
policies, 7.8 and 7.10 must be deemed to conform with. The term conserve has
a particular meaning in policy terms; that is set out in the Glossary to the
NPPF208; conservation means the process of maintaining and managing change
to a heritage asset in a way which sustains, and where appropriate, enhances
its significance. As such, conservation does not require no change, nor does it
require no harm; what is required is that significance is sustained. Whether
significance is sustained is a matter of judgement and, as an outcome, can be
achieved with some level of harm and particularly where, as here, the level of
harm to significance is at a low level. As such, the Objectors here are wrong to
construe any harm as amounting to a failure to conserve an asset thereby
generating a policy conflict209.
7.44 With regard specifically to policy 7.10(B), the reference to there being no
adverse impact on [WHS]s or their settings must be considered and construed
in the context of 7.10(A) which refers to conservation as well as in the context
of the reference within (B) to the objective being in particular to avoid
compromising the viewers ability to appreciate OUV. The opening sentence of
policy 7.10(B) must be considered therefore in that context and is not absolute
in and of itself.
7.45 Moreover, the result of the Objector’s construction is that a conflict with
development plan policy would arise whatever the level of harm. Such an
outcome is flatly inconsistent with the NPPF, which does not condemn any harm
but requires a more balanced approach. Given that the LonP can be deemed to
be NPPF-compliant210 such a construction is unlikely. If conservation is taken to
mean what the NPPF provides this conflict is avoided.
7.46 For completeness, the references to conservation in the IPLP at policies HC1 and
HC2 bear the meaning referred to above, as is clear from the Glossary.
207 see 7.8(C) and (D) and 7.10(A)
208 and is now included in the Glossary on the IPLP (CD C5A p.581)
209 RBG Kew’s assertion put in cross examination of Mr. Griffiths that the decision in the Westferry
Printworks appeal (CD D10) involved a construction of policies 7.8 and 7.10 which accorded with that
which it advances is not correct. The SoS in Westferry concluded that a policy conflict arose by reason of
the particular level of harm that arose in that case. It does not follow that a conflict would arise as a
matter of principle whatever the level of harm to heritage interests.
210 following the Revised Minor Early Alterations (REMA) of 2013 (see CD C5 §0.16B)
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7.47 It is submitted therefore that, given the low level of harm to heritage assets
which would arise, no conflict with policies 7.8 and 7.10 of the current London
Plan and HC1 and HC2 of the IPLP arises.
7.48 However, in the ultimate reckoning, this issue becomes rather academic.
Whatever the position in terms of the construction and application of the policies
of the development plan concerning impact on heritage assets, the NPPF is a
material consideration in the determination of the application. NPPF§196 sets
out guidance on how impact on heritage assets should be considered in the
planning balance. No participant suggests that NPPF§196 does not fall to be
applied and, if as a result of its application, the balance favours the grant of
planning permission then that outcome could and ordinarily should outweigh
any development plan conflict which might arise. Thus, whether or not a conflict
arises in respect of policies 7.8 or 7.10 of the current London Plan, the
NPPF§196 balance must be struck. It is notable that LBH211 confirmed that, in
terms of impact on heritage assets, the operation of the development plan
would not generate a different outcome from the NPPF; we agree.
7.49 With regard to the IPLP, it is a matter of record that the Mayor intends to
strengthen policies concerning impact on WHSs in particular. This has been
acknowledged by the Panel examining the emerging Plan212. Policy HC2 does so
by introducing a requirement for heritage impact assessments. The reasoned
justification to the new policy is also more expansive as compared to Policy 7.10
of the current plan. However, what Policy HC2 does not do is to preclude or
create a presumption against development which causes harm to the
significance of a WHS or its OUV regardless of the degree of such harm. Indeed,
such a policy approach would not be consistent with the NPPF and, as a
development plan policy, would not be sound213.
Wider planning effects of the scheme
7.50 The development proposes tall buildings on the application site. As discussed
above, following formal publication of the IPLP, the site will lie within the OA,
where tall buildings are expected. It is common ground between the Applicant,
the Mayor and LBH that the principle of tall buildings on the site is acceptable
having regard to policies 7.7 of the London Plan and CC3 the LBH Local Plan214.
If, on the basis of the Mayor’s case set out above, no unacceptable harm to the
significance of heritage assets arises, then no conflict with Policy 7.7 of the LonP
or CC3 of the HLP would arise; the former requires particular consideration to
be given to impact on heritage assets (see 7.7(E)) and the latter at (d) seeks to
avoid significant adverse impact on a range of heritage assets. Policy D9(C)(d)
of the IPLP comprises one element of a range of criteria which are to be
addressed and cannot, consistently with the new Plan as a whole, and with HC2
in particular, preclude outright any adverse effect on a WHS as a result of a
proposal for a tall building.
7.51 Thus, if the harm to heritage assets is deemed acceptable, no conflict with tall
building policies arises.
211 Mr.Baker in evidence
212 CD C6 §330
213 applying the test for soundness set out at §35(d)
214 CD F1 §3.11
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7.52 No criticism has been levelled at the layout or design quality of the scheme. The
Mayor considers the scheme to have been carefully and considerately
assembled, and to be of high quality. LBH215 expressed some misgivings around
the quality of daylight and sunlight to be enjoyed by reference to the BRE
Guidance, but not of itself so as to condemn the scheme. The levels of daylight
and sunlight achieved are entirely consistent with that which can be expected of
an efficient form of development on a brownfield site in an urban location.
Overall planning balance
7.53 It is common ground between all parties that NPPF§196 is engaged. The
balance is between the harm to the significance of heritage assets, which all
agree is less than substantial but at varying degrees, against public benefits.
7.54 It is common ground, unsurprisingly, that public benefit would be generated
through the Citroen scheme.
7.55 The benefits of the scheme are well rehearsed in the evidence. We will not
repeat that evidence here. There are however some particular points which
warrant express reference at this point.
7.56 First, there is the contribution to the delivery of new homes: 441 new homes,
included within which are 218 homes at affordable tenure. The Mayor and LBH
recognised this as a substantial public benefit which contributes to the
achievement of local policies for the OA, the strategic level need for new homes
for London and the SoS’s policy objective of boosting significantly the supply of
homes216. This remains the case notwithstanding that LBH can demonstrate a
five-year supply of deliverable sites for housing and has over the past few years
met, indeed exceeded to a degree, its current London Plan housing target217;
that said the Borough has not performed so well in terms of meeting targets for
affordable homes. Moreover, housing need for London, and hence targets for
delivery, are set to increase substantially through the IPLP218. Further, and as
the CC Inspector recognised, London is a single housing market area and is
under extreme pressure219. As such, the contribution of the Citroen scheme to
London-wide housing needs, especially through development in an opportunity
area, must be given significant weight. Notably, the significantly increased
housing targets to be included in the IPLP are much more certain now than was
the case at the CC decision and the decision letter220 must now be considered in
that updated context.
7.57 Second, the delivery of the substantial number of new homes will take place on
a brownfield site in a highly sustainable location, eliminating a highly
unsustainable use, namely a car showroom. The opportunity presented by the
site has been optimised through the form and scale of development proposed.
Again, this is a substantial benefit which advances planning policy at all levels.
215 Mr. Baker
216 NPPG §59
217 K. Randall proof (CD M4) §9.11
218 CD M4 §9.12 (as amended)
219 CD I4 §12.152 p.146
220 Ibid §35
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7.58 Third, the development is of high quality in urban design terms and will deliver
much improved connectivity across the site to the benefit of the wider area, as
well as a generous and well-appointed public realm, including a new public
square. This is also a substantial public benefit, advancing as it does the
objectives of LonP Policy 3.5 and IPLP Policies D4 and D9.
7.59 Fourth, the nursery proposed will benefit existing and new residents and a net
increase in jobs will be generated, which are again positive attributes of the
scheme.
7.60 These outputs of the scheme are, it is submitted, substantial and significant
public benefits which clearly outweigh, the harm to heritage assets which arises.
7.61 Two further points need to be addressed.
7.62 First, outputs which meet policy requirements may, and here should, be
recognised as benefits of a scheme. That the delivery of AH may be a
requirement of policy does not, it is submitted, diminish the benefit of the
delivery of such housing in meeting identified needs. This is particularly the case
given the acute and widely recognised need for more affordable homes in
London. Significant weight should be given to the AH and the general market to
be secured and delivered here.
7.63 Secondly, there is simply no basis to assert or to assume that the same or
similar public benefits will be delivered if the application is refused, with the
expectation that a smaller development, and in particular a development with a
reduced height, will come forward in its wake. First, such a reduced scheme
cannot plainly have the same benefits in terms of quantum of development or
new homes as what is now proposed. Secondly, there is no evidential basis
whatsoever to assume that an alternative scheme could be viable or would
come forward. The Applicant’s evidence221 suggests that that would not be the
case. No other party to the Inquiry has produced evidence to demonstrate or
even to suggest a viable alternative development. Moreover, it cannot
reasonably be assumed, simply because a particular form of development has
been the subject of an application for planning permission on a neighbouring
site, namely 1-4 CIW, that a similar scale and quantum of development would
be viable and could be expected to be delivered on the application site. There is
nothing to suggest that the same or similar viability inputs exist as between the
two sites; indeed, it is commonly the case that matters such as benchmark land
value differ radically between proximate sites by reason, for example, of the
existing uses and the values attributable to them222. There is simply no credible
or sensible basis to forgo the very significant public benefits which this scheme
would deliver on the unsubstantiated assumption that an alternative and smaller
development can be expected to emerge.
7.64 We invite the SoS to strike the NPPF§196 balance in the same way as did the
Mayor and to conclude that the harm to the historic environment is outweighed.
7.65 The Mayor does not accept that a conflict with the development plan arises nor
even with the heritage policies of the plan if taken alone. But if we are wrong,
221 at ID 26
222 a matter now addressed in ID40
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we submit that the balance required under s.38(6) of the Planning and
Compulsory Purchase Act 2004 (P&CP) Act should be struck on the same basis
and in the same way.
7.66 We therefore invite the SoS to grant planning permission. The Inspector is
requested to recommend accordingly.
Additional note
7.67 Following the SoS’s consideration of the IPLP, the policies within this that are
not subject to a Direction should now carry significant weight. Those that are
carry less weight. The Directions do not affect the policies referred to as part of
the Mayor’s case, or more generally by others, at the public inquiry.
7.68 Following adoption of the Kew MPlan, the Mayor commented that he does not
consider that new Appendix F fully records or summarises the evidence given at
this Inquiry.
8 The case for the London Borough of Hounslow
Its case, with only minor adjustments, is as follows.
8.1 The development of the scheme by the Applicant and their strategic partner (the
Mayor) shows that their approach is based on the proposition that the delivery of
AH trumps the protection of the country’s historic environment. LBH recognises
that growth and heritage are compatible. It accepts the principle of tall building
development in the LPR for the GWC, which aims for far-reaching and fast-paced
growth whilst being sympathetic to London’s heritage.
8.2 The proposals conflict with HLP and LonP policies223 to protect the historic
environment. These are fundamental to the development plan. This amounts to
conflict with the development plan overall. LBH’s case is that the proposed
development would conflict with HLP Policies CC1, CC2, CC3, CC4, and LonP
Policies 7.4, 7.6, 7.7, 7.8 and 7.10. It emphasised HLP Policies CC3 (tall
buildings) and CC4 (heritage); and LonP Policies 7.7 (tall buildings) 7.8 (heritage)
and 7.10 (WHSs). The IPLP beefs up London’s heritage policies. In particular,
Policy D9 (the successor to 7.7) includes stronger policies at C(1)(d) and (e).
HC2 (the successor to 7.10) is strengthened by the wording that development
proposals in WHSs should conserve, promote and enhance their OUV. The
supporting text to HC2224 emphasises the commitment of the Government to
protect and conserve the OUV of WHSs. Each of emerging policies D9, HC1 and
HC2 introduce the importance of cumulative impacts.
8.3 The Richmond LP is not part of the development plan but RBG Kew is within
Richmond, and LB Richmond have objected. Its Policy LP6225 is aimed at
protecting, conserving, promoting, and where appropriate enhancing, the WHS,
its BZ, and its wider setting. That policy is a material consideration even if the
same protection appears in LBH’s policies.
223 Identified in draft Reason for Refusal (RfR) as HLP Policies CC1, CC2, CC3, CC4 and London Plan223
Policies 7.4, 7.6, 7.7 and 7.8. Policy 7.10 was omitted in error and is also a policy relied on by LBH.
224 Intend to Publish version of the new London Plan (CD C05A), §7.2.1.
225 SB Proof (CD M06), Appendix 1.
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8.4 National planning policy identifies that226:
o Heritage assets are an irreplaceable resource and should be conserved in a
manner appropriate to their significance;
o Great weight should be given to their conservation, and the more important the
asset, the greater the weight;
o Any harm to the significance of a designated heritage asset should require clear
and convincing justification;
o Less than substantial harm to the significance of a designated heritage asset
should be weighed against the public benefits of the proposal;
o Cases of substantial harm will be rare, requiring that a high bar be met227. Harm
can be both serious and less than substantial, and it is well-established that an
allegation of less than substantial harm does not amount to a less than
substantial objection228;
o To properly weigh less than substantial harm in the balance, the extent of harm
should be clearly articulated229; in practice, this means that heritage experts
should identify where the harm lies within a spectrum of less than substantial
harm.
8.5 In this case, in addition to a WHS and three CAs, the proposals would impact a
host of listed buildings including those at Grade I and II*. These impacts require
the SoS to have special regard to the desirability of preserving their special
historic and/or architectural interest and their settings.
8.6 The multi-decorated practice scheme architects worked as part of a team which
included the developer and its development and project managers230 who
provided any heritage advice up until the Inquiry. No written brief to the
architects has been provided to the Inquiry. However, the brief is accurately
reflected in the general priorities set out in evidence231. Of 13 general priorities
set out by RB232, the language used exposes the true position. 12 of the 13
priorities are described in clear, strong terms (to provide, to maximise, to
integrate, to address, to design and deliver). The exception is the reference to
the wider heritage context: to take due consideration of the impact of buildings
from longer views, including the heritage assets identified by [HE]. This is not a
semantic point. The weaker language for heritage clearly denotes that this was
regarded as a less pressing constraint than other factors233. The heritage
advice234 was that there would be no harm to the Kew Gardens WHS, to the
Grade I listed Orangery, to the SotG CA and listed buildings or to Kew Green CA
and listed buildings.
8.7 In heritage terms, the scheme was only as good as the heritage advice235. Since
that was, to put it bluntly, that the architects did not need to worry about the
226 NPPF (CD C01), §184, 193, 194 and 196
227 PPG on the Historic Environment (CD C02), §018, Reference ID: 18a-018-20190723.
228 East Northamptonshire DC v SSCLG and Barnwell Manor [2014] EWCA Civ 137 [2015] 1 WLR 4
(CD J02).
229 PPG on the Historic Environment (CD C02), §018, Reference ID: 18a-018-20190723.
230 JLL. See RB Proof (CD M01), §§4.3-4.4.
231 RB Proof (CD M01), §4.6 and XX of RB by LBH.
232 RB confirmed in XX by LBH that his written evidence including this section had gone through various
iterations, was approved by the team, and was carefully-worded.
233 See the evidence in §22 i-iv.
234 See Heritage Statement of October 2017 (CD A12).
235 XX of RB by LBH.
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wider heritage context, it is not surprising that this was treated by them as a
marginal priority and a barely troublesome constraint. The language chosen236
accurately reflected the position as he saw it. The language was consistent and
deliberate. Even the Applicant’s heritage witness took the view that the advice
was wrong. That wrong advice infected the scheme and is at the heart of its
failure.
8.8 The Mayor was preoccupied with maximising the delivery of AH at all costs. At
Stage 1237, when the proposal was 40% AH, he concluded on heritage that less
than substantial harm would only be caused to the significance of SotG CA and
listed buildings. No harm was identified at that stage to the WHS238, the
Orangery, the Kew Green CA or listed buildings within it. He was not satisfied
with the level of AH and concluded that the heritage harm (to the SotG CA and
listed buildings) outweighed the public benefits. However, the Mayor revealed his
priorities that the less than substantial harm… would be outweighed by the public
benefits of the scheme239, if the AH provision was resolved (i.e. increased).
8.9 The note setting out the heritage advice the Mayor had relied on240 shows that
the first time he sought expertise was in April 2018, three months after Stage 1.
At Stage 2241, he removed LBH as the LPA to determine it himself. He paid lip
service to the fact that heritage impact would be fully considered242, but the
driving force was to maximise AH. Indeed, at the time the Mayor was calling the
matter in, he had still not taken any specialist heritage advice (internally or
externally). He had already discussed increasing the height of the towers for
more AH before he appointed his internal heritage adviser243 and so was already
encouraging further height increases (for more AH) before taking heritage advice.
Then, at the same time as acknowledging additional harm to the Orangery244, as
a result of the increase in height and an additional 50 units of AH (218 rather
than 168), on the NPPF§196 balancing exercise, the Mayor resolved to grant
planning permission.
8.10 In November 2019, after independent heritage advice, the Mayor
acknowledged245 that harm would be caused to the WHS, (including the Grade 1
RPG and the Kew Gardens CA), but determined that this did not alter the
planning balance. Therefore, at Stage 1, harm to the SotG (CA and listed
buildings) outweighed benefits including 168 units of AH, but despite additional
harm to the Orangery and WHS, the increase by 50 affordable units still swung
the balance from the Stage 1 position. This demonstrates that the Mayor did not
regard heritage as a matter of great weight. If the Application hadn’t been
called in, he would have granted planning permission without obtaining any
independent heritage advice – despite LBH’s recommendation246 – and on the
236 by RB, in his list of priorities and list of constraints,
237 GLA Stage 1 Response (CD H01).
238 or the Kew RPG or CA
239 GLA Stage 1 Response (CD H01), §55.
240 GLA note on specialist heritage involvement (ID 21).
241 GLA Stage 2 Response (CD H02) on 26 February 2018.
242 Ibid §44.
243 Lara Goldstein on 11 April 2018. See GLA note on specialist heritage involvement (ID 21), §6. She did
not visit the site until 24 April 2018, and she did not report her findings until her email of 24 May 2018
244 GLA Hearing Report Addendum (CD H04), §232.
245 Mayor of London Report Addendum (CD H06).
246 LBH’s consultation response (CD B04), §7.37.
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basis only of a brief internal email and informal chats between the Mayor’s
internal heritage adviser247 and its witness at the Inquiry248. But for the SoS’s
intervention, harm would have been caused to the WHS without the Mayor even
acknowledging it. Moreover, the Mayor has maintained his position at the very
same time as strengthening his own policies to protect heritage assets,
especially the WHS, and been an active member of the Steering Group
responsible for strengthening the protection of the WHS through the draft
MPlan.
8.11 The evidence for LBH in respect of Kew Gardens was sensible, measured and
credible.
This is summarised in paragraphs 51-76. It largely echoes that of RBGK and HE
below, so I do not repeat it here.
8.12 The SotG CA Appraisal sets out its significance249. It is characterised by its
picturesque charm and its tranquil setting; its significance is best experienced
from the opposite riverbank250. The key position (for both the SotG CA and its
listed buildings) was View 23251. While the significance can also be appreciated
from Kew Bridge itself and from the foot of the listed buildings252, that from Kew
Bridge is an oblique one in the context of noise from the bridge and that from
the foot of the listed buildings deprives the viewer of the ability to see the
rooflines or the skyline, both of which are important to appreciate
significance253. All seemed to accept254 that the best place from which to
appreciate and understand the significance of the SotG CA and its listed
buildings was from the towpath on the opposite side of the river, and that the
skyline behind the riverside buildings makes an important contribution to the
setting which is best appreciated from there.
8.13 The affected listed buildings are 64-71 Strand-on-the-Green255. The list
descriptions recognise their group interest256. They form an important row of
buildings, prominent from the opposite side of the river. The skyline contributes
to their significance, as it does to that of the CA, so that the buildings are prime
elements in the view, and this was emphasised by the CC Inspector (primacy
was the Inspector’s word)257. The proposals would be visible behind the
buildings viewed from across the river - see View 23.
8.14 All but one witness agreed that the harm to the significance of the SotG CA
would be at least in the middle range of less than substantial harm. The
247 Lara Goldstein
248 Kate Randell. As accepted in XX by LBH.
249 Strand-on-the-Green CA Appraisal (CD G01A). See, in particular, §1.3.7
250 All of the heritage witnesses agreed
251 Accurate Visual Representation (AVR) or View 23. From the towpath on the opposite side of the river,
south of Oliver’s Island: SoCG on heritage matters (ID 9), §5.3
252 As argued by CM Proof (CD M02), §§7.13-7.19.
253 VS in EiC.
254 Including CM in XX by LBH.
255 Zoffany House (number 65) is listed at Grade II*; the others are Grade II.
256 VS Proof (CD M07), §5.45.
257 CC Inspector’s Report CD I04, §12.50: the riverside frontage, and the listed buildings it contains,
retains primacy in the view across the river. That primacy in these views is an important element of the
contribution setting makes to the significance of the Strand-on-the-Green Conservation Area, and of the
many listed buildings fronting the river.
https://www.gov.uk/planning-inspectorate 55
Applicant’s evidence258 understates the impact as it relies on existing intrusion
to justify further intrusion; the development plan requiring the backdrop to
change when there is no carte blanche to developers; it refers to other places
than the best viewpoint; it refers to a populist approach; and relies on design
mitigation when it is height, spread and bulk that matter.
8.15 The evidence for the Mayor259 was at odds with the CC Inspector and all other
heritage witnesses. The rationale was unconvincing260. The CA Appraisal
includes Strengths, Weaknesses, Opportunities, and Threats (SWOT) analysis261.
The proposals magnify the identified weaknesses and demonstrate the identified
threats. Existing development behind the SotG, notably the BFC Stadium, does
not provide developers with a free pass when it comes to the historic
environment. Development has to be properly managed in order to protect that
environment. These proposals would cause a significant level of harm to the CA
and its listed buildings. A smaller scheme would be less harmful262.
8.16 Kew Green CA and its listed buildings are the only heritage assets identified by
LBH, RBG and HE where the Mayor and the Applicant do not accept any harm.
Its significance is as an historic open space, bordered by trees and high-quality,
mostly eighteenth century development263. The CC Inspector described it as a
charming space, bounded by a pleasing variety of buildings, a lot of which are
listed264. It is an archetypal English village, dominated by church and green,
with rambling buildings of mellow brick. The setting is well-preserved,
substantially open behind the border, and provides the Kew Green CA and its
listed buildings with a raison d’etre265. The extent to which the border and the
green predominate over what lies beyond is an important element of the
contribution that setting makes to its significance266.
8.17 Without prejudice to kinetic views, the key positions are View 20 (south-east
side of Kew Green) and View 22. The Citroen proposals will be visible in the
setting, rising behind the border. Both are currently open and pristine. The
proximity of the proposals in these views cannot be doubted. From View 20, the
proposals rise up behind the listed buildings numbered 90-96 and 98-106.
From View 22, the proposals rise up behind the listed buildings numbered 73
and 77. These buildings are all listed at Grade II.
8.18 These Views demonstrate how, in both summer and winter, the proposals would
encroach, undermining the extent to which the border and the green continue to
258 Proof (CD M02), §7.20 and §§7.33-7.37.
259 Griffiths
260 CG Proof (CD M05), §4.29, §5.21 and 260 XX by LBH
261 (CD G1A): “It is important that the richness, diversity and beauty of this historical waterfront is
respected. In particular, this requires the protection of its setting, skyline and backdrop from intrusive
development. (p. 36); The skyline is especially vulnerable to inappropriate change. Special consideration
to the impact of taller buildings on the character should be paramount” (p. 37); “Views into and out of
the conservation area should be carefully considered, as well as how the conservation area’s special
interest is viewed from exterior views particularly from Kew Bridge and on the Richmond side of the
river. Recent development proposals have especially failed to fully appreciate the impact of tall buildings
on the view of the conservation area from the south side of the river” (p. 37).
262 VS Proof (CD M07), §5.91 §5.92.
263 VS Proof (CD M07), §5.28.
264 Chiswick Curve Inspector’s Report (CD I4), §12.59.
265 VS Proof (CD M07), §5.36, 5.40.
266 Chiswick Curve Inspector’s Report (CD I4), §12.62; VS Proof (CD M07), §5.39.
https://www.gov.uk/planning-inspectorate 56
predominate. They would not be scarcely noticeable267. Reliance on the
scheme’s fine architectural detailing268 and design quality is misconceived as
fine detail will not be evident in views at this distance, what will matter is height
and spread269. The harm would be in the middle of the range of less than
substantial; but if the proposed buildings were lower in height, the harm would
be less (and removed if the buildings weren’t visible)270.
8.19 It is common ground that harm to the significance of heritage assets has to be
weighed against the public benefits.
8.20 The provision of 441 homes is a significant public benefit271. However, LBH has
a 5YHLS272; it has consistently over-delivered against its target (measured
against the twin sources of completion statistics from LBH’s Annual Monitoring
Report [AMR] and the London Development Database); the IPLP will introduce
higher targets for LBH273. These were agreed save for over-delivery274. Note
that: between 2013-2016, LBH has delivered at 139% of its target275. For the
period 2015-2018, it has delivered 138% against its target276; it is used to
delivering well above the 822 target. The Applicant contradicts the Mayor and
argues that LBH underdelivered, relying on the Housing Delivery Test (HDT)277.
However, whereas the HDT relied solely on the London Development Database,
the GLA’s figures relied on that database but also the completion statistics from
the AMRs produced by LBH. This twin-source approach by the Mayor is more
robust278.
8.21 LBH has been highly proactive in preparing for a higher target279. It has done so
through its LPR for the GWC. This has now undergone its Regulation 19
consultation. Although it carries limited weight at this stage as a material
consideration280, it demonstrates LBH’s positive response to the higher target.
While the HLP Review seeks to determine the location and quantum of
additional residential development through new site allocations, and responds to
the IPLP which identifies the GWC as an OA and as an area for at least 7,500
new homes281, it has a clear objective to conserve and enhance heritage
assets282, and is informed by a Masterplan and Capacity Study and View
Assessment Appendix283.
267 CM Proof (CD M02), §8.19 is not credible
268 CM Proof (CD M02), §8.18, §5.51, §5.55
269 VS in EiC.
270 VS Proof (CD M07), §5.73.
271 SB Proof (CD M06), §6.54.
272 The current target is 822 dwellings per annum. LBH have a 5YHLS. The last published position was
set out in LBH’s 2018 AMR, namely 10.6 years. LBH have updated the position to inform this inquiry: as
at December 2019, the HLS remains in excess of 10 years. SoCG (CD F01), §3.32
273 Intend to Publish version of the new London Plan (CD C5A), p. 175, table 4.1.
274 All were agreed by the Mayor; all save (ii) were agreed by the Applicant. XX by LBH
275 GLA Stage 2 Report (CD H02), §20.
276 KR Proof (CD M04), §9.11.
277 MC’s Rebuttal (CD M12), Appendix 1 (Quod Housing and Viability Supplementary Rebuttal), §2.5.
278 SB EiC.
279 in fact, preparing for the even higher but now rejected target of 21,820
280 By reference to §48 of the NPPF (CD C01), there remain unresolved objections and the Plan has yet to
be submitted for examination.
281 Regulation 19 Local Plan Review (CD D5), §1.3(b), §4.20
282 Regulation 19 Local Plan Review (CD D5), Draft Policy GWC5(f), p. 65.
283 CD D7 and D7A.
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8.22 The LPR identifies a three-tiered hierarchy of building heights: a general height
of 12-24m, a cluster of modestly-scaled tall buildings, and focal buildings of
greater height within the clusters. Focal buildings emphasise special locations in
prominent views284. Draft Policy P3 deals with the section of the GWC which
contains the Application site; the design and heritage section of the policy
at (m) adopts the three-tier height hierarchy285. For the East cluster, the focal
building is at CIW286 and the spatial strategy shows it at the 1-4 CIW site287. The
location is not random, but part of a careful exercise: 1-4 CIW was selected
because it marks the inside curve of the M4, emphasising the open outlook over
Gunnersbury cemetery and providing a central focus to the East cluster.288
1-4 CIW marks the inside curve of the M4; the Citroen site does not289.
8.23 The evidence base for the LPR was compiled when the Mayor had decided to
call-in and support the scheme; it was effectively treated as part of the
landscape. However, the scheme did not present an acceptable approach to
height290, and would harm modelled views towards the Orangery in Kew
Gardens, across Kew Green, and towards SotG291. While the Applicant’s planning
witness made allegations292 about the content of the Masterplan and LBH’s
decision-making consistency, he had little understanding of the document or the
distinction in the height hierarchy between general building heights and the
modestly-scaled tall building clusters. He failed to understand that although the
Masterplan accepted the Citroen scheme it regarded it as unacceptable; or that
resolving to grant planning permission at 1-4 CIW was consistent with the NPPF,
because he had not grasped how the height hierarchy was structured.
8.24 As well as the site allocations through the GWC part of the LPR, LBH is also
progressing a West of Borough part of the LPR, and has been acquiring sites
through CPOs, for example where land assembly has proved an issue at the
Brentford town centre site, (800 homes), and the Lionel Road site, (900
homes)293. The fact that the table of development capacity294 totalled 7,161
homes instead of the 7,500 target failed to have regard to295:
i. the Tesco site was identified for 353 homes, it could produce an additional
617 units (over and above the 353), and in the recent public exhibition Tesco
was promoting approximately 1500 new homes;
284 Masterplan (CD D7), §7.5.5.
285 Regulation 19 Local Plan Review (CD D5), Draft Policy P3, p. 107-108. Note that whereas (m)(ii)
refers to the cluster height for Brentford Stadium East cluster as 46-66m AOD, this was an error and is
expected to be corrected to 46-60m so as to bring it into line with the Brentford Stadium West cluster,
and all other clusters referred to in the draft document, where the cluster heights are lower than the
focal building heights (for obvious reasons).285
286 Ibid, Draft Policy P3(m)(iii), p. 108.
287 FB6, the yellow star within the blue circle on figure 5.8 of the Regulation 19 Local Plan Review (CD
D5), p. 111.
288 Masterplan (CD D7), §7.7.5.
289 There is no basis in policy or emerging policy for KR’s identification of the Citroen site for “landmark”
buildings.
290 View Assessment (CD D7A), p. 35: The Citroen scheme does not present an acceptable approach to
height in the context of the study, which is made clear in view assessments that find its impact a measure
of detrimental impact or distinctly detrimental impact in some views
291 View Assessment (CD D7A), p.82, p.144, p.148 and p.154.
292 MC’s Rebuttal (CD M12): see for example §§2.11, 2.12 and 2.13.
293 SB in EiC and re-examination.
294 Masterplan (CD D7), §7.1.2.
295 SB in re-examination.
https://www.gov.uk/planning-inspectorate 58
ii. the table comprises allocations but does not take account of prior approvals
(at least one in the GWC is expected to add over 200 new homes); it does not
include any homes from the unallocated Citroen site, although LBH accepts the
principle of tall buildings here and encouraged a scheme up to 15 storeys, but
not beyond 48m in height, and that any revisions to the scheme should reflect
the stepped approach of building up towards the M4296. It reasonable to assume
that an alternative scheme could come forward in time and contribute to the
housing provision in the GWC. The housing market is London-wide and LBH has
contributed positively and fully to it in recent years and expects to continue to
do so297.
8.25 Significant weight attaches to the provision of AH (50% provision)298. LBH has
not met their affordable homes target from 2015-2018299, but in delivering 72%
of the affordable home target they have been one of the highest performers in
London (4th highest performing London authority)300, and more than double the
London-wide delivery % over the same period301.
8.26 Although a higher housing target is closer now than at the CC Inquiry: the new
target of 17,820 is lower than that of 21,820 at that time; and LBH is now much
more advanced in preparing for the higher target than it was at that time302.
8.27 The development will support 43 jobs at the site303 compared with 30 people
currently employed304; a net increase of 13 jobs. There is no evidence that the
30 jobs currently on site will be re-provided305. The employment floor space will
reduce from 3,827m2 to a fraction of this. Although the construction phase will
support 250 workers306, this is a very short-term benefit307. LBH gives little
weight to the provision of employment as a benefit of the scheme; the Mayor
gave it none308. Regeneration and public realm improvements are benefits of the
scheme309, including an improved route from Gunnersbury Stadium to Brentford
Football Stadium (subject to other developments taking place).
8.28 The Applicant relied on design quality as a benefit, but a scheme which harms a
range of heritage assets is not a well-designed scheme. Planning decisions
should ensure that developments are sympathetic to local character and
history310. The Applicant preys in aid the quality of residential accommodation
as a benefit of the scheme. However, of the 628 habitable rooms tested for
daylight levels, 75 of these failed to meet the minimum BRE standards311; the
296 Letter from LBH to Applicant 22 December 2017 (CD B02).
297 SB in EiC.
298 SB acknowledged that this was the maximum reasonable amount and a significant benefit
299 KR Proof (CD M04), §9.11.
300 SoCG (CD F01), §3.34.
301 KR Proof (CD M04), §9.10.
302 SB in EiC.
303 MC Proof, §8.26.
304 KR Proof (CD M04), §8.23.
305 MC confirmed in XX by LBH that he had no evidence for this.
306 MC Proof (CD M03), §8.25
307 SB Proof (CD M06), §6.59.
308 KR Proof (CD M04), §9.41; and XX of KR by LBH.
309 SoCG (CD F01), §3.13, §3.76.
310 NPPF (CD C01), §127(c); SB Proof (CD M06), §6.22.
311 SB Proof (CD M06), §6.9.
https://www.gov.uk/planning-inspectorate 59
vast majority of those were living rooms312. In response, the Applicant advanced
two weak points:
i. the policy requirement for flexibility in applying daylight guidance313 –
however, that is what LBH has done in not pursuing this as an objection. The
Applicant conflates acceptability with high-quality as a scheme benefit314;
ii. the Applicant attempts to draw support from the position LBH took to daylight
at 1-4 CIW – however, from a similar total number of habitable rooms, there
only 8 living rooms had a shortfall315.
8.29 LBH has emphasised that the benefits advanced should be subject to a very
important consideration: that a similar package could be delivered from a
scheme which was less harmful to the heritage environment. Sixteen points
support this proposition:
i. In the CC Decision, the SoS found the fact that it could be possible for an
alternative scheme with lesser impacts on designated heritage impacts to also
provide benefits of this type was material and important316.
ii. The existence of the Citadel scheme as a fall-back to the CC was referred to
by the SoS as no more than an example of a possible alternative scheme which,
should it proceed, would offer benefits in terms of job provision, and would
comply with the Council’s emerging policy for this area.
iii. The CC Inspector concluded that […] whether the Citadel does or does not
come forward is not the central point. There is a clear mandate in policy for a
tall building on the site and it is reasonable to assume that one will manifest
itself, in time317. Here there is also a mandate for a tall building: the site is
identified within a tall buildings cluster in emerging policy, and LBH has long
accepted the principle of tall buildings on the site318.
iv. The approach at the CC is consistent with HE’s published advice GPA 2319
that: If there is any apparent conflict between the proposed development and
the conservation of a heritage asset then the decision-maker might need to
consider whether alternative means of delivering the development benefits
could achieve a more sustainable result, before proceeding to weigh benefits
against any harm and its AN 4320 which states that: 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 be
able to find a clear and convincing justification for the cumulative harm. This
wording adopts the NPPF language of clear and convincing justification.
v. Once views had been modelled, LBH suggested to the Applicant that they
consider options of reducing the maximum height for the scheme to either
15 storeys or 12 storeys321; it continued to identify 15 storeys as a maximum in
312 SB in EiC.
313 MC Rebuttal (CD M12), §2.21
314 SB in XX by the Applicant made the straightforward point that the daylight is “adequate” but not
“fantastic”.
315 SB in EiC.
316 Chiswick Curve Secretary of State’s Decision Letter (CD I04), §36.
317 Chiswick Curve Inspector’s Report (CD I04), §12.36.
318 Having regard to Policies 7.7 of the London Plan and CC3 of the LBH Local Plan; SoCG (CD F01), §3.11.
319 Managing Significance in Decision-Taking in the Historic Environment (CD G08), §26. This is a material
consideration
320 Tall Buildings (CD G10), §5.5
321 In June 2017. RB Proof (CD M01), §§6.30 and 6.36.
https://www.gov.uk/planning-inspectorate 60
December 2017322.
vi. Based on flawed advice323, the Applicant rejected the suggestion to reduce
heights324. A maximum 15 storey scheme was not dismissed on the basis of
being unworkable but on account of architectural design preferences325. The
Applicant never looked in any serious way at reducing the heights as
demonstrated by the fact that they did not commission any AVRs for lower
heights.
vii. The architects concluded that a 15 storey maximum height, maintaining
height differences in adjacent towers, would still have produced 392 units – only
35 units fewer than they submitted to LBH prior to amendment after the
Mayor’s call-in)326. It is unknown whether a maximum 15 storey scheme could
have produced even more units by varying layout and height differentials.
viii. In the late note327 the architects considered that a maximum 12 storey
scheme would have needed to maintain a variation in height of 6 storeys per
block328. Proportionally that would involve more variation between blocks than
the Application scheme. This surprising comment calls into question whether if a
maximum 15-storey scheme would produce 392 units, the extent of height
differentials required had been overplayed.
ix. The Applicant produced no evidence (e.g. AVRs) as to the height at which
the scheme would become invisible in the view towards the Orangery or across
Kew Green. There was some speculation329 but a lack of clarity.
x. A lower scheme, even if it remained visible in key views, would be less
harmful330. It is difficult or impossible to properly identify how much less
harmful without the benefit of AVRs331.
xi. Without serious consideration, the viability of a reduced-height scheme was
never properly tested. The most that the Applicant’s viability consultant could
say was that a reduction in the number of homes would result in the viability of
the scheme being even more challenging332. That is far removed from an
assertion that a lower scheme could not be viable.
xii. The eleventh-hour viability assessment333 considered a scheme which did
not exceed 12 storeys (the notional reduced scheme) but with what layout
variation (e.g. the extent of public realm) whilst the block-to-block variation of
6 storeys which forms part of this notional reduced scheme is unfathomable.
xiii. The burden of demonstrating whether a less harmful (lower) scheme could
work rests with the Applicant334. The suggestion that the alternative scheme
argument should be reduced in weight because no other party puts forward any
alternative scheme which it says is acceptable and deliverable335 is
322 Officer’s Advice Letter (CD B02): It is considered that any development beyond 48m in height should
not be permitted on this site.
323 JLL advised that there would be no harm to the significance of heritage assets, a position abandoned
once the Applicant appointed CM for the purposes of this inquiry.
324 RB Proof (CD M01), §6.33.
325 The scheme architect confirmed: RB in XX by HE.
326 RB Proof (CD M01), §6.27.
327 Note dated 27 January (ID 26)
328 Hawkins\Brown file note (ID 26), §4.1.3.
329 MC thought below 15 storeys, CM thought 12 storeys
330 VS Proof (CD M07), §§5.65, 5.73, 5.91; and in EiC.
331 As MC confirmed in XX by RBG Kew.
332 MC’s Rebuttal (CD M12), Appendix 1 (Quod Housing and Viability Supplementary Rebuttal), §3.4.
333 Note dated 27 January (ID 26).
334 This was accepted by the Mayor. XX of KR by HE.
335 Note dated 27 January (ID 26), §5.3.
https://www.gov.uk/planning-inspectorate 61
misconceived. It is not the function of the Council (or any other party) to design
alternative schemes, although LBH were consistently encouraging the developer
in 2017 to model a lower scheme. Policy support to confirm this, is in IPLP
Policy D9: proposals resulting in harm will require clear and convincing
justification demonstrating that alternatives have been explored…336. The
burden rests with the developer337.
xiv. The scheme which LBH recently resolved to grant planning permission
adjacent to 1-4 CIW is lower than the Citroen proposals338 but still provides 420
flats, including 209 affordable units339. It is viable based on a very similar
tenure-split to this scheme340. Only 30 minutes before closing submissions were
due to begin, the Applicant served yet another late note, this time including an
attempt by their viability consultant to distinguish the two sites. LBH reserve a
right to respond (if necessary) to this in writing but observe that the note
identifies important similarities between the schemes. Most importantly,
reducing the overall unit numbers will see a reduction in affordable housing
below 50%: that is a million miles away from saying that a reduction in
numbers (as a consequence of designing a less harmful scheme) would not be
viable.
xv. Considering the public benefits of an alternative scheme does not mean that
these should be identical (e.g. the same number of units). The planning
witnesses agreed341 that this was the only sensible interpretation because, in
the real world, it would be virtually impossible for two different schemes to
produce exactly the same set of benefits.
xvi. The scheme architect confirmed342 that his practice has been in business for
30 years, has been shortlisted for the Stirling Prize, and has won the Architects’
Journal Practice of the Year three times. They have designed many notable
schemes in London343. The practice has the skills, knowledge, resources,
experience and expertise to develop complex projects in challenging
environments344. Its approach is the ability to develop a solution that fits; key
words to describe the practice would be: skilful, resourceful, adaptable345. It is
reasonable to expect that, if so briefed, the practice could have produced an
alternative, less harmful scheme, capable of producing a similar range of
benefits.
8.30 The less than substantial harm which would result from these proposals has to
be balanced against the public benefits. This balancing exercise has been
undertaken by three parties: the Applicant, the Mayor, and LBH. The approach
336 Intend to Publish version of the London Plan (CD C05A), p. 150.
337 SB in EiC; KR in XX by LBH.
338 Block A 8-12 storeys, Block B 8-14 storeys, Block C rising to 16 storeys: see Capital Interchange Way
Officer Report (CD I01), §4.6. The site is further away than the Citroen proposals in key views, which
reduces impact: SB in re-examination.
339 Capital Interchange Way Officer Report (CD I01), §1.1.
340 SB in response to questions from the Inspector. Re tenure split, he clarified that 1-4 Capital
Interchange Way is 30% London Affordable Rent, 10% Affordable Rent, 60% shared ownership (Citroen
being 30% London Affordable Rent and 70% Shared Ownership). He was asked by the Inspector whether
there was anything different about the Citroen site, compared to 1-4 Capital Interchange Way, that would
mean the Citroen site with lower heights could not be viable. SB replied: “Not that I am aware of.”
341 for LBH and the Mayor: KR in XX by LBH; SB in EiC.
342 XX of RB by LBH.
343 Including Clapham Peabody Estate, Agar Grove regeneration, and Mill Harbour Village
344 RB Proof (CD M01), §2.15.
345 XX of RB by LBH.
https://www.gov.uk/planning-inspectorate 62
of both the Mayor and the Applicant is demonstrably unsound and itself
unbalanced. At Stage 1, the Mayor was indicating that a policy-compliant AH
offer would overcome the harm identified then to SotG CA (and its listed
buildings). In spite of the escalating harm in the advice being given to the
Mayor, that appeared doomed to be overwhelmed by the increase in AH by
50 units. It is as if the provision of AH is afforded special importance within the
balancing exercise. It is important, but it does not have special importance.
8.31 The Applicant’s planning witness, and adviser from early on, demonstrated a
black-and-white approach to the planning balance. In his rebuttal proof346, he
misrepresented a simple statement347 that less than substantial harm to the
SotG at 1-4 CIW was outweighed by the public benefits, in particular the
provision of AH. He characterised that statement as an attempt by LBH to argue
that the public benefits are distinctly more favourable at CIW and should not be
accepted and is clearly inconsistent. That was an obvious mischaracterisation as
LBH had concluded that the only heritage harm which could be considered more
than slight was to SotG, and that no harm would result to the WHS348. In other
words, on LBH’s analysis, the harm was less than that LBH concluded would be
caused by this scheme. LBH had not argued – anywhere – that the public
benefits were more favourable at 1-4 CIW349. In heritage terms, the 1-4 CIW
scheme is less harmful. The oral evidence of the Applicant’s witness350 failed to
grasp this point. The heritage harm was treated as a singular position that harm
would result, and that it was more or less irrelevant how serious that was. It
was believed that, since both schemes would result in less than substantial
harm, but offered similar benefits, it was inconsistent to treat one scheme
favourably and the other unfavourably. There appeared to be no appreciation of
differentials within harm, and it appeared blinkered by the benefits package.
When the Applicant’s planning witness was asked whether, whatever was said
about where on the spectrum of less than substantial harm the harm lay, would
the conclusion have been the same, the reply was: Yes, in my mind the public
benefits are clear and overwhelming351.
8.32 By contrast, the LBH approach has been fair, objective, and balanced. It has
accepted the principle of tall building development on the site. It engaged with
the developer to suggest a lowering of the proposed height. It clearly identified,
in its assessment, the level of harm within the spectrum for each relevant
heritage asset. It afforded significant weight to the provision of housing and AH,
and weight to other benefits offered by the scheme. That it resolved to grant
planning permission on the neighbouring site at 1-4 CIW, where the level of
harm was reduced (by virtue of its location slightly further away from the key
heritage assets and its lower height), and where public benefits were
comparable, is compelling evidence of consistency and of balance.
346 MC Rebuttal (CD M12), §§2.5-2.7.
347 by SB (in his proof)
348 Officer Report for 1-4 Capital Interchange Way (CD I01), §7.31.
349 Although it is noted that, in addition to a similar housing and affordable housing provision, the 1-4
Capital Interchange Way scheme provided approximately 4 times the employment floor space compared
to Citroen, and more than 300 jobs.
350 In particular XX of MC by LBH.
351 XX of MC by LBH.
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8.33 In opening, LBH said: This case is about the balance between heritage and
growth, which are entirely compatible, if properly-managed. This scheme does
little more than pay lip-service to heritage. It gets the balance wrong352. Nine
days of evidence at this Inquiry has shown this to be an accurate assessment. It
is respectfully submitted that planning permission should be refused.
Additional comments
8.34 The way in which this case is presented needs no further comment in respect of
the CC judgment.
8.35 The Applicant now argues that RBGK could plant trees353 at the rear of the
Orangery to block views of this scheme. This was unfairly raised at the end of
the Inquiry. There is no evidence that this would be successful, it is wrong in
principle, such trees would take decades to establish, and they would need to be
managed including for losses. The proposal is rushed and poorly considered. It
does not offer a solution but shows a lack of understanding as: it proposes
mitigation that it is unable to deliver; misunderstands WHS MPlan policies;
proposes inappropriate specimens in an inappropriate location; and it does so
by way of procedural injustice. The mitigation is an acknowledgement that harm
would be caused but can neither be delivered nor enforced. The only way to do
so is with the agreement of Kew: this will not be forthcoming, and the proposed
mitigation will not be delivered. Mitigation could be offered by the Applicant, but
it prefers to shift the responsibility to Kew.
8.36 The Applicant referred to the Westferry decision letter in closing as an example
where harm to heritage assets including a WHS was not an insuperable obstacle
to planning permission354. In light of the Consent Order, this reference is no
longer appropriate and should be deleted.
9 The case for the Historic Buildings and Monuments Commission for
England (Historic England)
Its case, with only minor adjustments, is as follows.
9.1 Historic England (HE) is the lead body for the heritage sector and the
Government’s principal adviser on the historic environment355. It rarely appears
at a public Inquiry, but it has done so here given its serious concerns about the
extensive harmful impacts that this scheme would cause to heritage assets,
including those of the highest importance. As a statutory consultee and with its
specialist role its views should be given considerable weight and only departed
from for good reason.
9.1 HE is concerned with the harm which the scheme will cause to the settings of:
the WHS; the Kew Green CA; the SotG CA; and the listed buildings within them
(including the Grade I listed Orangery). ICOMOS has been informed of the
352 LBH Opening Submissions (ID 4), §2.
353 This is covered in the original closing and an additional note. My summary covers both.
354 ID39 L&Q §24
355 Its statutory duties include securing the preservation of … historic buildings and conservation areas. It
adds properties to the statutory register of gardens and parks, and is a consultee on WHSs.
https://www.gov.uk/planning-inspectorate 64
proposals and its response is awaited, however it has already said that where HE
raises concerns there are likely to be issues at the World Heritage level.
9.2 The SoS has already accepted in relation to Kew that any intrusion of [the] city
must be harmful356 to its setting and its OUV. This scheme would clearly intrude
into views from the Gardens and exacerbate the adverse effects of other
development on the significance of this exceptional place. It would encroach
prominently on views of the highly important SotG CA, one of the most important
historic waterfronts on the Thames, allowing further new harmful development to
spread at its greatest height into its most vulnerable location. It would harmfully
disrupt the relationship between the historic buildings and open space in the KEW
GREEN CA, a rare surviving example of a London village green.
9.3 Following the evidence at the Inquiry, HE’s concerns with the impacts of the
scheme have intensified. The Applicant and the Mayor have substantially
underplayed the harm that these proposals would cause. They have
fundamentally failed to recognise the important contributions made by settings to
the significance of these heritage assets. They have failed to recognise the
adverse effects of existing and consented detractors when calibrating their
judgments on harm. They have wrongly claimed an inevitability of harm from
prospective schemes in the GWC OA, despite agreeing that the emerging policy
which plans future development there can only be given limited weight.
9.4 From the inception of the design process, the Applicant failed to take heritage
impacts seriously when devising the scheme357. The architect inexplicably
thought his role related to designing a scheme in its immediate context358 and
abdicated all responsibility to heritage advisers. Their assessment was only
provided at a late stage when the fundamentals of the design had been set. Their
advice - that the proposals would cause no harm at all - was relied upon during
scheme design, but in preparation for the inquiry has been accepted by the
Applicant to be wrong. The Applicant also failed to consult HE at all before
submitting its application, which it now accepts was contrary to good practice. All
this might explain the failure of the design process, but it does not excuse it.
9.5 It was also wrong in this case to have expected the Mayor to scrutinise the
scheme effectively. The only written advice received before the representation
hearing report was a short email, where the heritage impacts of the entire
scheme were addressed in only around ten lines of consideration. This was
accepted by the Mayor to be internally inconsistent and unclear. There is no
transparent record of how discussions then led to the content of the report, and
even then, the Mayor was wrongly advised not only that the scheme would cause
no harm to the WHS359, but that the proposals would comply with strategic policy
on the historic environment. When HE was eventually consulted, the response of
the Mayor was to seek an increase in the height of a scheme about which HE had
356 CC decision letter CDI4
357 There is nothing in the DAS or the addendum for the scheme to show that heritage issues had any
influence on the design of the scheme at all.
358 Brown XX.
359 CDH3 at [223]/56. The addendum report of 2 December 2019 (CDH6) was prepared following the
instruction of MR Griffiths over a year after the Mayor’s decision on 22 August 2018 to grant permission
(CDH5).
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already expressed strong concern. Without this call-in the scheme would have
been approved and these failures would not have come to light.
Royal Botanic Gardens, Kew360
9.6 Kew Gardens is a landscape of international renown, created from its history as a
Royal residence and its past, present and future as the greatest botanic gardens
in the world. Its inscription as a WHS in 2003 placed an obligation on the UK
Government to do all it can to protect, conserve and transmit to future
generations its OUV, including the management of change outside the site. It is a
Grade I registered garden, a CA, and the home of 56 listed buildings, two of
which are also scheduled monuments. It is the rarest heritage designation and of
the highest possible significance under heritage policy361.
9.7 The SOUV for Kew, as approved by the United Nations Educational, Scientific and
Cultural Organization (UNESCO)362, specifically identifies how elements of the
18th and 19th century layers including the Orangery…convey the history of the
Gardens’ development from royal retreat and pleasure garden to national
botanical and horticultural garden.
9.8 The Kew MPlan363 evaluates the attributes of OUV to incorporate: a rich and
diverse historic cultural landscape providing a palimpsest of landscape design;
and an iconic architectural legacy including a series of iconic glasshouses such as
the Orangery, the only surviving plant house of William Chambers in the WHS
and its largest classical building.
9.9 It is beyond dispute that the garden landscape and the changes to it over time
are central to the outstanding value of Kew. And the buildings that provide its
iconic architectural legacy, including the Orangery, are a vital constituent of this
layering of landscape design. The Orangery was one of the most important
buildings in the Gardens, and represented the OUV. As a Grade I listed building,
it is also of the highest significance in its own right.
9.10 The other important theme in the SOUV and MPlan is the expression of concern
about the impact of development in the setting of the WHS. The SOUV, when
addressing the integrity of the site, warns that that development outside the BZ
may threaten the setting of the property.
9.11 The MPlan:
- highlights how the Haverfield Estate tower blocks punctuate the skyline above
the trees and represent an unfortunate eyesore;
- emphasises how they are affecting the setting on the northern edge of the
Gardens…but the emerging dominant development along the western bank of
the Thames within Brentford also poses a threat to the quality of the overall
setting364;
- records how ICOMOS has taken the view that the overall aspect of six 22-
360 HE deferred to RBGK for more detailed submissions
361 See CDC4 [7.30]/297; Miele xx; NPPF [184] and PPG Reference ID 18a-026-20190723.
362 See CDG6 [3.7.3]/55.
363 Its importance is confirmed by London Plan policy 7.10 B (CDC4 p. 299). Also Hounslow HLP policy
CC4 at CDD1 p. 140-1; the Mayoral SPG on WHSs CDC16 at [2.19], [2.21] and [2.23]/13-4 and PPG
Reference ID 18a-034-20190723. It is approved by DCMS and DEFRA: see CDG6 p. 9.
364 [3.6.5]/52-3.
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storey tower blocks (Haverfield Estate)…diminished the visual experience at Kew
at several points in the Gardens. Current development proposals for Brentford
raise additional concern for future intrusion within the visual envelope of the
WHS365;
- specifically includes policies which state that development which would impact
adversely on the WHS, its OUV or its setting is not permitted366.
9.12 ICOMOS has more recently confirmed, when raising strong objections to the CC
scheme, that any disturbance to the setting strongly diminishes the OUV of
Kew. The UK Government has itself reported to UNESCO in terms which
highlight the harm that development outside the BZ has caused to
significance367.
9.13 These strong concerns have been expressed because it is clear that the setting
of the WHS makes an important contribution to its significance:
- the Operational Guidelines establish a direct link between the protection of
OUV and the broader setting of a WHS368;
- ICOMOS, when commenting on the CC proposals, was at pains to emphasise
how the setting of Kew was especially important, given that views in this style
of landscape garden are crucial for the enjoyment and experience of the
property and its OUV369;
- the MPlan emphasises the importance of ensuring the protection of the site so
that the landscape setting and interrelationships of the designed landscape and
listed buildings can be fully appreciated370;
- the MPlan highlights the development of Kew has been based upon retaining
an enclosed ‘otherworldiness’ which reinforces a sense of seclusion from
surrounding urban encroachment, promoting a strong sense of enclosure and
separation which allows the Gardens to be experienced singularly within its high
walls and boundary planting. This sense of enclosure underpins the character
and OUV of the Property371, which is an internally-oriented landscape and
preserving the integrity of this setting from external intrusions plays a
fundamental role in supporting OUV. This summary was accepted by the Mayor
to be accurate; and to the extent that any reservations were expressed by the
Applicant they were not cogently articulated;
- the Mayoral SPG highlights how Kew is nine miles from central London and is
the most self-contained of the four WHSs in London, offering the chance to
escape the city372.
9.14 This understanding of setting had already been supported by the CC decision,
where HE’s understanding of the importance of the setting was adopted by the
Inspector and accepted by the SoS: the setting of Kew Gardens cannot be
separated from the first three attributes of OUV. The experience of the designed
and historic landscape…, the iconic architectural legacy, and the living plant
365 [3.9.2]/60. See too Croft proof [5.7.10]/55.
366 See Policy 1d at [12.3/142; and Policy 3a [12.5]/143.
367 See CDG19 [2.4], [2.5], and the Table at [5.1.1]/ p. 11, which notes that New residential
development in Brentford is ongoing cause for concern.
368 CDG18 [112/32].
369 CDG28, penultimate page.
370 [9.1.2]/96; see too [9.2.8]/98.
371 CDG21 p. 22.
372 See p. 59; see too p. 43.
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collections, is revealed and enhanced by the ability to appreciate these qualities
in a well-preserved environment that still resonates with the sense of an
Arcadian escape from the world of intense city living373. This formulation neatly
encapsulates the way in which the setting of Kew Gardens contributes to its
significance.
9.15 Further, views towards the Orangery…are essential to an understanding of the
place of the Orangery in the designed landscape. As explained, these
observations apply equally here. Setting is a fundamental component of OUV
and the ability to appreciate Kew depends to a large extent on its setting. Thus,
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. And any harm to the setting of these listed buildings [including the
Orangery] would thereby harm the significance of that building, but also that of
the designed landscape which are both important aspects of OUV. In the specific
circumstances of this case, visibility equals harm and it is untenable to suggest
otherwise.
9.16 Subject to interruptions to the roofline by (in particular) the BFC development,
which are considered further below, clear sky appears behind the roofline of the
iconic architecture of the Orangery. This appears as a primary feature and key
marker in the landscape in key views, in which open sky would have
underscored the perception of removal from the urban world outside. Views
towards the Orangery, illustrated in this case by View 30, are therefore of great
significance given the contribution of the setting to the significance of Kew. They
are experienced as part of the palimpsest of landscape design, taking its
important architectural legacy, in an environment designed to be preserved
from the sense of intense city living beyond.
9.17 The Applicant and the Mayor made various attempts to downplay the
importance of these views, by contending amongst other things that View 30
was not a designed view; that there was no designed relationship between the
Orangery and the Great Lawn or what succeeded it; that the view was not
protected or regarded as an important vista in the MPlan; there are other
available views across wider areas of Kew; that there is already built
development in the view; and that the setting did not make a major
contribution to significance relative to the buildings or the physical landscape
itself. The Applicant relied in part on historical mapping and artists’ impressions
from the 18th and 19th centuries, to contend that there was never intended to
be a strong visual connection between the Orangery and the Great Lawn, or the
location of what is now View 30.
9.18 None of these contentions comes close to disturbing the important contribution
made by setting to the significance of Kew:
- as explained in HE’s evidence374, there was as design relationship between the
Orangery and the garden landscape including the Great Lawn which remains
and allows the OUV and its attributes to be appreciated – the sense of
experiencing a historic landscape design and its associated architectural legacy,
within an enclosed environment with clear sky beyond, intended to be shielded
373 CDI4 [12.101]/137.
374 For which read Mr Dunn’s evidence
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from the outside world;
- visitors to Kew of course benefit from other views in other areas within the
Gardens, but the point is that this one is significant; and if this approach is
followed through it risks successive harm to other important views and
significance, by implying that viewers can simply look elsewhere once each
developer has taken its turn. As put it in evidence, it invites death by a
thousand cuts;
- this view does not need to have been identified on a map in the MPlan for it to
be substantively important when considered in the context of a particular threat
from a proposed development, as is clear from the approach taken in the CC
decision. It is plainly part of a setting which, as described above, is integral to
the OUV of Kew;
- the historic mapping cannot be interpreted as unequivocally as the Applicant
suggests to show a belt or clump of trees intended to block views of the
Orangery from the Great Lawn:
i, the map evidence shows what is agreed to have been diffuse, not dense,
planting between the White House and the Orangery;
ii, RBKC produced a further scaled plan dating from c.1785 which included
survey triangulation lines and showed relatively sparse tree planting;
iii, overall the evidence is inconclusive and it would be wrong to accept the
approach of the Applicant as definitive;
iv, thus it is entirely credible to suggest that these trees were planned to allow
partial views from the Great Lawn in a way which complemented those of the
White House, whilst not competing with them. This would be entirely consistent
with informed and refined landscape design. The contrary idea that the largest
glasshouse in the country at the time should be essentially blocked from views
appears odd by comparison.
- ultimately, the debate over this tree planting does not weaken the importance
of the view. The significance of Kew, and this view, is not in demonstrating a
time capsule of landscape design. Although it survives only in a much-reduced
form, the landscape in this part of Kew is a remnant of a royal garden that was
re-used by Burton and Nesfield as part of the Victorian gardens and continues to
play a strong contemporary role, by offering clear internal views in the surviving
open character of the landscape, providing a legible and tangible link to the
earlier design. Modern views here therefore remain important (and the Mayor at
least accepted this in the end). They allow for an appreciation of the principal
elevation of the Orangery in its intended garden context;
- the CC Inspector thus accepted that views towards the Orangery from and
around the Broad Walk across the Great Lawn, or what remains of its original
conception, are essential to an understanding of the place of the Orangery in
the designed landscape. As such, they are integral to the contribution setting
makes to significance;
- the existence of regrettable development in views of the Orangery is no
reason to downgrade the sensitivity of the view or the contribution to
significance that is made by the setting - quite the contrary. There is no dispute
that there are existing detractors in that setting, of which Haverfield Towers (as
well as the Kew Eye and the waterworks development) are the most relevant.
There is also the BFC development (which is under construction and can be seen
rising above the roof of the Orangery) and (if built) the Citadel. For reasons
which are explained further below, they cannot be treated as a means by which
further intrusions should be justified. This approach would also run flat contrary
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to the views of ICOMOS, the existing and draft MPlans for Kew, heritage
guidance and common sense.
9.19 It is common ground that the impact of the proposals would be harmful, to both
the OUV and discretely to the significance of the Orangery As explained, the
development would appear in View 30, near well-used paths, directly above the
roofline of the Orangery. The scheme would be immediately apparent as a
prominent modern feature, the form and scale of which would be at odds with
the refined architecture and landscape of the WHS. The visual intrusion above
the roofline of the Orangery would compete with and detract from the frontage
of that building within its landscaped setting, undermining its primacy in the
view and harming the contribution the setting makes to the significance of the
listed Orangery and the landscape within which it sits.
9.20 The materials and detailing of the development are unlikely to be readily
appreciable in this view, though its solidity will be very apparent. The new
structures would distract from and obscure the significance of the Orangery in
its symbiotic landscape setting, by appearing as an arbitrary and assertive new
element on the skyline. The visibility of the proposed development, of a form
and scale more at home at the centre of a major city, would invalidate the
sense of escape that is central to the OUV here. Its presence would disengage
the viewer from the same environmental characteristics that appealed to the
royal court and inspired the architects and pioneers of the gardens. This
intrusion of a dense urban built form amongst the garden environment,
designed as an escape from the world beyond, would be inimical to the
application and the significance of the WHS.
9.21 HE judges the harm that would arise, to both the OUV and the significance of
the Grade I listed Orangery375 as moderate within the less than substantial
category. Given the highest importance of these heritage assets, very significant
weight should be given to this harm.
9.22 Beyond its misconceived attempts to deny the importance of View 30, the
Applicant and the Mayor seek to downplay this harm by arguing that not all of
the criteria for inscription as a WHS, or its attributes, would be affected; that
there would be no direct effect on the fabric of the WHS or the landscape
palimpsest in particular; that visibility does not of itself amount to harm; that
View 30 is part of a kinetic experience which would involve passage across the
lawn where the scheme would leave the view; and that the viewer would be
able to discern the difference between new development and the architecture of
Kew. They again refer to the existence of the BFC development and the
Haverfield towers in the views already, along with the perception of aircraft
noise; and to the potential for trees to screen the affected view. They conclude
that the harm would be at the low end of less than substantial.
9.23 These contentions – and the conclusion which flows from them - are
fundamentally flawed:
- the video evidence submitted by the Applicant gives what HE regards as a
clear illustration of the harmful impacts held in prospect by this scheme. The
upper storeys of the towers would be undeniably prominent, unsympathetic and
375 As well as the Grade I registered park and garden and the conservation area (all of which are
elements of the World Heritage Site).
https://www.gov.uk/planning-inspectorate 70
intrusive, drawing the eye away from the fundamental relationship between the
Orangery and the landscape;
- when viewed with the BFC and the potential Citadel, most if not all of this
kinetic view would have development visible above the roofline of the Orangery.
The proposals would in any circumstances clearly impose themselves in a
central element of that view;
- the mere ability to distinguish between these modern proposals and the
historic architecture of the Orangery says nothing in itself about the effect on
significance that these proposals would cause, by distracting from the
fundamental relationship between landscape and architecture in an enclosed
setting;
- as was accepted in the CC decision, this is a case where visibility in views does
equal harm, given the particular contribution that setting makes to significance;
- the aircraft noise is not persistent as alleged and in any event does not relate
to the integral relationship between the garden landscape and iconic
architecture in a visually contained setting which is central to this case;
- it does not matter that criteria relating to inscription (relating to botany and
ecology) would be unaffected, not least because inscription only requires a
single criterion to be satisfied;
- similarly, the absence of any direct impact cannot realistically relegate the
judgment on harm to a low level given the extent of intrusion and the
importance of these views;
- reliance on RBGK planting trees to screen the view is not acceptable. It
imposes an obligation on RBGK to deal with a harm which is not of their making.
The proper approach is to ensure that prospective developers are not allowed to
create the harm in the first place, particularly when successful mitigation cannot
be guaranteed. To allow this approach would just see developers treating it is as
a free pass to propose ever taller development. Trees would take time,
potentially decades, to grow sufficiently. Their ability to filter views changes
with the seasons and they may die, whether due to disease, high winds or other
risks inherent in climate change. They should not be relied upon to affect the
judgments on harm in this case.
9.24 A further fundamental difficulty with the Applicant’s and Mayor’s cases was their
approach to the development which is agreed to detract from the significance of
the WHS and the Orangery.
9.25 The Mayoral SPG on WHSs applies directly to this case. It advises that: the
cumulative effect of separate impacts should also be considered. These are
impacts that are caused by incremental changes caused by past, present or
potential developments with planning permission that cumulatively with the
proposed development can have a significant impact on the setting of a WHS.
9.26 The PPG also states that planning decisions need to take into account the
principle of 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
effect376.
9.27 Specific HE guidance on tall buildings says that: …a rigorous process of analysis
and justification will be needed in each case. Nor will an existing tall building
376 Reference ID: 18a-032-20190723 and ID: 18a-013-20190723.
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naturally justify further tall buildings so as to form a cluster. Each building will
need to be considered on its merits, and its cumulative impact assessed.
Further, careful assessment of any cumulative impacts in relation to other
existing tall buildings and concurrent proposals will also be needed to fully
understand the merits of the proposal. The existence of a built or permitted tall
building does not of itself justify a cluster or additions to a cluster. Where a
proposal is promoted as part of a cluster, a successful design will have a
positive relationship with the cluster; the altered impact of a cluster itself needs
to be considered. Similar advice appears in other HE guidance on Managing
Significance in Decision-Taking in the Historic Environment and The Setting of
Heritage Assets.
9.28 The underlying concern is that previous compromises to significance caused by
unsympathetic development are used to help justify new development, by
relying on incremental change which does not recognise the negative effects of
those compromises in any assessment of potential harm. Despite claims to have
conducted a proper cumulative assessment, both the Applicant and the Mayor
wrongly relied on existing and consented development to calibrate downwards
their judgments on harm.
9.29 In written evidence the Applicant described the Haverfield Towers as there and
so form part of the baseline condition. The BFC development was also a
permanent part of the scene and so must be taken into account. It was
accepted that these cannot fail to be noticed but it was claimed that they
provide a context for the WHS so that there is thus, a coherence to the impact.
Further the direction of change in the cumulative condition reduces because,
relative to these others, the proposals have a limited impact and one will
recognise that the proposals are part of the layer of larger development at
Brentford.
9.30 The Applicant plainly struggled377 with how to conduct the cumulative
assessment required. It was fairly stated that every case is fact sensitive. But in
this case, the manner of how other detractors had been taken into account was
confusing and incorrect:
- there were references to the EIA concept of the baseline, but it was accepted
that this involved a neutral starting point to cumulative development and did
not allow for previously approved detractions to the significance of Kew to be
taken into account;
- worse still, the indications in the written evidence were accepted to point to a
calibration of harm in which other harmful development downgraded the harm
that would arise when the scheme was developed.
9.31 The judgement of the Applicant about the effects on the WHS would, it was
accepted, not be the same if there was assumed to be no other development
existing or consented visible from Kew. This suggested that no allowance had in
fact been made in any way for other development; and that the Applicant was in
fact relying on existing detractors to justify further harm. Overall, the approach
taken was conceded to be inconsistent with the HE guidance and, it follows, the
Mayor’s SPG and other guidance relating to cumulative assessment. It would
also strike at the very concerns expressed by ICOMOS and the MPlan about
377 In questioning at the Inquiry: Miele xx.
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development diminishing the visual experience of the WHS. There was no
recognition of how overall the proposal would, when considered with these
detractors, leave the asset closer to losing its significance, affecting the
judgment on harm accordingly.
9.32 The problems with this approach were highlighted when the Applicant was
asked by the Inspector about the hypothetical case of a further storey being
added to Haverfield Towers. The approach of the Applicant was to assess the
impact of the additional storey only, treating the existing building as part of a
baseline, either neutrally or to justify a lower calibration of harm given the
extent of harm that was already caused. It was unable to answer the follow up
question about when the decision maker would say no to successive floors being
added, because on whichever of the approaches mentioned, there would be an
ever creeping and worsening baseline, the harm from which would never be
factored in any way into the assessment.
9.33 Similar concerns arise in respect of the Mayor’s evidence. Despite claiming to
have taken into account the guidance and conducted a cumulative assessment,
there are signs that in fact the presence of development or other activity
detracting from significance has been relied upon to qualify judgments on harm.
9.34 The evidence refers to the scheme as forming part of a broader pattern of
development of an increased density to the north of the River Thames. The
effect of the application scheme on this element of the setting would therefore
be negligible. After suggesting that the sound of aircraft intrudes upon the
experience of Kew, this is said: nonetheless the effect of the Kew soundscape
does temper the impact of the application scheme insofar as it can be seen from
the WHS. By the end of the evidence it was accepted by the Mayor too that the
assessment of harm was calibrated down because the proposals would not be
the first scheme to intrude into the visual envelope of views towards the
Orangery. On the Mayor’s own approach, there was also methodological
incoherence in making no change at all between the assessment of solus and
cumulative impacts relating to Kew.
9.35 There was also some reliance placed on the comment by the CC 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 lost378. HE
strongly disputes any reliance on this view in this case, as explained later.
9.36 For all these reasons the Applicant’s and the Mayor’s conclusion that the harm
resulting from the proposals would be at the low end of less than substantial is
misconceived. The proper judgment on harm lies further up the spectrum; on
HE’s analysis a finding of moderate harm is justified.
Strand on the Green Conservation Area (SotG CA)
9.37 The SotG CA was designated in 1968, the year after the enactment of the Civic
Amenities Act which enabled such protection, and was the first designation in
Hounslow, suggesting that its custodians prioritised the protection of its
distinctive and substantial heritage value. It contains 23 listed heritage assets,
378 CDI4 [12.107]/138.
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of which the group at 64-71 SotG, including the Grade II* listed Zoffany
House379, are of particular importance for present purposes.
9.38 The CA appraisal380 confirms its special interest (see s2 above).
9.39 The view from the Kew tow path on the south side of the river, as a continuous
unfolding view is one which is accepted as vital to the character, appearance
and appreciation of the significance of the area.381
9.40 It was agreed that views from the south side of the river are of particular
importance; and that significance derives from a carefully balanced composition
of river waterfront and uninterrupted sky, the latter of which makes an
important contribution to the significance of the area.
9.41 The appraisal specifically recognises how harm to significance has been caused
by recent development, in particular from views on the Richmond side of the
river.
9.42 The views from the south riverbank and along the Strand… and therefore the
setting and appearance of the conservation area, have been and continue to be
compromised by tall building developments to the west. When dealing with
weaknesses it advises that it is important that the richness, diversity and beauty
of this historical waterfront is respected. This requires the protection of its
setting, skyline and backdrop from intrusive development, because the skyline
of Strand on the Green is broken in on and intruded by the BSI tower at
Gunnersbury, with the potential for the Citadel scheme to be finished and have
the same impact and this should not be replicated. The height of the BFC
development has also caused some harm. Threats are highlighted as arising
from appeal decisions approving inappropriately tall and bulky buildings will put
the character and appearance of this conservation [area] at risk of significant
loss and harm. The skyline is especially vulnerable to inappropriate change382.
9.43 The clear – and agreed - point that emerges from the appraisal is that the
skyline is particularly vulnerable as a result of existing development which
detracts from the significance of the area.
9.44 This significance is revealed at View 23, standing on the public towpath on the
south of the river383. As explained by HE, despite suggestions that a more
important orthogonal view of the Strand is available further upstream, this
location is of great importance because here the viewer, travelling westbound
towards Kew, emerges from behind Oliver’s Island, which roots the perception
of the CA and its waterfront listed buildings in the Thames landscape,
reinforcing the visual appeal and the sense of a place of historical continuity. At
this point angled views allow the greatest appreciation of the length and flow of
the Thames with the attractive and modestly scaled historic waterfront,
including the tight grain of the group of listed properties standing side by side
379 See CDG1A p. 18. Running east to west: Magnolia House (64), Zoffany House (65), 66 and 67,
Carlton House (68 and 69), 70 and 70A, 71 (all Grade II except Zoffany House).
380 CDG1A.
381 Ibid 7.2
382 Ibid 11.4
383 See the new AVR material in CDN, 34-7; see in particular the unpaginated “Views for On-Site
Assessment View 23.
https://www.gov.uk/planning-inspectorate 74
looking onto the river. An important element in the view is the core of listed
buildings, including Grade II* Zoffany House, that form the architectural
riverfront. The open sky settling is a key element of significance here, as it
anchors SotG in its context as an historic riverside settlement that pre-dates the
expansion of modern Greater London by centuries. View 23 is in the end
accepted by the Applicant as an important representative viewpoint for
assessment.
9.45 From this location there can be seen to the west some of the larger scale
buildings in Brentford. These are agreed to detract from the significance of the
area, even if they are perceived further to the west of the immediate skyline of
the listed buildings in these best views from the opposite bank of the river. In
the backdrop however there rises the BFC development, behind Rivers House,
which creates a sharp contrast with the traditional riverside buildings of the CA,
causing harm to their significance. The emergence of this new development, in
addition to existing development at Brentford, as well as the recently consented
1-4 CIW scheme, clearly emphasises the particular vulnerability and risk to the
skyline that is highlighted in the CA appraisal, by giving the impression of
development moving inexorably east from Brentford.
9.46 It is agreed that the source of harm which arises from the proposals is a taller
element in the view drawing the eye away from this relationship between
historic frontage and river. It is agreed that any impact on the interaction
between the buildings and the river should attract particular weight.
9.47 From View 23 the proposal has an extreme degree of prominence and
dominance, on its own and cumulatively alongside BFC and 1-4 CIW in
particular. It does not matter here that there would be no physical interruption
in space between the riverfront and the river. The important point, as accepted
by the Applicant, is that this development would draw the eye away from the
frontage. It is agreed that the proposals would exceed the height of any of the
buildings in the CA more than twice over. They are much higher, too, than the
larger scale buildings in the western part of the view. Their form and scale lack
any relationship with the low-lying historic buildings with which they would be
seen. In fact, moving into the view of the Strand buildings from the west, it is
agreed that the scheme has been deliberately designed to step up in height,
producing a very pronounced change in scale, at the very point of greatest
vulnerability to further harm to both the CA and the core group of listed
buildings.
9.48 As explained, the result is a competitive built form, the scale and massing of
which distracts from the appreciation of the area’s historic riverside setting, in a
context where detractors have already caused loss to the significance of the
assets in question. The design is characterised by notable height and by the
expression of contemporary architectural forms which are associated with high
density anywhere urban structures lacking any real connection to their context.
The new buildings would read as a dense mass of clustered vertical forms,
emphasising the blocked form of 1-4 CIW behind, distracting the eye from the
calm of the riparian character of the CA through their large scale and irregular
geometry. They would be completely at odds with the scale and appearance of
the well-preserved and relaxed, village-like form of buildings gathered at the
water’s edge.
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9.49 The Applicant has argued that in kinetic views westwards the scheme would
move away from the historic frontage views, but it is clear from the images that
the scheme appears for part of the selected journey and even when the scheme
moves further west from the frontage as the movement continues westwards, it
would still dominate the perception of the setting. If built, the Citadel would
hove into view in any event. The impact of the scheme would not therefore be
isolated to a single location and would harm kinetic views. The harm that would
be caused in part of the kinetic view, or even View 23 itself, should not be
somehow downgraded or treated as if forgotten by the moving viewer in this
part of the Thames.
9.50 The architectural detailing, which the Applicant wrongly claimed as mitigating
the effect of the scheme, simply does not have any meaningful influence on how
the fundamentals of these buildings are read as a whole. It is agreed that this
detailing has a vertical emphasis which itself draws up the eye and that the
dominant influence on the setting of the heritage assets is instead the height
and scale of the scheme.
9.51 The scheme would add a domineering, urbanising group of structures quite alien
to the riverine surroundings. The visual primacy currently enjoyed by the
historic buildings of the architectural riverfront would be subverted to the new
development. It would bring into this rare survival of London’s exceptional
historic environment a stark and unavoidable clash of character. Its encroaching
presence would magnify and exacerbate existing and consented impacts
including the BFC development which are already apparent due to their
irreconcilable difference of scale, material and form. The effect of allowing this
development, would be to place the CA closer to the tipping point where its
significance is very much reduced. The introduction of the Citadel would
reinforce this conclusion.
9.52 HE is therefore entirely justified in concluding that the harm to the very high
significance of the SotG would be in the upper realms of less than substantial.
The judgments of the Applicant (low end of less than substantial) and the Mayor
(moderate within less than substantial) on the other hand are simply untenable.
9.53 A striking feature of the Applicant’s evidence is, again, how its judgment on the
degree of harm has been wrongly informed by factors which are assumed to
reduce or qualify that harm. First, it agrees that what can be seen of BFC is
relatively poor. It agrees that even behind the scheme 1-4 CIW causes some
harm and detracts from the significance of the heritage assets, because it would
be visible in whatever spaces are left between the blocks of the proposals (albeit
that the proposals would be higher and closer). It also takes the view that the
Citadel would cause harm and have a jagged and expressive view which attracts
attention.
9.54 But it again calibrates its judgment on the degree of harm arising from the
proposals on the grounds that the effect is an intensification of an existing one,
not an entirely new one. This approach undermines the objective of heritage
policy and guidance by treating existing detractors as somehow mitigating harm
when, on the Applicant’s own evidence, the significance would be further
diminished. The inexorable result is that on this ground alone the Applicant
again depressed the proper judgment on harm.
https://www.gov.uk/planning-inspectorate 76
9.55 Secondly, the Applicant relied on the supposition that the backdrop is to change
anyway, and that harm is already deemed acceptable. The crux of this issue
related to the claimed reliance on emerging policy to generate further tall
buildings which would inevitably appear in the backdrop to the CA and the listed
buildings.
9.56 This approach is also misconceived. A number of points arise:
- the IPLP no longer specifically identifies OAs such as the GWC as suitable
locations for tall buildings. Nor does it contain minimum targets for
development - only indicative capacity - for local authorities to take into
account. The location and extent of tall buildings is left to local authorities to
determine through the development plan process384;
- it is common ground that the relevant emerging policy for the GWC, in the
form of the LPR385 can only be afforded limited weight;
- the issue of how much development is to come forward, or where it might be
located, or in what form, is therefore far from settled. As the Applicant agrees,
it is not possible to reach any reliable conclusions at this stage on where any tall
buildings will be located;
- that applies with particular force here, when the Council’s own CA appraisal
has recognised the risk to important views of SotG; and as explained further
below, the emerging plan is based on studies which expressly rule out impacts
arising from this scheme;
- in this context, any suggestion in the CC decision, that protecting Kew
(or SotG) from further visual intrusions is a battle that has been fought and
lost386 should not now be taken to apply, as the Applicant accepts387. The
observations of the Inspector that Mayoral policies strongly favour the
development of the [GWC]…with tall buildings as an integral part of that
approach; that the Council favours 60m-high development on the appeal site;
and that the Mayor is prepared to accept the Citroen proposals do not take into
account the latest evidence: the strong objections to the LPR policies on
heritage grounds; the explicit opposition to this scheme in the LPR; and the call-
in of these proposals by the SoS;
- in fact, to the extent that weight is given to the LPR, its strongest indications
are that development of this scale on this site is unacceptable. The strategic
objectives of the review include protecting heritage388. Under Policy GWC5
schemes are to be designed which avoid any further harm to the setting, views,
significance, OUV of the [RBGK WHS] and other designated heritage assets and
their setting. The Masterplan and Capacity Study389 also explains that tall
buildings proposals must demonstrate how they avoid harm to the significance
of assets. It is now agreed that there is nothing in the study which indicates any
support for a tall building such as those proposed on the Citroen site; and that
explicit opposition to the scheme appears in the Masterplan.
384 See CDC5A, Policy SD1 p.p. 31-2; Table 2.1 at p, 38; Policy D9B p. 149.
385 CDD5: GWC LPR Reg 19 Consultation supported by a Masterplan and Capacity Study with appended
Views Assessment (CDD7 and 7A respectively) is subject to objections from parties including HE and
RBGK (and the Mayor).
386 CDI4 [12.107].
387 Connell xx.
388 P. 31, Objective 12; see too p. 64, 65.
389 CDD7.
https://www.gov.uk/planning-inspectorate 77
9.57 The Applicant has therefore underplayed its judgment on a further misconceived
basis. It again relies on harm to justify more, but this time by anticipating harm
which can on no sensible basis be assumed to be coming.
9.58 The evidence of the Mayor was also unsatisfactory, even it was closer to the
assessment of HE that views from the southern bank of the Thames are vital,
integral and fundamental to the significance of the CA; also that the setting of
the area makes a substantial contribution to its significance, and that the largely
uninterrupted sky was a particular feature of views in that setting. On that
basis, moderate harm would be caused by the proposals even disregarding any
cumulative assessment.
9.59 Despite affirming the need for a cumulative assessment which properly takes
into account other detractors, the Mayor’s evidence suggests that this is not
actually the approach which has been followed. The proposals would, it is said,
not look obviously taller or more prominent than existing buildings. That is
plainly incorrect, but in any event, it has the sense of using the existing
buildings (accepted as detractors) to justify the new ones. Similarly, there are
odd judgments that the scheme would contribute positively to the skyline and in
particular nestle quite happily into the existing context. The nestling image is
extremely inapt; again, its use suggests that the extent to which there has
already been a loss of significance to the CA was not really taken into account.
9.60 There is a further spurious basis for the judgment on the moderate level of
harm. According to the terminology adopted by the Mayor, this finding involves
a high adverse magnitude of change which is defined to mean a radical
transformation of the setting of built heritage asset. This would lead the Mayor
to a conclusion that there would be potentially a major significance of effect
(close to HE’s assessment) if it were not for the mitigation offered by the design
of the scheme, which reduces the residual effect to moderate.
9.61 But, the design of the scheme is driven by its sheer divergence in height with
the historic context. View 23 confirms that the skyline development is not varied
to any meaningful degree; the primary impression is of a serried verticality
which actually worsens as the eye moves along to the skyline above the lower-
lying historic buildings in the important views. Surface relief and material
finishes are also relied upon as mitigation, but on the Mayor’s approach this is
flatly inconsistent with the view that it is not feasible to appreciate the
architectural qualities and detail of the historic buildings which lie closer to
View 23. These mitigating features of the scheme in reality come nowhere near
downgrading the judgement on major harm to the extent relied upon here.
9.62 For all these reasons the judgements reached on the harm to the CA and listed
buildings by the Applicant and Mayor do not withstand scrutiny. Whilst they
both rightly acknowledge harm to the significance of these heritage assets, both
underplay the true extent of harm. The HE approach should be preferred.
Kew Green
9.63 Kew Green was designated as a CA in 1969, is part of the WHS BZ and contains
38 listed buildings, four at Grade II*. The CA appraisal390 explains that it was
390 CDG2.
https://www.gov.uk/planning-inspectorate 78
designated as an historic open space, the associated high quality of mostly
C18th development and its superior riverside development. The area is made
attractive by its abundance of mature street trees and it forms a visually
cohesive area with an easily identifiable sense of place. It has a definite village
character. The Green includes a fine example of an historic Green, with the
entrance to Kew Gardens to the west, and is surrounded by large C18th and
C19th century houses, many of which are listed and which through the quality
of their architecture add formal grace to the central area. The appraisal
identifies problems and pressures including development pressure which may
harm the balance of the river and landscape-dominated setting, and the
obstruction or spoiling of views, skylines and landmarks.
9.64 Almost every building bordering or contained within the Green is listed, and
although most date from the late eighteenth or early nineteenth centuries, some
are older still. The common land is a rare and well preserved example of a large
green at the centre of a London village, even including a cricket pitch and
pavilion.
9.65 The setting of Kew Green is integral to its significance. Its character and
appearance are upheld by the sense of broad open space, given a clear
boundary and sense of enclosure by the line of well-preserved historic buildings
and trees at its edges. It is traditional, aesthetically pleasing, and valuable for
its immediately appreciable character as an historic place largely set apart from
the modern city beyond. In key views a mostly uninterrupted skyline, viewed
beyond trees, is a key element of setting which reinforces this significance, as
the CA appraisal recognises.
9.66 These features are all apparent in the representative Views 20 and 22. It is
agreed that there is a historic uniformity to the streetscape with little modern
development; and that the well-preserved skyline is an important aspect of the
character of the area which reinforces the significance of the village character.
9.67 It is also agreed that the proper approach to assessing harm is to consider the
extent to which the scheme lifts the eye and so disturbs the relationship
between the open space and the historic buildings which bound it.
9.68 The difference between the parties is that HE categorises the proposals as
causing a moderate level of less than substantial harm. The Applicant says there
would be no harm at all and that the cumulative condition would not increase
the perceived impact or effect. The Mayor claims that the impact would be
negligible adverse but with the mitigation offered by the architectural design
this would be reduced to a neutral residual effect, which does not change under
a cumulative assessment.
9.69 The judgements of both the Applicant and Mayor are not a fair reflection of the
visual material before the Inquiry or how the proposals would be perceived in
the relevant views.
9.70 It is difficult to see how the eye of the viewer could avoid being diverted from
the fore- and mid-ground relationship between the historic buildings and the
green. In View 20, from this east part of the Green, even with the distance
https://www.gov.uk/planning-inspectorate 79
involved391, the scheme would appear through a gap in the trees, above the
roofline of the existing Grade II listed late Georgian terrace at Nos. 90-96 Kew
Green. It would rise prominently within the view, introducing modern
development that lifts the eye and thereby interrupts the skyline formed by the
early 19th century buildings fronting this part of the Green. The currently
harmonious combination of foreground open space and a background of
traditionally scaled buildings and trees that makes Kew Green instantly
recognisable as one of London’s best remaining village greens would be
encroached upon, by the conspicuous height and form of modern development.
The materials and detailing of the development are unlikely to be readily
appreciable in this view, and its solidity will be visually arresting. The
development may reflect sunlight at particular times of day, and in the evening
and night it would appear unusually prominent.
9.71 This effect - relating to up to 6 visible storeys - cannot seriously be described as
scarcely noticeable or neutral. Indeed, it is difficult to see how under the
Mayor’s methodology there could be a degree of harm which is somehow
rendered neutral by the architectural quality of the scheme. If the presence of
the building is judged to cause harm, this must be caused by reason of its
perceived height and massing. Other aspects of the detailed design cannot
conceivably remove that harm. The Applicant takes a similarly confused
approach – relying upon the separation of distance to avoid potential harm but
at the same time claiming an ability – at that distance - to discern the finesse in
the detailing. In reality the details will not be readily appreciable, but the viewer
will be distracted by the unsympathetic scale and massing of the scheme.
9.72 Similar concerns arise in respect of View 22, in the south-west corner of the
Green. In this view, the development would appear above the treeline and
height of the existing buildings and would become the tallest element in the
view (as with View 20), introducing modern development that again disrupts the
historic low scale of the skyline formed by the buildings fronting the Green,
which currently screens modern London from the view and helps preserve the
village character here. The proposals would permanently alter this relationship,
undermining the character of the Green.
9.73 The Applicant also produces View 20B, but this confirms wider impacts and
shows the scheme rising intrusively into a clear gap between historic buildings
that currently directs the eye to the clear skyline and reinforces the character of
the area.
9.74 Claims about the orthogonal or glimpsed nature of views and the
complementary architectural form are misplaced. Right-angled views do not
temper the prominence of the buildings, which would appear assertively above
the roofline with little discernible detailing. The blocked form of the scheme
would not be read harmoniously with the contrasting refinement and scale of
the historic buildings on the Green.
9.75 The Applicant and Mayor refer to traffic running through the Green, but this
does not affect the important visual relationship that is agreed to provide the
defining contribution to the heritage significance of the area. Again, even if it
391 C. 800m from the viewing positions.
https://www.gov.uk/planning-inspectorate 80
were perceived as a detractor, this can hardly be used to justify an
accumulation of harm.
9.76 Other developments will or would have an impact on Kew Green and its listed
buildings. In View 20, the consented BFC scheme would be largely screened by
trees, but would be noticeable. In View 22 it would appear slightly above the
roofline of the Grade II listed building at 71 Kew Green. This unwelcome
development would cause harm to the setting of these heritage assets, albeit
that it would be screened more by trees and be perceived at a lower level than
these proposals. The current proposals, however, would cause further harm. In
View 20, part of the Citadel proposal if built would be intrusively visible next to
the 1920s mock Tudor Greyhound pub, reinforcing the sense of significance
being lost due to the appearance of modern development in the backdrop.
9.77 Overall therefore HE’s judgment (moderate harm) is to be preferred to findings
of no harm, which are unrealistic even on a cursory view of the visual material.
9.78 HE does not often consider it necessary to remark on the interpretation of
development plan policy dealing with heritage issues, but the failure by the
Mayor in particular to acknowledge clear breaches of strategic and local policy
requires comment. So too does the position with emerging policy.
9.79 The policy analysis in this case, as in any other, must apply the statutory
presumption in favour of the development plan. The development plan in this
case comprises the extant LonP and the adopted Hounslow LP.
9.80 The starting point for the application of heritage policy is that all parties
conclude that the scheme would cause harm to heritage assets.
9.81 On a straightforward approach to LonP policy, the scheme would therefore fail
Policy 7.10392. The Policy states that development should not cause adverse
impacts on [WHS]s or their settings…In particular, it should not compromise a
viewer’s ability to appreciate its [OUV], integrity, authenticity or significance. In
this case the words in particular are to be read as falling within the scope of the
previous test. When that test is applied, adverse impacts are accepted by all to
arise in this case. The Mayor is simply wrong to argue that the policy is satisfied
despite acknowledged harm to the WHS.
9.82 A similar error is made in respect of Policy 7.8393 which applies to heritage
assets generally. It states that development affecting heritage assets should
conserve their significance. Again, the Applicant rightly concedes that there
would be conflict with this policy because to harm is not to conserve. The Mayor
however has argued that even though proposals cannot cause harm and still
preserve, they can cause harm but still conserve under this policy. This is
apparently because (a) the IPLP and NPPF Glossary definition of conserve refers
to significance being sustained which allows for some harm to significance to
arise; or (b) the public benefits of the scheme may nonetheless mean it is
acceptable.
9.83 These interpretations are misconceived. In relation to (a) there is in ordinary
English no justification for distinguishing between preserve and conserve. There
392 CDC4 p. 299.
393 CDC4 p. 295.
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is no meaningful distinction between conserve and sustain which conceivably
allows harm to be caused whilst sustaining significance. As regards (b), from
wherever this approach is drawn it adds wording to the policy which is simply
not there. When this interpretation was applied in questioning to the moderate
harm which the Mayor considers would arise in respect of SotG, there was
simply no answer as to how this could possibly square with the conservation of
significance under the policy. The proposals would therefore breach Policies 7.8
and 7.10 of the LonP.
9.84 Policy 7.7 also requires that impact of tall buildings in sensitive areas should be
given particular consideration, including in the settings of listed buildings.
Where such consideration concludes that harm would be caused, no support for
the proposals can be derived from this policy. The policy also requires buildings
to enhance the skyline and image of London. If they cause harm to heritage
assets, by reason of impacts which arise (as in this case) from development on
the skyline then they do not enhance it and conflict with Policy 7.7 arises. This
approach accords with that taken by the SoS in the CC decision394. It should be
followed here. For similar reasons there would be a conflict with Policy CC3 of
the Hounslow LP. The Applicant also accepts a breach of Policy CC4.
9.85 Whilst HE leaves the judgement on overall compliance with the development
plan to the SoS, it is right to record agreement that the importance of breached
policies and the depth of conflict with them are relevant factors when reaching
that judgement. Breach of policy protecting the WHS, an internationally-
designated heritage asset of the highest possible significance, is accepted to be
capable of involving breach of the development plan as a whole. So too is
conflict wider heritage policy, particularly bearing in mind the multiple sources
of harm in this case. Given the permanent and irreversible harm held in
prospect by these proposals, there is ample scope for a finding that they would
conflict with the development plan taken as a whole.
9.86 Policy is also emerging at strategic and local level. The IPLP is to be given
significant weight given that it has reached EiP stage and it may be part of the
development plan by the time the SoS reaches his decision, so this eventuality
is addressed below.
9.87 Context is important here. It is agreed that the impetus for new policy on WHS
in the IPLP was concern expressed by ICOMOS that the existing plan was not
sufficiently effective to prevent negative impacts on WHS. The IPLP requires
that proposals conserve…their OUV, including the authenticity, integrity and
significance of their attributes.
9.88 Against this background, the Mayor again posits that harm to the WHS is
consistent with the conservation required by the policy. To advance this
misconceived proposition, and thereby undermine the rationale of the policy at
such an early stage in its application, is of significant concern. The
acknowledged harm in this case unquestionably causes a breach of this policy.
9.89 The same point applies to Policy HC1. This policy requires that proposals
affecting heritage assets and their settings should conserve their significance.
394 See CDI4 [23] and [20]. See too the approach to policies 7.8 and 7.10 in the Westferry Printworks
decision at DL [41].
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Indeed, the same paragraph of HC1 advises that proposals should avoid harm
which, on the Mayor’s own policy wording, contradicts his interpretation (of both
published and emerging policy) that allows harm to be equated with
conservation. There are clear breaches of the heritage policies in the IPLP.
9.90 Tall buildings policy has also moved on. Under Policy D9 proposals should make
a positive contribution to the existing and emerging skyline. This would be
breached, as explained above. Buildings in the setting of a WHS must preserve,
and not harm, the OUV…and the ability to appreciate it. Even on the Mayor’s
own approach, which at least assumes preserve means no harm, that must
mean conflict with the policy.
9.91 The policy also requires that proposals should avoid harm to the significance of
heritage assets more generally, but recognises that this requires clear and
convincing justification demonstrating that alternatives have been explored and
that there are clear public benefits that outweigh that harm. This is addressed
further below, but even at this stage there are clear breaches of heritage policy
in the IPLP which add to the conflict with development plan policy as set out
above. If these policies are formally published by the Mayor they would then
plainly amount to a conflict with development plan policy even if existing
London Plan policies fall away.
9.92 Emerging policy at a local level is set out primarily in the GWC LPR. As above, it
is common ground that this review should be given minimal weight, given its
stage of preparation and the objections made to it by parties including HE.
Suggestions in the evidence that further harm in views from RBGK or towards
SotG is inevitable are therefore misplaced and premature. If any weight is to be
accorded to this emerging policy, it is in fact against the scheme.
9.93 Other material considerations include the Richmond LP, as well as the WHS MP.
Both contain policies which would be breached by these proposals. These
policies would also be breached. The MPlan is to similar effect. These policy
conflicts are also to be marked against the scheme.
9.94 The NPPF is obviously an important material consideration. HE recognises that it
contains an established balancing exercise between less than substantial harm
and public benefits. It leaves the assessment of benefits to the Inspector and
the SoS, but in the light of evidence that has been heard at the Inquiry asks
that the following issues are considered.
9.95 First, it is important that the statutory presumption in favour of the
development plan, properly interpreted, is applied. The Mayor has not done this
correctly. Second, when ascribing relevant weight to extant and emerging policy
and the balancing exercise (including public benefits) in the NPPF, it is
necessary to bear in mind the protection to heritage assets, in particular the
WHS, which the IPLP, prepared in the context of the NPPF, is intended to
provide. If recently examined policy is intended to assuage the concerns of
ICOMOS about harm to the OUVs of WHS in London, great caution should be
exercised when considering whether to allow development contrary to that
policy at such an early stage in its application.
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9.96 Third, the IPLP requires developers proposing tall buildings to demonstrate that
alternatives have been explored395. This policy follows on from HE guidance on
tall buildings which suggested that providing a clear and convincing justification
for any harm may involve the examination of alternative designs or schemes396.
9.97 Notwithstanding this guidance, the relevance of alternatives was also accepted
by the SoS in the CC decision; and these are not restricted to consented
schemes397. There is no reason why a similar approach should not be taken
here, particularly now that IPLP policy requires an alternatives assessment.
Indeed, the Applicant has chosen, belatedly, to provide a note on alternative
scheme designs398.
9.98 The IPLP policy is accepted by the Mayor to impose an obligation on the
developer to produce evidence of attempts to see how other options could avoid
or significantly reduce harm and deliver benefits of a similar order. Further, it is
not necessary for the benefits to be exactly the same as those which could arise
from the scheme as proposed.
9.99 Against this context, we ask that the evidence provided by the Applicant is
scrutinised carefully. The Applicant accepted during the Inquiry that it had not
carried out the exercise of looking at whether an alternative development
could avoid harm to the WHS and other heritage assets. This perhaps explains
the production of the late note; nonetheless the note gives the impression of a
hasty and inadequate retrofit of an alternatives assessment onto a design
process that is now being exposed, not least for relying on heritage advice that
the Applicant now concedes to have been wrong.
9.100 The note399 includes an alternatives assessment of a 12-storey scheme400
which assumes (a) the maintenance of a height differential between blocks at
current levels; and (b) no change to the layout of the scheme401. It is wholly
unclear why this extent of height difference is necessary when set against
potential reductions in heritage harm. There are no visuals to assist. The
failure to consider any change in the layout of the scheme is also flawed, not
least because we have been told that the proposals substantially overprovide
for open space. The Applicant has already accepted that the scheme is not as
far as it is concerned the only high quality design solution for this site, and
there appears to have been no effort to meaningfully test this view to see if a
scheme could be devised to avoid or significantly reduce the harm whilst
395 CDC5A p150.
396 CDG10 [5.5]. See s3 above and note the reference to cumulative harm. See too CDG8 at [26]/8.
397 CDI4: “36. The Secretary of State considers that there are benefits to be provided through the
creation of workspace, and in terms of supporting economic growth and productivity. However, he
considers that it could be possible for an alternative scheme with lesser impacts on designated heritage
assets to also provide benefits of this type. For example, the Citadel scheme, should it proceed, would
offer benefits in terms of job provision, and would comply with the Council’s emerging policy for this
area” [emphasis added]. In that case the reference to alternatives was made in the context of a
particular type of benefit but the Secretary of State was generally considering alternative schemes and
so the approach is of wider application.
398 Within the Note on “Response to Inspector’s Further Questions, 27/1/20”.
399 Ibid
400 See [5.1-3] and Appendix 1b.
401 The same assumptions are made in the viability note.
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providing a similar level of benefit. No full and transparent options analysis has
been carried out.
9.101 Another aspect of the note deals with whether the Applicant could divert the
grant it receives for this scheme under a strategic partnership deal with the
GLA, which aims to achieve 60% affordable housing across its portfolio of
London sites. The note still does not adequately resolve this issue.
9.102 It is critical that the SoS appreciates the scope and extent of harm that would
arise as a result of this scheme, and the importance of this decision for the
future of Kew Gardens and the CAs nearby. The SoS needs to apply
development plan policy and have regard to newly prepared IPLP policy which
has been specifically designed to address ICOMOS concerns about the
protection given to London WHSs. This case is an early test of that response.
The advancement of London as a world capital, or of the GWC as an OA, does
not make continually creeping harm to these (or other) heritage assets
inevitable or acceptable, however many developers exert pressure for tall
buildings proposals in this area.
9.103 Any harm to the significance of a heritage asset must be given great weight;
and the more important the asset, the greater the weight must be given to its
conservation. Any harm to the setting of a listed building gives rise to a strong
presumption against the grant of planning permission. In this case, there is
harm to several heritage assets, including national and international
designations of the rarest and most exceptional importance. Further harm
would arise to heritage assets of the highest significance at the WHS and the
Grade I Orangery; and to highly valuable CAs which are unique in maintaining
a link with London’s riverine and village history, including the SotG where the
harm would be particularly significant. Harm would also arise to the setting of
listed buildings in these areas. This accumulation of harm is of serious concern
to HE. The greater the weight that is accorded to the harm that would result
from this scheme, the greater the weight of benefits that are required to
provide the clear and convincing justification for its approval.
Additional comments
9.104 HE confirmed402 that the High Court decision does not amend its position as set
out in evidence to the Inquiry adding that any reference to the (CC) in the
Citroen proceedings can now be read as being subject to a challenge which
was dismissed by the High Court.
9.105 Following the the further delay to the IPLP, HE added that the heritage policies
HC1 Heritage conservation and growth and HC2 [WHS]s in the IPLP are not
subject to disagreement between the Mayor and the SoS, increasing the
weight that can be attached to them. Indeed, they should now be given
greater weight than the corresponding policies in the current LonP.
9.106 The adopted MPlan expands on the contribution setting makes to the OUV of
the WHS, thus strengthening the position taken by HE at the Inquiry403.
402 Response dated 25 March 2020
403 See references to s3.3 in PID10
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9.107 The Applicant referred to the Westferry decision in closing as an example of a
case where harm to heritage assets, including a WHS, was not an insuperable
obstacle to planning permission404. That reference is not apposite given the
quashing of the decision.
10 The case for the Royal Botanic Gardens, Kew (RBGK)405
The gist of its case is as follows. See closing406 for full details.
10.1 All 5 heritage witnesses agreed that the scheme would harm the significance of:
(i) the Grade I listed Orangery - an iconic407 and keynote building within Kew
Gardens; and
(ii) the OUV of the Kew Gardens WHS. It would intrude into the visual envelope
of the Gardens further harming historic assets of the highest significance which
regrettably408 are already adversely affected by other harmful development –
both existing and consented.
10.2 Setting is key to the OUV of a WHS409. The Mayoral SPG states that: [t]he
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 [OUV]410. The setting
of a WHS is not confined to its BZ411. Kew’s setting is a key part of its OUV and
so its significance. The CC Inspector found that: … the experience of the
designed and historic cultural landscape of Kew Gardens, the iconic architectural
legacy … is revealed and enhanced412 by the ability to appreciate these qualities
in a well preserved environment that still resonates with the sense of an
Arcadian escape from the world of intense city living413.
10.3 RBGK is the custodian of the WHS on behalf of the UK Government414. It is
deeply concerned by the harm that would be caused to the WHS and is wholly
unpersuaded that the scheme’s benefits would come anywhere near to
404 ID39 L&Q §24
405 Kew Gardens is used to describe the physical site of the gardens - The Royal Botanic Gardens, Kew -
which has the World Heritage Site inscription. In contrast RBGK is used to identify the legal entity that
now occupies and manages the site: The Board of Trustees of the Royal Botanic Gardens, Kew
406 ID39
407 Mr Dunn for HE described the Orangery as being part of Kew Gardens iconic architectural legacy and
one of the most important buildings in the Gardens; he indeed said that the Orangery represents the OUV.
See Mr Croft at section 6 for a more detailed account of its importance.
408 Dr Miele’s characterisation as used in his EinC.
409 In XX Dr Miele declined to accept this as a general proposition; but it is clear from the policy documents
including the Mayoral SPG, CDC16, that this is the position. Dr Miele’s refusal to accept this is telling. It
is part of a larger picture of his underrating the importance of the setting of Kew Gardens WHS.
410 See CDC16, §1.3
411 See e.g. also the Mayoral SPG at §3.19, the current MPlan at §8.1 (CDG6) and the PPG (CDC02)
§§26, 32 and 33 which refer to the BZ as forming only part of the setting. See also CDI4 §12.102.
412 Mr Dunn in XX by Mr Warren said that setting was integral to understanding of the OUV as a whole
and … setting is a fundamental component [of OUV]. Ability to understand depends to a large extent on
setting. Mr Croft agreed. In RX Mr Dunn added that it was best understood in its well-preserved setting
and because the attributes of OUV rely on setting.
413 CDI4, §12.103.
414 CDG21 section 8.2, and see further the section on Ownership and Governance of the Site in the
letters from the RBGK in Croft App F.
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outweighing such harm. Its objections draw support from HE415, LBC and
LB Richmond. The RBGK witness has unrivalled experience of the WHS. The
Applicant’s (and the Mayor’s) arguments must be treated with caution416 as they
would lead to a death of a thousand cuts. Other WHSs similarly threatened with
tall development outside their boundaries, including Liverpool Maritime
Mercantile City, are now threatened with de-listing. While the views of ICOMOS
are as yet unknown, it objected to the CC and Albany schemes and so is likely
to share HE’s concerns. Current detractors417 already cause significant harm to
the setting and OUV of the WHS and are at the very upper end of less than
substantial harm.
10.4 WHSs are inscribed because their OUV is of such exceptional significance as to
transcend national boundaries and to be of common importance for present and
future generations of humanity418. They are by far the rarest419 designated
heritage assets in the planning system and indeed on the planet. Article 4 of the
UNESCO Convention420 imposes important and emphatic421 obligations for the
protection, conservation, preservation and transmission to future generations of
WHSs. The UK Government gives effect to these obligations through the
planning system422. The NPPF confirms that WHSs are assets of the highest
significance423, they are the most significant of heritage assets and thus sit at
the top of the tree424 of heritage protection. The PPG says that the OUV of a
WHS set out in a Statement of [OUV], indicates its importance as a heritage
asset of the highest significance to be taken into account …425.
10.5 The current MPlan is an essential tool for conserving, enhancing and managing
[WHS]s and appropriate weight should be given to implementing the relevant
provisions within them426. It is expressly referenced in a number of the relevant
415 As the Government’s adviser on the historic environment and as a statutory consultee. Its views
should be given considerable weight and only departed from for good reason: R (Hayes) v York City
Council [2017] P.T.S.R. 1587 at §92. Dr Miele accepted in XX that is very rare indeed for HE to appear
at an inquiry to oppose a scheme.
416 Items (i) to (v) in §8
417 Agreed between the key stakeholders on the WHS Steering Group: Including HE, the LB of Hounslow
and the GLA – see their responses to the draft MPlan in Mr Croft’s App F
418 See the Operational Guidelines, CDG18 §49 and the PPG, CDC02, §28.
419 There are only 18 cultural WHSs in England and just 4 in London, compared to over 1000 conservation
areas, 19000 listed buildings, 150 registered parks and gardens and 150 ancient scheduled monuments:
see the LonP, CDC04 §7.30, p. 297.
420 The UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972
(the Convention). See the annexes to the draft MPlan 2019 (CDG21) for the text of the Convention.
421 In XX Dr Miele rightly accepted this description of the duties as being correct. See the draft
MPlan (p.9)
422 See the PPG, CDC.02, p 25 §26. With regard to the statutory designation process Kew Gardens
WHS has 56 individual listed buildings and structures, ranging from Grade I to Grade II: see Mr Croft’s
proof at §5.4.1.
423 CDC1 §194b) and see Dr Miele’s answers in XX.
424 See the NPPF, CDC1 §184, Dr Miele’s proof §6.2 and his answers in XX.
425 by … the Secretary of State in determining such cases … following call-in - see CDCO2, §26 headed
Why are World Heritage Sites important? and see also §32 World Heritage Sites are designated heritage
assets of the highest significance.
426 See the Mayoral SPG, CDC16 §2.21. We have already seen above the importance the Mayoral SPG
attaches to MPs in helping to define the setting of a WHS.
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Development Plan policies. The Statement of OUV (SOUV)427 emphasises the
historic designed landscape and architectural legacy that differentiate Kew from
other Botanic Gardens across the world428. The SOUV’s concern that
[d]evelopment outside this [BZ] may threaten the setting of the property429
goes to the integrity of the WHS. It identifies visual intrusion outside the WHS
BZ north of the River as a major threat to its setting, its OUV and
significance430. The Mayoral SPG recognises that Kew’s setting is different from
the other three London sites which are all far more urban: two are city centre
while Greenwich is close to Canary Wharf431. This SPG expressly acknowledges
that the character of the landscape is one designed to allow escape from the
City432.
10.6 The CC Inspector found that: [i]f one accepts, and I do, that the experience of
the designed and historic cultural landscape of Kew Gardens, the iconic
architectural legacy, and the living plant collections, is revealed and enhanced
by the ability to appreciate these qualities in a well preserved environment that
still resonates with the sense of an Arcadian escape from the world of intense
city living, then the visibility of the city beyond, would have something of a
harmful impact on the setting of Kew Gardens, and as a result, the OUV of the
WHS, and its significance and the significance of the [RPG] and the [CA]. The
Inspector went on to say [i]f one accepts that part of Kew Gardens’ significance
as a designated heritage asset is its status as an escape from the city, then any
intrusion by that city must be harmful.
10.7 The draft MPlan [now adopted] identifies the importance of its setting433 and
strongly emphasises Kew Gardens being separated from the everyday world
outside434. This sense of enclosure underpins the character and OUV of the
WHS435. Even after it was opened to the public the site retained an element of
427 After 2005, UNESCO required all WHSs to produce a SOUV, a Statement of Integrity and, for cultural
sites, a Statement of Authenticity, along with a description of Protection and Management
Requirements. The SOUV for Kew Gardens was submitted by the UK Government to UNESCO and
adopted in 2010 (CDG12).
428 See Mr Croft’s proof at §5.3.2 and his IC
429 The property here means the Kew WHS. Dr Miele suggested that this was standard wording for all
WHSs located within cities but Mr Croft in his IC explained what while the other 3 London SOUVs include
reference to threats to their setting the particular wording here is bespoke to Kew Gardens.
430 See Policy 3(h)
431 P35: Kew Gardens is some nine miles from central London, that it is the most self-contained of the
four sites and that its immediate surroundings are domestic
432 See p. 59.
433 See Croft section 5.7.4, and IC summarising that the setting provides: (i) an unbroken skyline
maintaining a sense of a world apart; which (ii) enables a visitor to appreciate and understand
landscape design; (iii) areas of openness and big sky that frame internal views; (iv) the backdrop to key
views and vistas across the Great Lawn; and (v) the backdrop to views of key buildings including the
Orangery. The setting of the Gardens makes a direct contribution to its OUV (its intrinsic significance)
including the key aspects of integrity and authenticity - and to our ability to appreciate and understand
the OUV. The site has a strong history of separation, of otherworldiness. This is maintained: 1) strong
boundaries – walls and planting (RBGK’s responsibility) and 2) clear skies through absence of
development – the responsibility of planning decision-makers. Failure of either of these two aspects will
degrade the intrinsic design significance of the site and its authenticity/integrity.
434 CDG19 p 21.
435 CDG18.
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privacy436. It cannot credibly be argued that the visibility per se of tall buildings
within Kew Gardens is not harmful to its significance, and attempts to argue
otherwise should be rejected.
10.8 All five heritage experts disagree only on the gradation of harm within less than
substantial under the NPPF. This is partly due to failing to properly assess
cumulative harm. They also agreed that any harm, any at all, to the significance
of the Orangery and to the OUV of the WHS, must attract very great weight
given that the Kew Gardens WHS is an asset of the highest significance437 and
that wherever there is any less than substantial heritage harm requires a clear
and convincing justification. As they all agree that the scheme will harm the
OUV of the WHS, it cannot protect, preserve, promote, conserve or enhance
it438. In particular, it would conflict with 3 policies: (i) Policy 7.10 of the London
Plan (LonP); (ii) Policy HC2 of the IPLP; and (iii) Policy CC4 of the HLP439. The
contention that a scheme which harms the significance of the WHS at the same
time sustains it440 only needs to be stated to see that it is fallacious. One cannot
avoid the conclusion that there is a breach of Policies 7.10, HC2 and CC4 by
arguing that these need to be read in the light of the NPPF, as shown in the
Westferry Appeal Decision441. Where there are breaches of policies, as there are
accepted to be here, the decision-maker has to judge whether there is
compliance with the Development Plan overall442.
10.9 There are a number of existing tall buildings, mostly north of the River in
Brentford, which already harm the visual envelope of Kew Gardens443. This case
focusses on the Orangery and associated Great Lawn, and so the buildings most
relevant are the Haverfield Estate Towers, the Kew Eye444, and the
Waterworks/British Gas Development445. These all detract from the setting of
the WHS and harm its OUV446. Two other harmful consented schemes are: The
436 Ibid p 22 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. And on the same page
When industrial development in Brentford threatened to intrude upon the gardens, the Directors
launched successive campaigns of tree planting to shut them out, with the secondary effect of shutting
out the Thames from most of the Gardens and increasing the sense of seclusion and enclosure. See
further Mr Croft’s proof at section 5.7, and see below - this was never fully successful.
437 See the NPPF §193, CDC1, and see the answers of Dr Miele and Mr Griffiths in XX.
438 Various policies contain these requirements.
439 Dr Miele (rightly) accepted conflict with all three of these policies. RBGK also says that there are
breaches of Policy 7.7 and 7.8 of the LonP, HC1 and D9 of the IPLP and CC3 of the HLP.
440 Mr Griffiths alone.
441 Which is referred to in relation to the approach of the Secretary of State on policy. It is not a similar
case on the facts. In XX Mr Griffiths confirmed that his analysis required him to disagree with the S/S’s
approach in the Westferry appeal decision to Policy 7.10 being breached despite finding it met NPPF §196.
442 R. (Cummins) v Camden LBC [2001] EWHC Admin 1116 Ouseley J. at §§160 – 165. Factors to
consider include: (i) the importance of the policies which are complied with or infringed, and (ii) the
extent of compliance or breach.
443 These are listed in the draft MP. See CDG21, Annex D, pp. A77 – A82.
444 Also known as the Wallace house development approved in 2005. The adverse impact was noted in
the UK Government’s 2014 Periodic Report (CDG19). RBGK objected at the time. It was referred to at the
CC inquiry as the Kew eye-sore.
445 Very close to the Haverfield Estate, and also known as the Hyperion, Application ref 00657/B/P15.
RBGK objected citing concerns about jeopardising the WHS nomination, then in progress. In the ICOMOS
site evaluation CDG14 there is reference to the adverse effect of this 16-storey development which had
by then been granted permission.
446 All of these can be seen in the photographs in Mr Croft’s App C.
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BFC447; and The Citadel448. Schemes in the pipeline449 include the CC; Albany
Riverside; and Hudson Square.
10.10 Even ignoring pipeline projects, the existing and consented schemes harm the
setting and significance of the Orangery and the OUV of the WHS. Visual
intrusion from these, and the threat of others, has long been a concern in
relation to the WHS450. The RBGK CA Appraisal451 lists under Problems and
Pressures: Development pressure which may harm the balance of the river and
landscape dominated setting, and the obstruction or spoiling of views, skylines
and landmarks.
10.11 The draft MPlan452 raises cumulative harm from existing tall buildings and
other proposals. Under Cumulative Impact/Harm, it sets out the significant
harm to the setting and OUV caused by the current detractors. It finds, in
NPPF terms, the scale of existing harm is at the very upper end of less than
substantial harm, and very close to substantial harm, adding that Additional
harm must be understood as being cumulative with existing453. It follows that
any built form seen outside Kew Gardens is harmful per se; existing tall
buildings are significant negative detractors; they should not be used to justify
more of the same; there is a particular concern around cumulative harm to the
WHS.
10.12 Cumulative harm is relevant to the setting of any designated heritage asset454.
Its importance is much greater for WHSs. The Mayoral SPG highlights the
importance of cumulative impacts455. This includes impacts that result from
incremental changes caused by past, present or potential developments,
noting that there may be a tipping–point beyond which further development
would result in substantial harm to the OUV, authenticity and integrity of the
[WHS]. HE’s Advice Note 4 on Tall Buildings456 says each building will need to
be considered on its merits, and its cumulative impact assessed, and that
[c]areful assessment of any cumulative impacts in relation to other existing tall
447 Under construction with the cores already overtopping the Orangery in some views as well as from
the surviving areas of the Great Lawn. RBGK objected to this development; it may not have been
appreciated that it would overtop the Orangery, so the officer report is silent, and no visualisations were
produced; and the benefits were completely different. Dr Miele in XX accepted that this was harmful.
448 This consented scheme has been implemented but not built. It is for the same site as the proposed
CC. The CC Inquiry was told that it was unviable. The Inspector took the view that it probably was
unviable but that [i]t cannot be ruled out completely and the possibility of it coming forward is
something that needs to be borne in mind448. It was consented before the WHS was inscribed; the
officer report omits possible impact on the setting of the Orangery, or that it would overtop this;
another harmful mistake which may or may not be built. Dr Miele in XX accepted that this would be
harmful.
449 CDG21 p A83. See also footnotes 123-126 and ID 6.
450 See detailed history at §§47-49
451 Which is broadly co-extensive with the WHS designation, see CDG7.
452 See Annex D, pp A77 – A83 and pp72 – 73.
453 CDG21 p73 §13.3.4
454 HE’s Guidance on Setting [CDG09 pp 2 & 4; and §§32 and 36] says454 [w]hen 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 [w]here
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 ….
455 CDC16, §5.31.
456 CDG10, at §3.8. See also the checklist on p8
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buildings and concurrent proposals will also be needed to fully understand the
merits of the proposal. The existence of a built or permitted tall building does
not of itself justify a cluster or additions to a cluster457.
10.13 There are 3 possible approaches to cumulative harm: assess the existing and
proposed together; assess only that proposed; or rely on the existing as the
baseline for the proposal. Policy and guidance dictate the first. The Applicant
and The Mayor rely on the third. The potential for harm from this incremental
approach is illustrated by the photographs of the Greenwich WHS 40 years
apart458. If all the Docklands development had been applied for in one go the
level of harm would be at the very least touching substantial; but it came bit
by bit. The same is now sought to be done here. We are teetering on a
tipping-point. The threat of more development on the back of past tall
development has long been articulated as a key threat to the OUV of this WHS.
The approach taken by the Applicant and the Mayor would cause the death of
1000 cuts for the OUV of Kew Gardens WHS459. There have already been a
number of cuts inflicted, this scheme adds another.
10.14 Turning to the key importance of the Orangery, and its setting, this was built
in the 1750s and is one of the few remaining buildings designed by Sir William
Chambers and a rare but integral surviving remnant of Augusta’s Gardens460
which stood on the northern edge of Frederick’s Great Lawn. It is an important
building in the history of Kew Gardens461. While the WHS contains a large
number of listed buildings only six of these are Grade I listed; it is specifically
mentioned in the SOUV462. The MPlan describes it as both a keynote building
within the WHS and an iconic building463. The CC Inspector’s approach was
that because that scheme would harm the setting, and so the significance of
the Orangery, it would also harm the OUV and significance of the WHS, and
457 See §§4.6 and 4.7. See also CDD07, p. 39 A small number of existing developments, such as the
Brentford Towers and the Kew Eye, are visible from within the registered parks and Kew Gardens WHS
and detract from their setting. These developments do not set a precedent for future tall building
development but instead highlight the sensitivity of these important heritage assets.
458 ID12
459 This point was made by RBGK at the CC inquiry when attention was drawn to the officer report for
Brentford FC development saying that the proposed development was only visible in: a fraction of the
landscape and architectural features at Kew Gardens. It was then pointed out that the same formula was
repeated for the Citroen site, Capital Interchange Way, and Watermans [Watermans is the Albany
Riverside site]. Repeating that formula in case after case means that more and more of Kew Gardens will
suffer from visual intrusion: CDI4, §7.66.
460 CDG21 section 2.1, p12 §4, and pA24 Of the work of these great Georgian designers, Chamber’s work
on Kew Gardens is the most identifiable in the modern landscape. His unique Chinese-inspired Pagoda is
the most obvious survivor of this era … along with the Orangery, once the largest greenhouse in England.
It was the principal architectural feature in this area of Augusta’s gardens, see Mr Croft’s proof §6.2.5.
461 CDG21, A71.
462 CDG12, p. 49, under Brief Synthesis it is said Elements of the 18th and 19th century layers including
the Orangery, … convey the history of the Gardens’ development from royal retreat and pleasure
garden to national botanical and horticultural garden before becoming a modern institution of
conservation ecology in the 20th century.
463 See current MP, CDG6, §3.5.3, 3.9.17 and 3.9.20 and draft MP, CDG21, p. 14 referring to it as one of
the Key structures and A33 referring to it as one of iconic buildings of Kew Gardens. Dr Miele in XX
accepted both.
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the significance of the RPG, and the CA464. The MPlan, following this approach,
now notes that the Orangery makes a direct contribution to the OUV465.
10.15 The Great Lawn is a rare surviving open area (for Kew Gardens) within the
Palace grounds in front of the Orangery466. While it survives in a much-reduced
form, this is a remnant of Frederick’s garden, lay in front of the White House
and the Orangery467 and the setting it provides for the Orangery is
important468. This includes469: (i) its original development as part of Augusta’s
garden; (ii) its re-use by Decimus Burton and Nesfield as part of the Victorian
gardens; and (iii) its continued role in the modern landscape. This was
recognised by the CC Inspector470.
10.16 The debate as to whether View 30 is a designed view turns on whether the
Orangery would have been visible from the Great Lawn in the eighteenth
century. The same debate with the same evidence arose at the CC Inquiry471.
Assertions that the Inspector did not reach a conclusion on intended views are
not correct472. It is tolerably clear that he found that views of the Orangery
across the Great Lawn were important designed views473. Today, View 30 is
located on what remains of the Great Lawn on a well-used path and close to a
crossroads474. There is no question but that what remains of the Great Lawn
provides an important part of the setting of the Orangery today, the issue is
whether that was also true historically so that greater weight should be given
to the harm caused by this scheme475.
10.17 As above, there are existing detractors that already harm views of, and the
setting of, the Orangery. At the time of the CC Inquiry, while the Haverfield
Estate Towers would have been clearly visible from View 30, neither these nor
any other development overtopped the Orangery until one got to near the
464 See CDI4 §12.113; this was accepted by Dr Miele at §1.15, although§§4.36 and 4.37 seems less
clear on this.
465 CDG21, p. 23, §viii. And §vi p 25.
466 CDG21, p. A41.
467 Historic illustrations show people promenading freely across the lawn as well as walking on set paths.
Defined by trees, this was an enclosed area of open space, heavily separated from the world outside.
468 CDG21, A55.
469 See Mr Croft’s proof at section 6.2.4.
470 Who wrote that the Orangery: is a very important part of Kew Garden’s iconic architectural legacy,
and that it has a central place in the designed landscape; … views towards the Orangery from and
around the Broad Walk, across the Great Lawn, or what remains of its original conception, are essential
to an understanding of the place of the Orangery in the designed landscape. As such, they are integral
to the contribution setting makes to its significance. CDI4 §12.114-115
471 Mr Croft, who was also a witness at the CC inquiry, explained that the evidence before this inquiry is
identical to that at the CC inquiry save for Mr Stamper’s evidence.
472 See Dr Miele §§2.46 – 2.56 and Rebuttal Appendix 2. Mr Griffiths was wrong to suggest that this
issue was debated more at this inquiry than at CC.
473 See the previous quotations from the Inspector’s Report. In the nomination document there is
reference to the Orangery being built as an addition to the White House (now demolished) and the
classical style of the Orangery reflected its partner and that [b]oth buildings overlooked the Great Lawn,
which once dominated this part of Kew Gardens. In the Site Conservation Plan 2002 (Section 3, p 18) it
is said that the significance of the Great Lawn is that this [p]rovides the setting for the Dutch House …
and the Orangery ….
474 See CDA 14, p. 103; viewpoint 30 is described in the ES as Crossroads within gardens, south east of
Treehouse Towers Play Area, Royal Botanic Gardens Kew.
475 See the detailed arguments over this in Kew’s closing §§ 79-82
https://www.gov.uk/planning-inspectorate 92
Broad Walk to the east476. This scheme will remove one more view of the
Orangery from which currently there are no other modern buildings visible
overtopping it and again shows the flaw in the Applicant’s approach which fails
to have any proper regard to cumulative impact.
10.18 Given the importance of the Orangery and Great Lawn to the OUV, harm to its
setting also harms the OUV of the WHS. Attempts to downplay this harm
because it only affects one part of a large WHS should be rejected477. The
calibration of harm by the Applicant and the Mayor is too low because of their
failure to properly deal with cumulative impact and understand the importance
of setting to the OUV. Judged on its own, the impact of the scheme on the
OUV is just above the mid-point of less than substantial478; cumulatively it is at
the upper end of less than substantial. Applying the Mayoral SPG and the PPG
policies on cumulative assessment, the harm based on the existing situation
should be identified. One should not take existing tall buildings as a form of
acceptable baseline that establishes a character for future views. Identifying
that the scheme causes harm in addition to existing recognised harm, the total
harm including the pre-existing harm and potential harm associated with
consented (but not yet built) developments should be assessed. All of this
development should be taken together as being at the very upper end of less
than substantial479 a view which is supported by the draft MPlan480. The impact
on the Orangery as an asset is a discrete one in its own right. The impact on
the WHS is different, albeit that it would also be affected by the impact on the
Orangery.
10.19 The CC Inspector commented 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 lost481. RBGK strongly objects to this
observation which is founded on the previous paragraph in his Report482 which
sets out policies for the development of the [GWC] as an [OA]. However, the
IPLP now delegates heights to LPAs while it strengthens protection for WHSs.
Emerging LBH policy is at an early stage. The extant consent for the Citadel is
not viable and should no longer be used as any kind of reference point483. The
application to which this Inquiry relates was called in after the CC decision.
10.20 It is apparent that no regard was had to the potential impact on the WHS in
the course of the design of this scheme as: the architects relied entirely on
mistaken advice484; the AVRs were obtained late on; the architect was
unaware of the MPlan485; the DAS and its Addendum are silent on possible
476 Here the Haverfield Towers do overtop the Orangery. There are also views of the Steam Museum
tower which, although listed, intrudes into the visual envelope of the Gardens and adds some further
harm.
477 This featured prominently in Mr Warren’s XX of the heritage witnesses.
478 See Mr Croft at §5.8.17.
479 This is not inconsistent or out of line with Bedford
480 See above and see CDG21 §13.3.4
481 §12.107, CDI4
482 §12.106, ibid.
483 See CDD7 Great West Corridor Masterplan and Capacity Study, note on p. 136: Any new scheme of
the height of the Citadel must now provide significantly more public benefits than the Citadel scheme to
outweigh the harm such height now represents to the World Heritage Site.
484 By JLL who found impacts to be acceptable
485 Confirmed by Mr Connell in XX by Mr Maurici
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impacts on the WHS; the design was influenced by the original scheme for 1-4
CIW which was rejected on grounds of excessive height and impact on the
WHS486; the design process proceeded on the false basis that overtopping the
Orangery was harmless.
10.21 The harms here are to historic assets of the rarest kind and of an exceptional
nature. The benefits are of the common or garden variety487. The Applicant has
failed to justify why alternative developments on the site could not deliver a
similar level of public benefits without harming the WHS and the Orangery.
The HE Advice Note on Tall Buildings488 is important because it states that
what is required is clear and convincing justification for the cumulative
harm489. Applying that guidance, any suggestion that the benefits could
outweigh the cumulative harm490 is without merit.
10.22 The approach of the SoS in the CC appeal was to consider whether it was
possible for an alternative scheme with lesser impacts on the WHS to provide
similar but not the same benefits. Although this approach was in the context of
the consented Citadel scheme, it is clear from the SoS’s decision that there
does not need to be a consented alternative in place491. The same
considerations must apply here. There has been no proper exploration of, or
defensible justification for rejecting, a less tall scheme that would have no
impact on the WHS and would deliver similar albeit not exactly the same
benefits. The burden to show there are no alternatives that would deliver
similar benefits lies with the Applicant492.
10.23 The evidence on alternatives has emerged in an unsatisfactory manner493.
Alternative schemes limited the height to 12 or 15 storeys, there were no
AVRs, it remains uncertain by how many storeys the scheme would need to be
reduced in order not to be visible overtopping the Orangery. The ES was silent
on why the 12-storey scheme was rejected. Limited evidence494 claimed that it
486 See Mr Brown’s proof and his answers in XX.
487 In so far as the design quality is considered benefit: (i) the features visible in the WHS, its height
and spread, are the source of the harm; and (ii) limited weight can be given to this as all tall buildings
are required by policy to be of a high quality design.
488 CDG10 §5.5, Mr Croft at §§ 3.2.40–3.2.42 and Dr Miele in XX
489 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 be able to find a clear and convincing justification
for the cumulative harm (see §5.5, emphasis added). In XX Dr Miele was stumped by this and had to
argue that HE’s advice was wrong. This advice dates back to 2015 and he accepted in XX he had produced
no appeal decisions that suggested that HE’s advice was in this regard erroneous or contrary to the NPPF.
490 As properly assessed by Mr Croft: §5.8.20
491 CDI4, §36 The Secretary of State considers that there are benefits to be provided through the creation
of workspace, and in terms of supporting economic growth and productivity. However, he considers that
it could be possible for an alternative scheme with lesser impacts on designated heritage assets to also
provide benefits of this type. For example, the Citadel scheme, should it proceed, would offer benefits in
terms of job provision, and would comply with the Council’s emerging policy for this area …
492 See CDA5, Policy D9(D) p 150 and Mr Croft’s answers in XX, and see also Ms Randell’s oral evidence
in which she agreed this was where the burden lay.
493 much emerging only in oral evidence or the late note dated 27 January 2020 entitled Response to
Inspector’s Further Questions. This evidence should have been included in the ES and/or L proofs
494 Mr Brown §6.30, oral evidence and XX. Para. 6.36 says L&Q highlighted that if the scheme was
limited to a maximum of only 12 storeys it would result in the following: (1) A loss of 89 homes (2) No
affordable housing.
https://www.gov.uk/planning-inspectorate 94
would not have maximised the use of the land, but oral evidence confirmed
that such a scheme was not unworkable or unviable495.
10.24 The belated Annex496 has no change to the layout, maintains the height
differential between blocks and falsely reduces the quantum of development.
There is no emerging policy requirement for a landmark building on the site. At
1-4 CIW the developers were able to produce a similar number of units and
50% affordable housing with lower heights. There has been no proper
justification provided as to why this is not possible on the Citroen site. Where
the harm is to heritage assets of the highest significance, and the benefits
unremarkable, there has been an obvious failure to properly consider if harm
could have been reduced or avoided while still providing similar benefits. This
is a failure to provide a clear and convincing justification for that harm.
10.25 The way the Mayor came to resolve to grant permission was a sorry tale497.
This is relevant because the Applicants prey in aid the Mayor’s support498; but
this support should be given no real weight as the Mayor did so having full
regard to the impact on heritage assets. The failures to properly consider
matters are legion499. No weight can be given to the Mayor’s support for this
scheme in the light of the poor decision-making processes.
Conclusion
10.26 For all these reasons planning permission should be refused.
Additional notes
10.27 Finally, the Applicant now argues that RBGK could plant trees500 at the rear of
the Orangery to block views of this scheme. This was unfairly raised at the end
of the Inquiry. There is no evidence that this would be successful, it is wrong
in principle, such trees would take decades to establish, and they would need
to be managed including for losses.
10.28 This proposal is rushed and poorly considered. It does not offer a solution but
shows a lack of understanding as it: proposes mitigation that it is unable to
deliver; misunderstands WHS MPlan policies; proposes inappropriate
specimens in an inappropriate location; and, does so by way of procedural
injustice.
10.29 The mitigation is an acknowledgement that harm would be caused but it can
neither be delivered nor enforced. The only way to do so is with the agreement
of Kew: this will not be forthcoming, and the proposed mitigation will not be
delivered. Mitigation could be offered by the Applicant, but it prefers to shift
the responsibility to Kew.
10.30 With regard to the MPlan, while tree screening is referred to, this only supports
tree screening in a limited role and in limited areas. It also notes that the use
of trees as screening cannot be relied on to protect against inappropriate
495 Mr Brown in XX
496 ID37 Response to Inspector’s Further Questions on which there could be no XX
497 See Kew’s opening
498 Mr Connell §§2.13 and 2.14
499 See §107 (1)-(10)
500 This is covered in the original closing and an additional note. My summary covers both.
https://www.gov.uk/planning-inspectorate 95
external development. It requires boundary planting, but within the gardens
planting is driven by botanical interest, historic landscape design and
operational needs. Consequently, the area proposed for screening is not
suitable501.
10.31 There are also challenges with managing screening trees, including: pests and
disease, climate change, and active tree management/health and safety. The
reference to the CC report has been taken out of context.
10.32 The scheme would result in planting inappropriate specimens in inappropriate
locations, compounding the errors referred to above regarding the validity of
the mitigation and the misinterpretation of the MPlan. It would misunderstand
the planting strategy502. Kew’s specialists have raised further issues503.
As above, raising the proposed mitigation so late in the Inquiry amounts to
procedural prejudice. It does not come out of cross-examination504 and Kew
does not have the resources to recall a witness, even with a costs application.
If the Inquiry is reopened, it would be as a result of the Applicant’s
unreasonable behaviour.
Further Responses
10.33 Following rejection of the CC High Court challenge, any reference to this can
now be read as no longer subject to challenge. In addition, the ability of the
SoS to reach the conclusions that he did, contrary to the recommendation of
his Inspector, has been specifically endorsed by the Judge.
10.34 With regard to the delay to the IPLP, its heritage policies HC1 Heritage
conservation and growth and HC2 [WHS]s are not subject to disagreement
between the Mayor and the SoS, and therefore very significant weight can be
attached to those policies notwithstanding the delay in adoption.
10.35 The WHS MPlan’s adopted status makes it a key material consideration for
decision-makers and provides clarity on the agreed views of the WHS Steering
Group, including those of the GLA, LBH, HE and RBGK. As set out in PPG and
the LonP, the adopted MPlan is a significant material consideration for the
application505.
10.36 Appendix D506 provides a summary of the setting of the Orangery that
addresses and provides an agreed position on the discussions at the Inquiry
relating to its relationship with the Great Lawn: The Orangery is an important
building in the history of Kew Gardens. Alongside the White House, and later
Crenelated Palace, it was the principal architectural feature in this area of
Augusta’s gardens. It was designed to be seen across the Great Lawn and Lake
as a key designed architectural element in the 18th-century landscape of Kew
Gardens. It was later adopted by Decimus Burton in his geometric design as a
key feature along the Broad Walk, drawing the eye down the walk (when
501 See the plan at Appendix 1 of the WHS MPlan Setting Study
502 In its Living Collections Strategy [available online at https://www.kew-gardens/plants/living-collection]
– see extract at Appendix 3 to the Kew response
503 Paragraphs 5.6 to the Kew response
504 Ibid 6.3
505 PPG §34 and LonP Policy 7.10 and IPLP HC2 - item D [as above]
506 PID9 p138
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coming from the Palm House) and providing a visual barrier to views from the
Little Broad Walk until the junction with Main Broad Walk was reached from
the entrance gates.
10.37 The adopted WHS MPlan identifies that the Orangery is an element of Kew’s
historic legacy: Also constructed for Princess Augusta by William Chambers,
the Orangery (1761) was once the largest glasshouse in Britain. This was the
first of many glasshouses on the property, several of which were at the cutting
edge of architectural and technological design, and which together tell the
internationally significant story of glasshouse development over more than
250 years507.
10.38 RBGK referred to the SoS’s decision on the Westferry Printworks scheme508. It
was relied on solely to support its contention that there is a breach of LonP
Policy 7.10. This remains RBG Kew’s case. No part of the Order or the claim
relates, as far as we are aware, to the SoS being wrong in his conclusions on
Policy 7.10. Even if no weight is given to the SoS’s views in the Westferry
decision, RBGK’s approach is maintained on the policy’s wording.
11 The case for the West Chiswick and Gunnersbury Society (WCGS)
Its Chair’s statement509 was relatively succinct and so, other than minor alterations
for consistency in this Report, is reproduced here in full.
11.1 The fact that I have attended every day but one of this Public Inquiry attests to
the importance that I and the residents I represent - who live in the
surroundings of the Application site - attach to this matter.
11.2 Having studied the documents and listened attentively during the Inquiry, I wish
to record that we fully support the cases made by the Council and the Rule 6
Parties (HE and RBGK) and request that the Inspector record our endorsement.
11.3 Having listened attentively during the Inquiry, including to the responses given
by the Applicant’s and the GLA’s planning witnesses to my questions, I would
request that the Inspector take all these questions and responses into account.
11.4 In my short opening presentation510 I provided an indication of how the
proposed scheme would harm the quality of life of local residents in a number of
ways with respect to our immediate environment. I wish to emphasise here that
due weight should be given to the cumulative harm to existing townscapes
and heritage assets and to the amenity and quality of life of the existing
residential communities of the proposed scheme and others recently built, under
construction or consented in the East Brentford/West Chiswick area.
11.5 In questioning the Mayor’s witness, I drew attention to the error and
omissions511. The absence of any reference to the low-rise, high quality
townscape within the Wellesley Road CA to the east of the site is a serious
507 PID9 Section 3.2.2, page 26
508 At §41 of Counsel’s closing (ID32) the Inspector’s approach to identifying a breach of policy 7.10 is
clearly the correct approach given the actual wording of that policy
509 By Marie-Louise Rabouhans
510 ID7 (sections 6 and 7)
511 Miss Randell in her Proof of Evidence (8.29)
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omission. Openness of outlook is a very important component of residential
amenity in streets characterized as dense urban grid (as defined in the Council’s
Urban Context and Character Study) and within an area of public open space
deficit.
11.6 I questioned the need for yet more landmarks (defined as something that
stands out, helps orientation and sense of place). Promoting multiple landmarks
debases this once useful urban design concept. We are in danger of getting lost
in a dense forest of tall buildings - this will alienate rather than promote a sense
of place. The scale of the BFC Stadium and its surrounding residential towers is
such that it will not require any aid to wayfinding.
11.7 I also questioned reliance on PTAL as a measure of public transport
accessibility; it is an over-simplified tool. Whether one is 500, 50 or 5 metres
from a station is of no practical relevance if, on arrival at the station, one is
prevented from accessing the platform as happens at Gunnersbury Station
during peak periods. The same applies to the purported 2021 improvement in
PTAL due to increasing frequency of services. Indeed, without the necessary
major upgrade of Gunnersbury Station, an increase in frequency could
exacerbate the situation by increasing the time one is held in a queue.
Overground and underground trains in both directions share the same island
platform. Increasing the frequency of service will shorten the gap between
trains; it is the gaps which provide the opportunity to access the platform.
11.8 In considering the planning balance, the appellant and the GLA consider that
the public benefits of the scheme outweigh the harm. The degree of harm has
been fully covered by the other parties. I wish to re-iterate that the existence of
intrusive tall buildings such as those of the Haverfield estate or those under
construction around the BFC Stadium, is not a justification for more. To add to
the recognized harm caused by such buildings is to add insult to injury.
11.9 Turning to the weight to be given to the claimed benefits of the scheme, I
would draw the Inspector’s attention to the issues that I raised when
questioning the LBH planning witness512 and to the points made by him.
11.10 While specific design aspects of the housing may be deemed acceptable by
taking a flexible approach to standards for the residential units, in
combination, such flexibility will provide accommodation of very questionable
quality. For example, will future residents seeking to compensate for a lack of
sunlight/daylight by using their balconies appreciate having to ascertain the
ambient air pollution and noise in order to perform a risk/benefit analysis
before stepping outside? Rather than argue that such compromises are
necessary because of the high density and/or the hostile environment, I
suggest that they demonstrate that the density is too high and that parts of
the site are unsuitable for residential accommodation. These unsatisfactory
aspects are indicative of over-development. The over-delivery of 1-bed units,
especially in an area with a significant over-supply, will not produce a balanced
development; the resulting churn will not lead to community cohesion. The
aggressive pursuit of housing targets appears to be leading to an approach
that might be characterized as Never mind the quality, feel the width.
I raised further shortcomings of the scheme in relation to the Climate
512 Mr Baker
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Emergency in my questions to the Applicant’s witness513. These included the
additional energy demands for mechanical ventilation, air conditioning etc. and
the need for carbon off-setting. How can the UK Government hope to meet its
carbon-reduction targets if it approves new buildings which will lock us in to
unsustainable energy consumption for many years.
For AH and Market Housing, I would ask the Inspector and the SoS to take the
cumulative shortcomings of the housing into account when considering the
extent of the benefit and what weight should be given to it.
Moreover, since London is a single housing market, perhaps the Mayor should
consider lowering the LonP housing targets for those boroughs such as
Hounslow where many potentially available brown-field sites are located in
heavily polluted areas.
11.11 In considering the weight to be given to the benefit of the provision of a
nursery, I would ask the Inspector and the SoS to take account of the points I
raised on the health implications of its location, and that of the play space in a
position exposed to high levels of air and noise pollution. I would draw their
attention to Policy CI3 of the Local Plan and Policy GWC 3 of the LPR of the
GWC (Reg 19). The latter makes it clear that Where we are now is a very bad
place in terms of air and noise pollution and very poor levels of physical
activity.
11.12 In considering the weight to be given to the claimed benefit of Public Realm,
Landscaping and Pedestrian connectivity I would draw the Inspector’s and the
SoS’s attention to the questions I put to the planning witnesses514 concerning
the value and benefit of the public plaza. The plaza has been designed
apparently for two conflicting purposes – as a public space to be enjoyed by
residents of the new development and others with events taking place, market
stalls etc. and – to provide room for spill out before and after football matches
/connection between the BFC Stadium and Gunnersbury Station. The Applicant
and the Mayor appeared to be unaware that the latter is in direct conflict with
the draft Local Area Management Plan for the stadium and undertakings by
BFC to direct supporters away from the residential streets to the east and
south-east of the stadium/CIW. It appeared that no discussion had taken place
between the Applicant and the Club.
11.13 In cross-examining LBH515, reference was made to section 10 of the SotG CA
Appraisal for and to the tensions between a CA adjacent to an OA in a world
city. I would like to point out that 10.3 of this section states.
The bar for public benefits to exceed heritage harm is rightly set high and very
hard to reach, particularly where such development also impacts on Kew
Gardens [WHS]. Development should not seek to use public benefits as an
excuse for unimaginative consideration of planning context, but rather
demonstrate exceptional and innovative heritage-respecting design, which also
provides significant public benefit.
I think that we can all agree that London is a world city. It is of national and
strategic importance as our capital city. Its natural and historic environment is
513 Mr Connell
514 Mr Connell and Miss Randell
515 Mr Baker
https://www.gov.uk/planning-inspectorate 99
too important to be treated in a cavalier fashion. It should be conserved and
enhanced in accordance with the NPPF. While regeneration of the GWC is
important, the corridor is not, and must not become, the defining feature of
the wider area. The big attraction of this area for visitors as well as those who
live and/or work here is that, while easily accessible from Central London, it
has significant heritage landscapes and a beautiful stretch of the Thames
which, together with its predominantly low-rise buildings give much of it a
generous, open, almost rural feel. This is complemented by its compact
townscape of predominantly Victorian and Edwardian terraces, providing
homes to its well-established, thriving residential communities. The special
appeal of both is that they provide respite and retreat from the urban
environment.
A significant part of the pull of London is the great variety of what it has to
offer in terms of its built and natural environments. It is essential that
development enhances and maintains this rich tapestry rather than leads to an
homogenised city of poorly distinguished areas, sterile neighbourhoods and an
assortment of high-rise blocks, competing for attention as they dominate the
skyline.
So, my plea is that, as a world city, London
• provides its residents with homes of genuine high quality,
• understands the true value of its historic environment and
• pays full respect to its world heritage.
11.14 In conclusion, I maintain that the public benefits that would be delivered by
the scheme are not as substantial as claimed and would not outweigh the
harm that it would cause.
The West Chiswick and Gunnersbury Society believes that the Application
should not be allowed and we earnestly request the Inspector to report
accordingly to the SoS and for the latter to dismiss the Application and refuse
planning permission.
12. Written Representations
12.1 As well as a representation at the Mayor's public representation hearing in
July 2018, The Kew Society objected via a representation to the forthcoming
public inquiry, reiterating its objections. Its statement focussed on: Local
Context, Pollution, Building Height and Massing: effects on Local Heritage
Assets, Draft Brentford East Supplementary Planning Document, Impact on
Local Neighbourhood, Lack of Infrastructure and Public Transport.
12.2 A total of 8 responses were received from local residents516, including 7
objections and one query relating to the future of the adjacent leisure centre.
The following summary provides details of the issues raised in these
responses.
▪ Why flats and not houses for families?
516 CDB 01
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▪ This development is one of a number in the locality, and the combination
of these would place severe strain on infrastructure, especially transport.
▪ There is an aesthetic impact on the skyline from Kew Bridge.
▪ The buildings would be very close to each other and the amenity areas
would not bring any value to their residents.
▪ This would add further to congestion and parking in nearby streets.
▪ The proposed height of the new towers would be significantly out of
keeping.
▪ The proposal is too high, too dense, out of character with the surrounding
CAs and Character areas and would be a severe visual intrusion into many
valued views.
▪ The high level of pollution in the area makes it unsuitable for housing.
▪ The development threatens the existence of Fountains Leisure Centre.
▪ No development should be allowed prior to the adoption of the GWC Plan
and Brentford East Supplementary Planning Document (SPD)/The
application does not conform with the draft Brentford East SPD.
13. Conditions
13.1 The suggested conditions were discussed at the Inquiry before arriving at a
final agreed version517. These must be necessary, relevant to planning and to
the development, enforceable, precise and reasonable in all other respects518.
Following these discussions, I am satisfied that, for the reasons stated, all
these conditions meet the tests and, in the event that permission is granted,
these should be imposed as set out in the attached Appendix.
13.2 Under section 100ZA(5) of the T&CP Act 1990: Planning permission for the
development of the land may not be granted subject to a pre-commencement
condition without the written agreement of the applicant to the terms of the
condition. Accordingly, the Applicant confirmed519 agreement to the terms of
the pre-commencement conditions.
14. Planning Obligations
14.1 A Legal Agreement together with a Summary and explanation for the various
elements was submitted to the Inquiry520 as was a Compliance Note521
covering how the Agreement would comply with the Community Infrastructure
Levy (CIL) Regulations 2010. My conclusions are based on an assessment in
the light of the CIL Regulations and of NPPF§204, which sets 3 tests522 for such
obligations. Following discussions at the Inquiry, I am satisfied that the
517 ID20 and ID36
518 NPPF§206
519 ID38
520 ID30
521 ID18
522 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 101
obligations in the Agreement all comply with the CIL Regulations and the NPPF
and I have given weight to them in my conclusions.
14.2 A further obligation, in the form of a Unilateral Undertaking, essentially offers
to pay for tree planting within Kew Gardens with the aim of screening the
proposals.
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15. 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.
Main considerations
15.1 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 quality of its design;
iv. the benefits of the scheme with particular regard to housing and affordable
housing (AH);
v. any other benefits which might affect the overall balance, including to the
economy;
vi. whether the public benefits of the proposals would outweigh any harm
identified in the heritage balance;
vii. the National Planning Policy Framework (NPPF) and any other material
considerations;
viii. its consistency or otherwise with the development plan and the overall
planning balance.
15.2 In essence, the application turns on the balance between the harm to various
heritage assets and the public benefits, particularly of new housing and AH. The
heritage balance is set out in NPPF§196 although I agree with the parties who
felt there is nothing materially different about this or compliance with the
development plan. [3.11 6.3 6.5 6.93 7.3 7.48 7.53 7.65 8.30 8.33 11.3]
Heritage assets
15.3 The relevant designated heritage assets (as defined in the NPPF) include the
World Heritage Site (WHS) at Kew Gardens - which is also a Registered Park
and Garden (RPG); the Conservation Areas (CAs) at Kew Gardens, the Strand
on the Green (SotG) and Kew Green; and the numerous listed buildings within
them, notably the Grade I listed Orangery at Kew, the Grade II* Zoffany House
and the rows of adjacent Grade II buildings along the SotG , and those
surrounding Kew Green. There was general agreement about the significance of
the assets and the relevant policies from which any conflict might arise. [2.6 -2.9]
15.4 Parallels were drawn with the Chiswick Curve (CC) Inquiry and the parties made
many references to it. In his Report, the CC Inspector wrote: There is little I can
usefully add to what the parties have said about the significance, status, and
importance of the [SotG CA], and the listed buildings it contains. Here, the
same could be said not only of the SotG CA, but of Kew Gardens and Kew Green
as well. [1.7 6.33 8.13 8.16]
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15.5 There would be no direct harm to designated heritage assets. Rather, any harm
would be from the impact of the development on the significance of these
derived from their settings. It was common ground that there would be less
than substantial harm to the significance of the SotG CA and of the WHS –
expressed as its Outstanding Universal Value (OUV) – but disagreement as to
the degree of, or weight to, any harm to significance within less than
substantial. There was disagreement as to whether there would be any harm to
the Kew Green CA. [3.11 6.23 7.42 8.4 8.8 8.30 9.68 9.94 10.3]
Kew Gardens
15.6 As above, Kew Gardens is subject to a raft of designations, including that of
WHS, RPG and CA whose boundaries roughly coincide. In terms of heritage
value, it is at the top of the tree. Of particular relevance to this application, the
Statement of OUV (SOUV) refers to the Grade I listed Orangery. As the recently
adopted MPlan now notes, the Orangery is not only important to the OUV, but
its significance, and special interest, as a listed building overlaps with that set
out in the SOUV. The CC Inspector found that because that scheme would harm
the significance of the Orangery, it would also harm the OUV and the
significance of the WHS, RPG and CA. I have dealt with it in the same way. [2.6
2.7 3.22 3.34 6.30 6.40 7.30 8.11-8.12 9.6 10.2 10.6-10.8]
15.7 The evidence and closings from RBGK, including the Further Responses since
adoption of the MPlan, set out in detail the importance of the Orangery, both in
its own right and in its contribution to the OUV of the WHS. RBGK’s witness was
claimed to have unrivalled experience of the WHS and all this was essentially
unchallenged. Of the OUV’s attributes, the two that would be affected by the
proposal are: a rich and diverse historic cultural landscape providing a
palimpsest of landscape design, and an iconic architectural legacy. [3.23 5.3 6.23
6.35 9.7-9.9 9.15 10.1 10.14-10.15 10.37]
15.8 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 this landscape. 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. There was no dispute that the
scheme would affect the setting of the Orangery, and so the WHS as a whole,
and particularly from viewpoints around View 30. [6.30 6.41 6.47 6.48 6.93 9.2 9.15
10.5 10.6 10.10 10.19 12.12]
15.9 The CC Inspector found that the Orangery: is a very important part of Kew
Garden’s iconic architectural legacy, and that it has a central place in the
designed landscape; … views towards the Orangery from and around the Broad
Walk, across the Great Lawn, or what remains of its original conception, are
essential to an understanding of the place of the Orangery in the designed
landscape. As such, they are integral to the contribution setting makes to its
significance. I agree. [3.23 7.31 9.8 9.14 9.16 10.1 10.2 10.6 10.14 10.15]
15.10 RBGK gave evidence that the setting to the Orangery is important to the OUV
as it provides: (i) an unbroken skyline maintaining a sense of a world apart;
which (ii) enables a visitor to appreciate and understand landscape design; (iii)
areas of openness and big sky that frame internal views; (iv) the backdrop to
key views and vistas across the Great Lawn; and (v) the backdrop to views of
https://www.gov.uk/planning-inspectorate 104
key buildings including the Orangery. [3.7 3.17 3.31 6.48 6.102 7.44 9.13-9.15 9.61
9.81 9.102 10.2 10.6]
15.11 Under NPPF§193-194, great weight should be given to the conservation of
designated heritage assets even where the harm would be less that
substantial, and any harm should require a clear and convincing justification.
From the Courts’ interpretation of s.66 of the LB&CA 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. This should then be carried
across to policy for the WHS. Any harm at all would be at odds with the
adopted MPlan. [3.14 8.5 9.103 10.8]
15.12 While great weight should be given to every asset’s conservation, as the
Orangery/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.
RBGK argued that consequently, that any harm, any at all, to the significance
of the Orangery and to the OUV of the WHS, must attract very great weight
given that the Kew Gardens WHS is an asset of the highest significance. [10.8]
15.13 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 Mayoral 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. [3.14 3.17 9.13 9.25 10.2]
15.14 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.
RBGK took a different view arguing that setting is key to the OUV of the WHS.
While setting is undoubtedly important, and not limited to its BZ, I was not
persuaded that it’s the most important thing about this remarkable place. [6.30
10.2]
15.15 The Applicant felt it must be relevant that the scheme would affect part of
what makes the WHS significant, but leave other aspects of significance
untouched. However, the key point is how important the aspect that would be
affected, that is the setting, is to its significance. Moreover, in the case of a
listed building, even if an attribute of its significance/special interest was not
mentioned in its description (and may not have been identified at the time)
does not prevent it becoming important. Either way, harm to the setting of the
Orangery would also harm the OUV of the WHS. The weight to this should not
be reduced just because it only affects one part of a large WHS. [6.30 6.32 6.38.2
6.40 6.43]
15.16 In assessing the weight to be given to the importance of the particular views
that would be affected, much was made of whether or not there were designed
views of the Orangery from particular viewpoints, and especially View 30. If
so, any harm to these views would be a greater affront to its significance. Even
with the adoption of the MPlan and its Appendix D, the evidence on this is
https://www.gov.uk/planning-inspectorate 105
equivocal. It is known that Chambers designed the White House, the Orangery,
and the Great Lawn. Also, that this was radically altered by Burton who used
the Orangery as a key feature. As HE put it, there was a design relationship
between the Orangery and the garden landscape including the Great Lawn
which remains … – the sense of experiencing a historic landscape design and
its associated architectural legacy. [2.7 6.38.3 7.8 7.25 9.13-9.17 10.2 10.5 10.6 10.14
10.16 10.37]
15.17 View 30 is taken from where the scheme would be visible above the roof of the
Orangery. The Applicant argued that this is not a view of particularly great
importance, is not a Chambers or Burton-designed view, that the Great Lawn
has not survived, and there is very little about the current network of
footpaths and lawns which relates to the 18th Century landscape (shorn of
lakes, open views, the White House itself etc). It added that the palimpsest is
not capable of being affected itself by the scheme because it only has
existence as a quality inherent in the gardens themselves. [5.3 6.7 6.38.2-3 7.24-
7.26 9.16 9.17 10.16]
15.18 On my site visits, I saw that part of where one can appreciate the setting of
the Orangery today includes what was once part of the Great Lawn. What is
less evident is whether that was also true historically so that greater weight
should be given to the harm caused by this scheme. That is partly because
evidence on the Great Lawn, and the Broad Walk, depends to some extent on
the use of artistic licence to interpret the various historical documents. I am
satisfied that in designing these features it is unlikely that Chambers (and
subsequently Burton) had any one view in mind, such as one might have along
an avenue to a country house, but nor was the ability to see the Orangery
from the Great Lawn coincidental. Chambers would have wanted to show off
his skill in its architecture just as he would for the, now demolished, White
House. View 30 is relevant to this, and more important than some others, but
not the only view that matters. Rather, Chambers placed the Orangery in a
position that made sense botanically but also sought to show off his skills
widely across the site. [6.38.3 7.25 9.18 10.17 10.37]
15.19 Given that these two extremes, of a specifically designed view and of a
random view, can be eliminated, it is of less importance, or weight, whether
the designer had any particular views in mind or simply controlled the whole
ensemble, as he undoubtedly did. Or, as the CC Inspector put it, albeit for a
different scheme, that views across the Great Lawn, or what remains of its
original conception, are essential to an understanding of the place of the
Orangery in the designed landscape. As such, they are integral to the
contribution setting makes to significance. [6.38.3 7.25 9.18 9.17 10.16]
15.20 Turning to the actual effects, change to the setting would be as a result of the
scheme’s upper 6 storeys (or so) appearing at distance of approximately
1.2km above the Orangery roof from a few angles. Perspective would mean
that the proposals would not be visible above the roof when standing close to
it. Rather, in order to see the scheme, it would be necessary to stand well back
(at View 30 or nearby). I first studied the view over the Orangery in the
autumn, as requested, before the Inquiry opened. I noted that, as more of the
scheme would be obscured when the trees were in leaf, which is for the part of
the year when there are likely to be more visitors, the impact on views would
be reduced. [6.7 6.57.2 6.41]
https://www.gov.uk/planning-inspectorate 106
15.21 I saw that the height and width of the scheme could distract the eye in views
from a relatively small area of the lawn when standing some distance away
when the weather is good. Even so, the extent of change to the setting of the
Orangery from these angles would be pretty minor. To put this in perspective,
I doubt that the intrusion into the view would even register with the vast
majority of visitors who would be far more taken by the quality of the
Orangery, or a hundred and one other fascinating aspects of the Gardens.
Furthermore, View 30 is too far from the asset to take in its architectural
details. In terms of the ability of the public to appreciate the Orangery, the
effect of the scheme in the setting would be negligible. [6.38 6.41 9.8 9.23 10.2
10.37]
15.22 On the other hand, listed buildings should be preserved for their own sake and
the setting of the Orangery is important to the OUV of the WHS, if not
absolutely key. As above, the impact on its significance as a listed building can
be equated with the effect on the OUV of the WHS. Given that the extent of
change would be minor, I find that the degree of erosion to the significance of
the listed building, and so that of the WHS, would also be slight. [6.35]
15.23 As above, the overall harm should be some sort of product of impact and
importance, with the balance tipped firmly in favour of preservation. However,
to argue that a slight detrimental change to its setting should automatically be
equated with considerable harm on account of the importance of the asset
would be an extreme if not unreasonable position. It would prejudice the
balance required to be taken by the decision maker under NPPF§196.
Considerable importance and weight to the desirability of preserving does not
necessarily result in considerable weight to the harm. Providing the desirability
of preserving has been given considerable weight, and the balance tipped
appropriately, the assessment of the weight to the actual harm to significance
(or special interest) in the overall balances is a matter for the decision maker.
Or, as the SPG puts it [WHS]s have a very high significance value, therefore
even minor changes can have a significant effect. [3.14 6.3 6.4 6.93 7.41 8.5 8.9]
15.24 On this basis, the harm would not only be less than substantial but, following
Bedford, also nowhere near the level of harm required to be deemed
substantial. This also accords with the findings of the CC Inspector except that
here the scheme is for up to 18 storeys compared with the 31 storeys there.
[3.15 6.29 6.30]
15.25 I see no good reason why the WHS might be put on the List of WHSs in
Danger as a result of the proposal. RBGK implied that UNESCO might withdraw
WHS status if much more development took place outside the boundaries of
Kew that detracted from its setting. It drew comparisons with the Liverpool
Maritime Mercantile City WHS, now threatened with de-listing as a result of
development close to its listed buildings. However, there was no evidence that
the developments within the settings of each of these sites are remotely
similar. For all these reasons, I find that the overall weight to the harm to the
significance of the Orangery, and so on the OUV of the WHS, on account of
impact on its setting should be assessed as moderate. I note that this was also
HE’s finding. [9.12 10.3 10.4]
https://www.gov.uk/planning-inspectorate 107
Cumulative harm to Kew Gardens
15.26 The tall buildings in the area include a range of developments, either built,
under construction, consented or with a resolution to grant permission. As
above, the Mayoral SPG warns of a tipping–point while HE’s AN4 advises
a careful examination of … any public benefits … and of the alternative means
of delivering them … to be able to find a clear and convincing justification for
the cumulative harm. This wording adopts the NPPF language of clear and
convincing justification, although the NPPF does not specifically refer to
cumulative harm under its Historic Environment chapter. [3.17 3.21 6.32.2 8.4
9.13 9.25 10.2 10.5 10.12 10.18]
15.27 RBGK argued that an assessment of cumulative harm requires identifying that
the scheme causes harm in addition to existing recognised harm, and that the
total harm, including the pre-existing harm and potential harm associated with
consented (but not yet built) developments, should be assessed together.
[10.18]
15.28 The Applicant acknowledged that harm from the scheme would compound that
from BFC and of other existing visual intrusions (it argued to a very small
degree), and that this would affect the Orangery (and so the OUV). It noted
that HE describes the setting as well preserved while, in RBGK’s eyes, the
cumulative harm is already all but fatal to the OUV. The Applicant argued that
this is self-evidently not the case as it would leave no room for judgement: if
the existing situation is near to substantial harm, then any further glimpse,
however small, would be unacceptable. [6.43 6.45 6.48 10.2 10.6]
15.29 To my mind, cumulative harm should be assessed in three ways. First, it is the
proposal that should be assessed initially, followed by a cumulative
assessment. As HE AN4 notes: Each building will need to be considered on its
merits, and its cumulative impact assessed [my underlining]. Which of these
considerations carries more weight, and how these are combined, will be a
matter for the decision-maker based on the circumstances. Second, existing
harm should never be used to justify additional harm. Policy is unequivocal
that the quantum of proposed harm should not be compared with existing
harm in assessing whether it would make a significant difference. Finally, if the
combination of existing and proposed harm would reach a tipping point then
this would be particularly relevant in judging the overall effects. [3.21 6.30 8.29
9.27]
15.30 In this case, having studied the extent of visibility of existing buildings (such
as the Haverfield Towers) and their positions relative to important views, I find
that the severity of change (rather than the harm) to the setting of the
Orangery would be a little more than slight. While the Haverfield Towers have
a greater impact on the setting of the WHS as a whole, this is over a much
wider area than that of the Orangery for which there are fewer viewpoints.
Taken with existing impacts, and for similar reasons, I find that overall there
would be a minor cumulative effect. Combined with the impressive credentials
of these overlapping assets, the weight to the direct harm and the slightly
greater cumulative harm should be assessed as a little, but not much, more
than moderate. It would fall well short of a tipping point. The harm would still
not come close to substantial. [2.3 6.53 7.28 9.11 10.9 11.8]
https://www.gov.uk/planning-inspectorate 108
15.31 While the MPlan understandably raises the concern, and in strong terms, that
development outside the BZ might reach a tipping point, or even lead UNESCO
to consider whether to withdraw WHS status, there was little evidence that this
would be the case. In a cumulative assessment, other tall buildings are also at
a very significant distance. Indeed, the only building that really towers over
the Gardens is the listed Pagoda within its grounds. The parallels with the
Westferry Decision are not comparable and in any event that has now been
quashed. [9.10 9.12 10.4]
Planting scheme
15.32 The Indicative Scheme Option for planting behind the Orangery claims that it
would, in due course, be capable of screening out the view of the scheme.
Indeed, it suggests that it would only take 4 evergreen trees to obscure the
development from View 30 adding that: If the Inspector agrees … that the
planting is desirable and benefits the site’s architectural legacy, then RBG
Kew’s refusal to cooperate is contrary to the objectives of the planning system
on which RBG Kew otherwise rely heavily. The adopted MPlan acknowledges
both the need for screening ever taller external developments and the fact that
these cannot be relied upon, just as the CC Inspector did. [3.22 3.27 6.51 6.95
6.71 6.103 10.30 10.31 14.2]
15.33 I accept that, as found in Banks, the Undertaking should be a material
consideration. However, even if RBGK accepted the money, the screening
would take time to materialise and, as it explained, there might be a number
of reasons why it might not be effective. I noticed on my site visit that the
boundary planting to screen modern development just outside the boundary is
not entirely effective even at a much lower height. [1.6 3.27 9.13 10.30 14.2]
15.34 More fundamentally, RBGK is not required to cooperate. It has said in terms
that its support will not be forthcoming. This could be for the reasons it sets
out or any other motive. While there should be some acknowledgement that
RBGK might be deliberately trying to thwart a possible solution to its objection,
if it is not minded to accept the funds and/or carry out the planting effectively,
the screening would not work. The Unilateral Undertaking should therefore be
given limited weight. [6.95 9.30]
Strand-on-the Green (SotG)
15.35 The relevant designated heritage assets here are the SotG CA and the row of
mostly Grade II listed buildings along the north bank of the River Thames. The
recently updated CA appraisal confirms the importance to its significance of the
River and water’s edge, the historic buildings lining it, and its picturesque
charm, both from within the area and from advantageous views on the
opposite riverbank. The buildings are listed for group value with Nos. 64-71
being of particular relevance to the application. Zoffany House is Grade II*
but, as the upgrade from Grade II almost certainly relates to the painter of
that name who lived there, this element of its historic interest would be
unaffected by development within its setting and the scheme would not harm
this aspect of its significance. I also saw that the houses, as a group, relate
closely to the River and are well-preserved and attractive. [2.8 3.24 5.3 6.64 7.20
8.12 9.2 9.37 9.44]
15.36 From the north towpath, close to the listed buildings, not only does the
relationship between the River and the buildings dominate, but the proposals
https://www.gov.uk/planning-inspectorate 109
would be out of sight behind them. From across the River, outside the CA, the
view from directly opposite this row of listed buildings is the most important to
their setting as it is from here that they can be best appreciated. The various
views, and the video, show that only in a short stretch of the eastern portion
of the towpath would the scheme sit behind the listed houses, while the
Citadel, if built, would stand above them for much of the view from across the
River. From the most important views further along the towpath to the west,
the proposed buildings would be more prominent but would no longer appear
above the listed buildings, unlike the Citadel (and the CC). [6.66 7.7 9.34]
15.37 View 23 shows the angle at which the scheme would most directly affect the
settings of the relevant listed buildings, particularly Nos. 64-71 at the western
end. It was chosen as a worst case. From here, the height and massing of the
scheme would distract the eye and be at odds with the relative size and
appearance of the listed buildings along the towpath. Moreover, from this
distance the extent of change to the setting would be from the height and
width of the scheme and the detailed design of its external treatment would be
less apparent. As a result, I find that the scheme would have a harmful effect
on the contribution the settings make to the significance of this group of listed
buildings. To the extent that the view from across the River illuminates an
important aspect of the CA’s significance, albeit from a position that is not
within it, there would also be harm to the CA as a whole. [2.8 6.6 7.17 9.47 9.71]
15.38 At the CC Inquiry, where a much taller scheme would have stood more directly
behind the listed buildings, the Inspector found that the scheme would
compete with and distract from the frontage, thereby undermining its primacy
in the view. … That would have a harmful impact on the contribution setting
makes to the significance of the [SotG CA], and of the many listed buildings
fronting the river. Nevertheless, he concluded that the CC scheme would cause
some harm to the setting and thereby the significance of the [SotG CA], and
the listed buildings on the river frontage. He put it no higher than that and the
SoS accepted this. The scheme before me would be significantly lower than the
CC and would affect the settings of listed buildings from a short stretch of the
opposite towpath at a more oblique angle. While there are other differences, to
be consistent, it would be difficult to conclude a much greater degree of harm
arising from the Citroen scheme and I do not. [6.69 7.7 7.8 8.13 9.19 9.51]
15.39 From policy in the NPPF§189 and elsewhere, the weight to the importance of
the settings of a group of essentially Grade II listed buildings (whatever that
impact might be) should, in principle, be demonstrably less than for the
Grade I Orangery and the WHS at Kew. The calculation of weight to be given
to the harm to the SotG CA and its listed buildings is therefore quite different
to that to the WHS. While still limited, the extent of change to the settings of
the SotG CA and its listed buildings would be much greater than the slight
severity of change to the Orangery, but the importance is much lower. Again,
looking at this as a product of these factors, I find that the weight to the harm
to the SotG CA and its listed buildings should also be moderate. The setting of
a CA is not protected by Statute, and s.72(1) of the LB&CA Actdoes not apply
to the SotG CA in this case, but impact on its setting can affect its significance
and so result in conflict with NPPF§196, LonP Policy 7.8 and HLP CC4. [3.6 3.11]
https://www.gov.uk/planning-inspectorate 110
Cumulative harm to the SotG CA
15.40 As for Kew Gardens, the cumulative harm should also be assessed. With
regard to the SotG, the severity of change (rather than the harm) to the
settings of the listed buildings and of the CA would be moderate. Taken with
existing and future impacts, and the BFC stadium in particular, there would be
a cumulative effect but overall it would be not much greater. It would also fall
well short of a tipping point. Overall, the weight to the harm to the significance
of the SotG CA and its listed buildings on account of impact on their settings,
and the cumulative harm, should be assessed as a little more than moderate.
[2.4 3.34 4.2 6.67 6.68 7.9 9.42]
15.41 On balance, but by a different calculation, I find that the weight to the harm to
the significance of Kew Gardens and to that of the SotG would be similar. In
each case, this must be weighed against the public benefits in the heritage
balance, albeit with the scales already tipped. The combined harm to both
should be considered in the planning balance.
Kew Green
15.42 The CA appraisal explains its designation as an historic open space, with high
quality C18th development, a definite village character and a fine example of
an historic Green. As with the SotG, many of the more attractive buildings are
listed at Grade II, a few at II*. As was nicely put by the CC Inspector: The
green is a charming space, bounded by a pleasing variety of buildings, a lot of
which are listed …. The difference here is that, given its much lower height, the
scheme would not be as conspicuous as the CC. Nevertheless, it might just lift
the eye and cause some harm to the setting and so to the significance of the
Kew Green CA and the listed buildings that front onto the north side of the
Green, Nos.90-96 Kew Green in particular but also No.71 and Nos.98-106. [2.6
2.9 3.25 5.3 6.8 6.49 6.73 7.4 7.36 8.16 8.17 9.1 9.63 9.70 9.76]
15.43 On the other hand, at no point would the scheme appear above the tree line
and it would be even less visible when the trees are in leaf. The key Views are
20 and 22 from where the viewer would need to be focussing on the direction
of the development to notice it at all. As the Green has 4 sides to it, the focus
is much wider than the towpath to the SotG and it is further away from the
site. While it would be too dogmatic to suggest that there would be no impact
at all on setting, the extent to which this would affect the significance of the
CA or that of the listed buildings would be close to negligible. The cumulative
assessment would add little to this.
Other heritage assets.
15.44 The CC inspector found that: Given the proximity of the Wellesley Road [CA]
…, the [CC] would be prominent in views towards it …. However, in this part of
the [CA], one can hardly fail to be aware of the Chiswick Roundabout, the
elevated section of the M4, and attendant visual and other impacts.
Notwithstanding that, the disciplined terraces, and the regular layout, are
readily appreciated. The [CC] … would appear as something beyond the [CA]
too and its visibility from within the [CA] would not undermine an appreciation
of its significance in any way. While it would affect the setting of the [CA], in
my view, it would not harm the contribution that setting makes to its
significance. The scheme before me would be significantly lower, at a similar
distance and with comparable views. I also find, for similar reasons but based
https://www.gov.uk/planning-inspectorate 111
on my own visit, the CA appraisal and the evidence before me, that the
significance of this CA would be unharmed. [2.2 2.10 6.80.1 11.5]
15.45 From Kew Bridge the view is an oblique one and largely obscured by existing
development. No party argued that impact on the setting of Kew Bridge or its
CA should be a significant factor (if at all) in this case. I find that they would
be unharmed. [2.2 2.11 8.12 12.2]
Heritage Balances
15.46 NPPF§196 requires a balance in each instance of less than substantial harm to
the significance of a designated heritage asset. This is expressed as a single
requirement and so should be applied to each affected asset individually.
Where there is more than one instance of such harm, as here, these should be
combined in a planning balance which I carry out below. Here the harm to the
setting of each designated heritage asset would be less than substantial,
including cumulative harm. By comparison, substantial harm requires that:
very much if not all of the significance of the asset was drained away. My
assessment is that this is not the case here and, contrary to assertions by the
objectors, the harm would not come close to substantial for any asset. [3.15 6.3
6.4 6.25 6.78 6.91 7.41 7.48 7.53 8.9]
15.47 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 the Orangery
(and by extension to the OUV of the WHS) should be assessed as moderate;
the weight to the harm to the listed buildings on the SotG, and to its CA, to
also be 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, altogether,
should still not amount to more than a little above moderate harm for all the
designated assets as a whole. [3.11 6.6 6.23 6.28-6.30 6.32 6.54 6.65 7.15 7.18 7.21
7.31 8.4 8.18 9.21 9.22 9.36 9.52 9.68 10.3 10.8 10.11 10.18]
15.48 I shall therefore assess the benefits of the scheme before recommending any
particular heritage balance is struck.
Other harm
15.49 LBH queried the standard of accommodation for future residents with
particular regard to levels of daylight to habitable rooms. As above, 75 rooms
would fail to meet the minimum BRE standards for daylight and the vast
majority of those would be living rooms. While in my assessment this
proportion should not automatically be fatal to the scheme, and was not
pursued by LBH as an objection, nevertheless it should weigh against the
proposals in the overall planning balance. [5.7 6.80.3 7.52 8.28 11.10]
15.50 On the issue of infrastructure, and contributions that could be secured by
planning obligation, the WCGS was sceptical about the Transport for London
(TfL) improvements and the purported 2021 increase in PTAL from a greater
frequency of services. This is because at Gunnersbury Station one is prevented
from accessing the platform during peak periods. Furthermore, without the
necessary major upgrade to the Station, an increase in frequency could
exacerbate the situation by increasing the time one is held in a queue. That
may all be true, but the contributions sought by TfL would be provided and it
https://www.gov.uk/planning-inspectorate 112
would be unreasonable to ask the developers to do more. [2.2 2.3 5.4 6.90 11.7
11.12]
15.51 WCGS also queried the absence of any reference to the low-rise, high quality
townscape within the Wellesley Road CA to the east of the site which it felt was
a serious omission. As above, I have found that there would be no harm to the
significance of its CA and, while I acknowledge that the presence of the
development might well be unwelcome to existing residents, this is not a
reason to deny others a home. [2.2 2.10 6.80.1 11.5]
Design
15.52 If viewed from directly above, the apartment blocks would fan out from the
northern corner. There would also be a small public plaza. The variety of
external treatments and the height differential between blocks would break up
the perceived mass in some views, and the landscaping proposals would be an
enhancement. [3.3 3.9 6.97 7.58 11.6 11.12]
15.53 I find that splaying the blocks is a clever device which would allow more
sunlight into some flats, though at the cost of others, and would give some
protection to the open spaces from the elevated M4. The scheme would offer
benefits to pedestrians as the place with the sunniest aspect would be given
over to a new public plaza and also offer a direct route from Chiswick High
Road across the leisure centre car park. I therefore accept that the scheme
would introduce a high-quality urban design into an area which is being
positively planned to accommodate substantial change. [2.1 5.1 6.57.4 12.2]
15.54 On the negative side, as HE pointed out, the contemporary architectural forms
could be associated with high density anywhere urban structures, lacking any
real connection to their context. Moreover, the architectural detailing would
not be readily apparent from a distance, and from some angles the splayed
blocks would read as a band of clustered vertical forms, while for the most
prominent block the step in heights would not be readily noticed from the
SotG, as this would stand forward of the AH block next to the M4. [7.21 8.18
9.48 9.50]
15.55 Equally, the scheme would not be such a striking new entity, in the way that
the CC might have been, that it would amount to an outstanding or innovative
design which could demonstrably help raise the standard of design more
generally in the area. It would not be at the head of any hierarchy along the
GWC but would be one scheme among several. This would cut both ways: it
would have fewer benefits as an architectural object but would be less
dominant and distracting in the setting. Any blending with other developments
would do nothing to diminish its impact as part of any cumulative effects. [8.22
8.23 11.30]
15.56 The WCGS pointed out that the public space, for new residents and others,
would also be a spill out area before and after football matches rather than
direct supporters away from residential streets. It argued that poor daylight to
many flats would make future residents have to judge the ambient air pollution
and noise before stepping outside to compensate for a lack of sunlight/daylight
by using their balconies. It referred to over-delivery of 1-bed units, in an area
with a significant over-supply, which would be unbalanced, and claimed that
the resulting churn would reduce community cohesion. It noted the nursery
and that its play space would be in a position exposed to high levels of air and
https://www.gov.uk/planning-inspectorate 113
noise pollution. Finally, it wondered how the Government hopes to meet its
carbon-reduction targets if it approves new buildings which would lock us into
unsustainable additional energy demands for mechanical ventilation and air
conditioning. These matters should all be weighed in the design balance.
[11.10-11.12]
15.57 The harm to the settings of designated heritage assets also counts against the
quality of the design. LBH argued that, without the written brief to the
architects, it’s not clear what was expected. Also, that the scheme could only
be as good as the advice from its original consultants: that the architects did
not need to worry about the wider heritage context. For this report, the
distinction between the brief and the architects’ input is of little relevance and
what matters is the quality of the final design, including its impact on the
settings of designated heritage assets. [7.5 8.6 8.29]
15.58 Overall, I find that the positive aspects of the design would be negated by the
flaws with regard to daylight and heritage in particular, but taking account of
other criticisms as well, so that the quality of the design would be broadly
neutral in the planning balance, and should not be given any weight either as a
benefit or a disadvantage of the scheme. [6.81.3 7.52 8.28 11.10]
Benefits: housing and affordable housing (AH)
15.59 The proposals would provide 441 new homes, 218 of which would be AH of one
sort or another. LBH argued that as it had a 5YHLS the weight to the benefits
of housing should be reduced. On the other hand, London is one housing
market and so the benefits of new housing should not be downgraded. While
LBH may well be a high performer, and close to any new targets, it would be
wrong to argue that the London-wide need for housing could be met
elsewhere. [5.5 6.11 6.18.4 7.56 8.20 8.24]
15.60 The Applicant argued that achieving more than usual AH was a further benefit.
The current LBH policy requirement is only 40% and there is an Early Stage
Review Mechanism in the s.106. The Mayor held out for 50% AH. It may be
true that, compared with many other schemes, the proposals would result in
significantly more AH than would be achieved by a market developer, but the
scheme at 1-4 CIW calls this into question and although the viability evidence
suggests that this is the maximum, it was not tested. Consequently, the AH
offer is no more than would be policy compliant as and when the IPLP is
formally published (which is likely to be before the decision on this case) and
anything less could be weighed against the scheme. The AH should be given
substantial weight but not more than that. [3.30 5.5 6.9 6.11 6.12.2 6.14 6.60 8.29
10.24]
15.61 RBGK suggested that the benefits of housing, and AH, were unremarkable and
no more than a common or garden benefit. While this may be true in some
circumstances, it should not apply when there is an acute housing shortage
right across London. [7.62 10.21]
Other benefits
15.62 The proposals would be on a brownfield site in a highly sustainable location. It
would employ 250 construction workers with other uses and include a nursery.
Otherwise, there was little persuasive evidence that the proposal would bring a
massive uplift to the area around it. The 250 jobs would be a short-term
https://www.gov.uk/planning-inspectorate 114
benefit even if they might offer continuity of employment to some. The nursery
would be an advantage to the local community, existing and new residents,
and is a benefit of modest weight in the balance. [5.2 5.4 6.1 6.18 6.20.1 6.89 7.52
7.57 8.27 11.11]
15.63 Economic activity, and regeneration would be further benefits but taken
together these add little to the substantial benefits I have found. Collectively,
and relative to the importance of housing and of protecting the historic
environment, the other benefits should be given a little weight in favour of the
scheme. [6.20 6.21 6.59 6.78 7.15 11.13]
Heritage balances
Alternative schemes
15.64 The Applicant argued that alternative proposals, that would not harm the
setting of the Orangery/WHS, could not deliver a similar level of public
benefits. In the SoS’s CC decision, he considered that it could be possible for
an alternative scheme with lesser impacts on designated heritage assets to
also provide benefits of this type …. He did not require the same benefits, only
similar. While there was a fallback scheme at the CC, and other scheme
benefits, the SoS did not stipulate that this was necessary. Comparisons were
drawn with a suggested 12-storey scheme and with the proposals for 1-4 CIW
where the developers were able to produce a similar number of units, and 50%
AH, with buildings of up to 16 rather than 18 storeys. LBH accepted the
principle of tall buildings here and encouraged a scheme up to 15 storeys, but
not beyond that, and for it to reflect the stepped approach of building up
towards the M4, which it would do but only in part. [1.5 3.21 3.29 6.18.4 6.55 6.71
8.24 9.91 9.96-9.99 9.100 10.21-10.23]
15.65 As well as a supplementary proof on viability, the Applicant presented a high
level assessment of the viability of the Notional Reduced Scheme (of no more
than 12 storeys) which it argued was firm evidence not speculation, to show
that no other scheme could provide the same or even similar benefits without
causing harm to the setting of Kew Gardens. This also sought to distinguish
the Citroen site from 1-4 CIW by reference primarily to differences in the
Existing Use Value of the site as a car showroom, compared with the cleared
site at CIW. However, neither was the viability assessment reviewed at the
time of the Application nor was a witness called for cross-examination.
Moreover, it does not address the point that while any tall buildings would
draw the eye, a larger/taller one might do so to a greater degree. It does
nothing to address LBH’s wish that it should not exceed 15 storeys. Taken
together, the high level of the late viability information and the inability to
question it in detail mean that this should be given limited weight. [6.57.4 6.58
6.60-6.62 6.72 6.96 7.63 8.29]
15.66 To my mind the arguments defending the lack of properly considered
alternatives are weak and there is some strength to the criticisms. If in place
at the time of the application, IPLP Policy D9 would have imposed an
obligation, as part of a clear and convincing justification, to demonstrate that
alternatives have been explored. A further consideration arises from the
general argument that the design could have been better. This must almost
always be true of what is an iterative process. Indeed, if one perpetually
refined a design nothing would ever get built. It follows that for weight to be
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given to this criticism there must be the reasonable possibility of a significantly
different alternative with demonstrably better outcomes. [3.29 6.23.2 8.4 8.29iv-
xiii 9.91 9.96 10.21]
15.67 The Notional Reduced Scheme of no more than 12 storeys would be bound to
reduce the ability to achieve a comparable volume of accommodation. An
alternative might come forward that mirrored the 16 storeys at 1-4 CIW. This
would still be visible but to a lesser extent and probably over a smaller area.
It would then be necessary to consider whether a reduction of only 2 or 3
storeys would make a significant difference to the harm identified, noting that
the height was only raised in connection with heritage assets and that a
reduction would have no other benefits other than meeting LBH’s emerging
aspirations for the area. It would do little to allay WCGS’s concerns. Moreover,
the current scheme is ready to proceed and there must be at least some
uncertainty about any alternatives, not least over their timetable. The issue is
therefore the likelihood that a significantly different scheme, not just one with
some small tweaks, would come forward that would provide a much better
balance between the provision of roughly the same benefits and much reduced
harm to the settings of heritage assets. This must include the likelihood that it
would be viable, that the Applicant would want to carry it out or sell the site to
another who would, and be worth the delay in providing those benefits. [2.5 4.3
6.15 6.56 6.61 6.71 7.63 8.22 8.29 8.32 10.24]
15.68 For these reasons, some weight should be given to the possibility of
alternatives. Despite the untested viability evidence, given the advanced stage
towards approval for the proposals at 1-4 CIW with 50% AH, I find that there
is a reasonable prospect that a lower scheme might have reduced impacts on
the settings of the Orangery/WHS and the SotG CA/listed buildings while still
offering a reasonable amount of housing and AH. Having said, the 1-4 CIW
would rise to 16 storeys, to reflect its position on the inside of the curve of the
M4, rather than the 12 storeys of the Notional Reduced Scheme. A 16 storey
scheme for the Citroen site would only reduce the change to the setting of the
WHS slightly. Taken with the lack of certainty that such a scheme would ever
happen, the weight to any alternative should not be substantial. [6.58 6.61 8.22
8.29]
Heritage balances - conclusions
15.82 Having established the public benefits, I now return to the NPPF§196 balance.
I recommend moderate weight should be given to the harm to the significance
of the Orangery on account of development within its setting (and by
extension to the OUV of the WHS) and also to the significance of the listed
buildings at the SotG and Kew Green (and similarly to their CAs). In each case
this should be slightly, but not greatly, increased by the addition of cumulative
harm. Weighed against the substantial benefits of the scheme, I find that in
each case the NPPF§196 balance should weigh in favour of the proposals. This
is an important material consideration.
The development plan and overall planning balance
15.83 Under s38(6) of the P&CP Act, reiterated in NPPF§2, NPPF§12 and NPPF§47,
the development plan forms the starting point for determination of this
application. The relevant policies are set out above.
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15.84 On account of the less than substantial harm to designated heritage assets,
including cumulative harm, the scheme would lead to conflict with LonP
Policies 7.8 and 7.10. The Mayor argued that to find conflict a with
development plan policy regardless of the level of harm to heritage, would be
inconsistent with the NPPF, which requires a more balanced approach; and
that given the low level of harm to heritage assets, no conflict with LonP
policies 7.8 and 7.10 would arise. I disagree. It is important to note that these
policies do not have the same balancing exercise as in NPPF§196 and I find
that there would be conflict with these heritage policies. [3.6 3.7 6.4 7.41 8.9]
15.85 Given my conclusions on design, I find that the scheme would be neutral with
regard to LonP Policies 7.4 and 7.6 as well as HLP Policies CC1, CC2 and CC3.
LonP Policy 7.7 requires particular consideration in such circumstances and so
a balance is required. HLP Policy CC4 again requires a balance between harm
to designated heritage assets and public benefits. [3.3-3.7 3.9-3.11]
15.86 While there would be tension regarding some elements, 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 LonP
Policies 3.3-3.5 and 3.8-3.13 and HLP policies SC1, SC2, SC3, and SC4. Its
location within the GWC would mean some support from HLP Policy SV1. [3.8
3.12]
15.87 While some heritage policies require a balance, others do not, leading to the
conflict set out above. Nevertheless, assessment requires a balance against
the development plan as a whole. If the SoS agrees with my judgements on
the harm to heritage and the benefits of the scheme, then it would accord with
the development plan as a whole. The reverse is also true.
Material considerations
15.88 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. Of these, Policy GG5 on
a competitive economy, and Policy GG2 on making the best use of land,
support the scheme. [1.7 3.30 6.83.1 6.98 7.67 9.105 10.35]
15.89 For the above reasons, the limited exploration of alternatives should not
breach the requirements of IPLP Policy D9. As with current LonP policies 7.8
and 7.10, the scheme would not accord with IPLP policies HC1 and HC2. Each
of emerging policies D9, HC1 and HC2 also introduce the importance of
cumulative impacts. The latter, and many other documents, add support for
appropriate weight being given to the provisions of the now adopted WHS
MPlan. This in turn adds support to the objections and elaborates on the SOUV.
The Mayoral SPG, HE advice and guidance, and the various CA appraisals all
clarify the interpretation of policy and the importance of the various assets.
[1.8 3.7 3.17 3.22 3.24 3.27 3.30 6.7 6.50 6.99-6.105 7.68 9.8 9.13 10.5 10.28 10.35-10.37]
15.90 The application accords with the LPR’s housing and AH policies but not heritage
policy. As the site will lie within the OA, where tall buildings are expected, it
would comply with the thrust of OA policy in the GWC LPR (including its
Masterplan and Capacity Study) albeit not the fine detail of where a focal
building should stand. At the CC, the Inspector anticipated that the Citroen
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scheme would proceed without delay. On that basis, he assumed an overall
context of a new stratum of development along and around the GWC. The
Applicant and the Mayor similarly claimed an inevitability of harm from
prospective schemes in the GWC OA. However, this has not yet happened, and
the HLP should still be given only limited weight. [3.32 3.34 6.85 7.12 8.1 8.22-8.24
9.56 11.11]
15.91 The decision maker is entitled to include the Richmond LP among the material
considerations, and I recommend that it should be. I also find that it is one of
limited weight given that it doesn’t cover the site and that other policy covers
the same matters. [8.3 9.93 10.3]
15.92 At its heart, the balance is a simple one between the harms, primarily those
that would be caused to the settings of a number of heritage assets, and the
public benefits, mostly of new housing, particularly AH. As there is more than
one instance of heritage harm, these should be combined in the planning
balance. The range of heritage harm would be to one of the relatively
commonplace Grade II listed buildings in the CAs at the SotG or Kew Green, to
that of the highest order, in the case of the Grade I Orangery in the WHS. My
findings of harm lead to conflict with NPPF§193, and s.66 of the Act, and
means that this harm must attract great weight, or considerable importance
and weight, in any balancing exercise. While I have carried out the NPPF§196
balances individually, when combined, the moderate harms to more than one
asset do not lift the weight significantly. The additional harm to the Kew Green
CA and its listed buildings adds very little to this. [3.11 6.3 6.19 6.25 6.54 6.92 7.3
7.53 7.65 8.4 8.30 8.33 11.8]
15.93 The moderate failings in some daylight levels adds further harm but the overall
weight to harms would still not amount to substantial. Similarly, the various
other benefits should not lift the weight to the these overall much above
substantial. As above, design should be a neutral factor. [6.81.3 7.52 8.28 11.10]
15.94 For all these reasons, assessed against the NPPF, the benefits of the scheme
should outweigh the harms. This balance amounts to a material consideration
of sufficient weight that it could indicate determination other than in
accordance with the development plan. With regard to the designated heritage
assets, I consider that the development plan should not result in a different
outcome from the NPPF. Nevertheless, if the same judgements were felt to
lead to conflict with the development plan as a whole, then support from the
NPPF could still indicate otherwise, such that the proposals should be approved
in any event.
16. Recommendation
16.82 I recommend that the application should be approved, and planning
permission granted subject to the attached Schedule of conditions and all the
obligations in the Legal Agreement.
David Nicholson
INSPECTOR
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Appendix 1
Schedule of conditions and reasons.
1. Time limit
The development must be commenced within three years from the date of this
permission.
Reason: To comply with Section 91 of the T&CP Act 1990 (as amended).
2. Approved plans and documents
The development hereby permitted shall be carried out in accordance with the
following approved plans and documents:
Proposed drawings
Site plans
1699_DWG_PL_xx_00_001 R01 Proposed 1699_DWG_PL_xx_00_002 R00 Proposed
site plan block plan
38397-PBA-XX-D-C 501-SO Rev 1
Proposed indicative surface water
drainage strategy
Elevations
1699_DWG_PL_xx_00_100 R03 Proposed 1699_DWG_PL_xx_00_102 R03 Proposed
site elevation south-east site elevation north-west
1699_DWG_PL_xx_00_101 R03 Proposed DWG_PL_xx_00_103 R03 Proposed site
site elevation north-east elevation south-west
Floor Plans
1699__DWG_PL_xx_20_100 R07 1699__DWG_PL_xx_20_110 R04
Proposed ground floor plan Proposed tenth floor plan
1699__DWG_PL_xx_20_101 R05 1699__DWG_PL_xx_20_111 R04
Proposed First (podium) floor plan Proposed eleventh floor plan
1699__DWG_PL_xx_20_102 R04 1699__DWG_PL_xx_20_112 R04
Proposed second floor plan Proposed twelfth floor plan
1699__DWG_PL_xx_20_103 R04 1699__DWG_PL_xx_20_113 R04
Proposed third floor plan Proposed thirteenth floor plan
1699__DWG_PL_xx_20_104 R04 1699__DWG_PL_xx_20_114 R04
Proposed fourth floor plan Proposed fourteenth floor plan
1699__DWG_PL_xx_20_105 R04 1699__DWG_PL_xx_20_115 R04
Proposed fifth floor plan Proposed fifteenth floor plan
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1699__DWG_PL_xx_20_106 R04 1699__DWG_PL_xx_20_116 R04
Proposed sixth floor plan Proposed sixteenth floor plan
1699__DWG_PL_xx_20_107 R04 1699__DWG_PL_xx_20_117 R04
Proposed seventh floor plan Proposed seventeenth floor plan
1699__DWG_PL_xx_20_108 R04 1699__DWG_PL_xx_20_118 R05
Proposed eight floor plan Proposed roof plan
1699__DWG_PL_xx_20_109 R04
Proposed ninth floor plan
Elevations and sections
1699__DWG_PL_01_20_200 R01 1699_DWG_PL_01_20_303 R02 Proposed
Proposed Block 1 Section AA Block 1 South West elevation
1699__DWG_PL_01_20_201 R01 1699_DWG_PL_0203_20_300 R02
Proposed Block 1 Section BB Proposed Block 2 and 3 East Elevations
1699_DWG_PL_0203_20_200 R01 1699_DWG_PL_0203_20_301 R02
Proposed Block 2 and 3 Section AA Proposed Block 2 and 3 North Elevations
1699_DWG_PL_0203_20_201 R01 1699_DWG_PL_0203_20_302 R02
Proposed Block 2 and 3 Section BB Proposed Block 2 and 3 South Elevations
1699_DWG_PL_0203_20_203 R01 1699_DWG_PL_0203_20_303 R02
Proposed Block 2 and 3 Section CC Proposed Block 2 and 3 West Elevations
1699_DWG_Pl_0405_20_200 R01 1699_DWG_PL_0405_20_300 R02
Proposed Block 4 and 5 Section AA Proposed Block 4 and 5 North East
Elevations
1699_DWG_Pl_0405_20_200 R01 1699_DWG_PL_0405_20_301 R02
Proposed Block 4 and 5 Section BB Proposed Block 4 and 5 North West
Elevations
1699_DWG_PL_01_20_300 R02 Proposed 1699_DWG_PL_0405_20_302 R02
Block 1 North East elevation Proposed Block 4 and 5 South East
Elevations
1699_DWG_PL_01_20_301 R02 Proposed 1699_DWG_PL_0405_20_303 R02
Block 1 North West elevation Proposed Block 4 and 5 South West
Elevations
1699_DWG_PL_01_20_302 R02 Proposed
Block 1 South East elevation
Reason: For the avoidance of doubt and in the interests of proper planning and so as
to ensure that the development is carried out fully in accordance with the application
as assessed in accordance with Policies SV1, CC1, CC2 and CC3 of the Hounslow
Local Plan (HLP) and Policy 1.1 of the 2016 London Plan (LonP).
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3. CIL Phasing Plan
The development shall be carried out in accordance with a phasing plan to be
submitted to and approved in writing by the Local Planning Authority (LPA) prior to
the commencement of development.
Reason: For the purposes of Regulation 9(4) of the Community Infrastructure Levy
Regulations 2010 (as amended)
4. Detailed drawings, external materials and balcony screens
Notwithstanding the details shown on the approved plans, prior to the
commencement of the development (other than demolition, site clearance and
ground works):
a) details and appropriate samples of the materials to be used for the external
surfaces of the buildings and hard surfaced areas of the development, including
details of change in elevational treatment, shall be submitted to and approved in
writing by the LPA;
b) sample panels of the building materials and hard surfacing shall be provided on
site to be inspected and approved in writing by the LPA and thereafter shall be
retained on site during the construction of the development;
c) details of the following features and elements of the development shall be
submitted to and approved in writing by the LPA:
i. Brick bonding, and brick and cladding detailing, to be shown on annotated plans
at a scale of not less than 1:20, unless otherwise agreed in writing with the LPA.
ii. External windows, balconies, winter gardens, doors, screens, louvres and
balustrading to be shown on annotated plans at a scale of not less than 1:10
unless otherwise agreed in writing with the LPA.
iii. Depth of window reveals, colonnades and soffits to be shown on annotated plans
at a scale of not less than 1:20 unless otherwise agreed in writing with the LPA.
iv. Rainwater goods to be shown on annotated plans at a scale of not less than 1:10
unless otherwise agreed in writing with the LPA.
v. Privacy screens to be shown on annotated plans at a scale of not less than 1:10
unless otherwise agreed in writing with the LPA.
vi. Shop fronts, entrances and openings to be shown on annotated plans at a scale
of not less than 1:20 unless otherwise agreed in writing with the LPA.
The development of each building shall be carried out in accordance with the
approved details prior to the first occupation of the relevant building.
Reason: To safeguard the character and visual amenities of the site and wider area
and to ensure that the building is constructed in accordance with Policies CC1 and
CC2 of the HLP and Policies 1.1, 7.4, 7.5 and 7.6 of the LonP.
5. Building and Site Management
Prior to the first occupation of each building to be provided as part of the
development, a Management Strategy in respect of the relevant building shall be
submitted to and approved in writing by the LPA.
Each Management Strategy shall include:
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a) Details of security measures including location of security/concierge office,
location and details of CCTV;
b) Details regarding the receipt, management and distribution of post, parcels,
supermarket and other deliveries to the residential units;
c) Details of the controlled areas of the development and details of those who will
have access to each of the identified zones;
d) Points of access and how access will be controlled;
e) Confirmation of disabled access arrangements;
f) Refuse and Recycling Storage and Collection (Operational Waste Management
Strategy retail and residential); and
g) Measures and procedures to prevent and deal with antisocial behaviour and
crime.
The site shall be managed in accordance with the approved strategy for the life of the
development or as otherwise agreed in writing by the LPA.
Reason: In the interests of the proper maintenance, safety and security of the site
and to ensure that the quality of the public realm is appropriately safeguarded and
that access is maintained for disabled people and people with pushchairs, in line with
policies 3.1, 3.8, 3.16, 7.2, 7.3, 7.5 and 7.8 of the adopted LonP and LP policies.
6. Final Drainage Design
Prior to commencement of construction works (excluding site investigations,
demolition and site clearance), final detailed drainage design including drawings,
supporting calculations and an updated Drainage Assessment Form shall be
submitted to the Lead Local Flood Authority for review and approval, aligned with the
June 2018 Revised Surface Water Drainage Strategy and associated drawings.
Evidence shall also be included to demonstrate that the offsite surface water sewers
are suitable to receive the runoff.
A detailed management plan confirming routine maintenance tasks for all drainage
components, including the green/blue roofs, permeable paving and attenuation tank,
shall be submitted to and approved in writing by the LPA prior to occupation of the
development to demonstrate how the drainage system is to be retained for the
lifetime of the development.
Reason: To prevent the risk of flooding to and from the site in accordance with
relevant policy requirements including but not limited to LonP Policy 5.13, its
associated Sustainable Design and Construction SPG, the Non-Statutory Technical
Standards for Sustainable Drainage Systems and HLP Policy EQ3.
7. Implementation of drainage design
No building to be constructed as part of the development shall be occupied until
evidence (photographs and installation contracts) has been submitted to and agreed
in writing by the LPA to demonstrate that the sustainable drainage scheme for the
site has been completed in accordance with the details approved pursuant to
Condition 6. The sustainable drainage scheme shall be managed and retained
thereafter in accordance with the agreed management and maintenance plan for all
of the proposed drainage components.
Reason: To comply with the Non-Statutory Technical Standards for Sustainable
Drainage Systems, the National Planning Policy Framework (Paragraph 103), the
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LonP (Policies 5.12 and 5.13) along with associated guidance to these policies and
HLP Policy EQ3.
8. Landscaping, public realm, play space and boundary treatments
A landscaping and public realm scheme for the public and private areas in the
development as shown in section 4.1 of the Design and Access Addendum (dated
April 2018) shall be submitted to and approved in writing by the LPA prior to the
commencement of public realm and landscape works.
The landscaping and public realm scheme shall include the following details in respect
of the development:
a) The overall layout, including extent, type of hard and soft landscaping and
proposed levels or contours;
b) The location, species and sizes of proposed trees and tree pit design;
c) Details of soft plantings, including any grassed/turfed areas, shrubs and
herbaceous areas;
d) Enclosures including type, dimensions and treatments of any walls, fences,
screen walls, barriers, railings and hedges;
e) Hard landscaping, including ground surface materials, kerbs, edges, ridge and
flexible pavements, unit paving, steps and if applicable, any synthetic surfaces;
f) Street furniture, including type, materials and manufacturer’s specification if
appropriate;
g) Details of children’s play space equipment and structures, including key
dimensions, materials and manufacturer’s specification if appropriate;
h) Any other landscaping features forming part of the scheme, including amenity
spaces and green/brown roofs;
i) A statement setting out how the landscape and public realm strategy provides for
disabled access, ensuring equality of access for all, including children, seniors,
wheelchairs users and people with visual impairment or limited mobility; and
j) A wayfinding and signage strategy.
k) Details of how all of the landscaped areas (public and private) will be managed
and maintained.
All landscaping in accordance with the approved scheme shall be completed or
planted (as applicable) during the first planting season following practical completion
of the development. The landscaping and tree planting shall have a two-year
maintenance/watering provision following planting and any trees or shrubs which die
within five years of completion of the development shall be replaced with the same
species or an alternative to be approved in writing by the LPA.
The development shall be carried out strictly in accordance with the approved details
and shall be retained as such thereafter.
Reason: In the interest of biodiversity, sustainability, and to ensure that the
landscaping is of high design quality and provides satisfactory standards of visual
amenity in accordance with LonP Policies 7.3, 7.4. 7.5 and Policies CC1 and CC2 of
the LP.
9. Cycle parking
Details of the secure/enclosed cycle parking spaces for the residential units, visitors
and commercial/retail tenants, including their location and type of storage, shall be
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submitted to and approved in writing by the LPA prior to occupation of any part of
the development.
The approved measures shall be installed prior to occupation of the relevant building
to which the cycle parking spaces relate and retained permanently thereafter in
accordance with the approved details unless otherwise approved in writing by the
LPA.
Reason: To ensure satisfactory provision of cycle storage facilities, in accordance
with Policy EC2 of the HLP and Policy 6.9 of the LonP.
10. Noise fixed plant
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. All such fixed external plant shall be
installed in accordance with the approved plans. No fans, louvres, ducts or other
external plant that are not shown on the approved plans shall be installed without
the prior written approval of the LPA.
Reason: to protect the amenities of existing and future residents and ensure that
the development provides a high quality design in accordance with Policies CC1, CC2
and EQ5 of the HLP and Policy 3.5 of the LonP.
11. Noise, vibration and internal residential environment
Prior to the:
a) commencement of any development above ground floor slab level, details of the
built fabric and ventilation strategy within the residential part of the development
shall be submitted to and approved in writing by the LPA. Such details shall ensure
that the approved residential units are insulated against external noise in order to
achieve internal noise levels, taking into account any ventilation requirements, which
do not exceed the guideline values contained in table 4 of BS 8233:2014;
b) occupation of the A1-A3, B1 and D1 uses forming part of the development,
details of the built fabric and ventilation strategy in respect of those uses shall be
submitted to and approved in writing by the LPA. Such details shall ensure that the
approved residential uses are insulated against noise from the A1- A3, B1 and D1
uses in order to provide effective resistance to the transmission of airborne and
impact sound horizontally and/or vertically between those uses and the residential
uses. The approved details shall be installed prior to the occupation of the A1-A3, B1
and/or D1 uses (as relevant) and thereafter retained.
All works which form part of the strategies approved above shall be completed and
evidence, that demonstrates compliance with the approved strategies and verifying
compliance with the relevant minimum standard, shall be submitted to and approved
in writing by the LPA prior to first occupation of the relevant uses. The works shall be
retained in accordance with the approved details for the lifetime of the development.
Reason: To protect the amenities and health of the occupiers of the building(s), in
accordance with Policy EQ5 of the HLP and LonP Policies 7.14 and 7.15.
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12. External lighting and security
Notwithstanding the plans hereby approved, details of:
• CCTV;
• General external lighting;
• Security lighting;
• Access control measures for residential core entrances;
• Secured by Design accreditation measures and counter terrorism measures;
on or around the buildings or within the public realm in the development shall be
submitted to and approved in writing by the LPA and installed prior to the first
occupation of the relevant building to which the above measures relate.
The details shall include the location and full specification of all lamps; light
levels/spill; illumination; cameras (including view paths); and support structures. The
details will also include an assessment of the impact of any such lighting on the
surrounding residential environment.
The development shall be carried out strictly in accordance with the details so
approved and shall be retained as such thereafter.
Reason: To safeguard the security of the development and to ensure that any
resulting general or security lighting and CCTV are appropriately located, designed to
not adversely impact on neighbouring residential amenity or ecology, and are
appropriate to the overall design of the development in accordance with policies 7.3,
7.4, 7.6 and 7.19 of the LonP and Policy CC2 of the LP.
13. Sustainability standards for non-residential uses
The development shall achieve an ‘Excellent’ rating under BREEAM UK New
Construction 2014 (or such equivalent standard that replaces this) for the Shell/Shell
and Core stage and an ‘Excellent’ rating under BREEAM Refurbishment and Fit-out
2014.
a) Within 6 months of work starting on site, unless otherwise agreed with the LPA in
writing, a BREEAM UK New Construction 2014 (or such equivalent standard that
replaces this) Shell and Core Interim (Design Stage) Certificate, issued by the
Building Research Establishment (BRE), shall be submitted to and approved in
writing by the LPA to show that a minimum ‘Excellent’ rating will be achieved.
b) Within 3 months of first occupation of the development, unless otherwise agreed
with the LPA in writing, a BREEAM UK New Construction 2014 (or such equivalent
standard that replaces this) Shell and Core Final (Post-Construction) Certificate,
issued by the BRE, shall be submitted to and approved in writing by the LPA to
demonstrate that an ‘Excellent’ rating has been achieved. All the measures
integrated shall be retained for the lifetime of the development.
c) Prior to commencement of the fit-out of the development, unless otherwise
agreed with the LPA in writing, a BREEAM Refurbishment and Fit-out 2014 Parts 3
and 4 Interim (Design Stage) Certificate, issued by the BRE, must be submitted,
by the fit-out contractor, to and approved in writing by the LPA to show that a
minimum ‘Excellent’ rating will be achieved.
d) Within 3 months of first occupation, unless otherwise agreed with the LPA in
writing, a BREEAM Refurbishment and Fit-out 2014 Parts 3 and 4 Final (Post-
Construction) Certificate, issued by the BRE, must be submitted, by the fit-out
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contractor, to and approved in writing by the LPA to demonstrate that an
‘Excellent’ rating has been achieved. All the measures integrated shall be
retained for the lifetime of the development.
Reason: In the interests of sustainable development and in accordance with LonP
Policies 5.2-5.7 and HLP Policies EQ1 and EQ2.
14. Compliance with energy strategy
The development shall be built in accordance with the Silcock Dawson Energy
Strategy v4.6 dated May 2018 submitted with the planning application,
demonstrating how the development will follow the hierarchy of energy efficiency,
decentralised energy and renewable energy technologies to secure a minimum 35%
reduction in CO2 emissions below the maximum threshold set in Building Regulations
Part L 2013.
Prior to occupation of the development, evidence (e.g. photographs, copies of
installation contracts and as-built worksheets prepared under Standard Assessment
Procedure or the National Calculation Method) shall be submitted to and approved in
writing by the LPA to demonstrate that the development has been carried out in
accordance with the the Silcock Dawson Energy Strategy v4.6 dated May 2018
submitted with the planning application unless otherwise agreed by the LPA in
writing.
Reason: In the interests of sustainable development and in accordance with
LonP Policies 5.2-5.7, and HLP Policies EQ1 and EQ2.
15. Accessible and adaptable dwellings
A minimum of 10% of all dwellings to be constructed as part of the development
shall be built to requirement M4(3) wheelchair user dwellings contained within Part M
volume 1 of the Building Regulations, as identified on the plans approved under
condition 2. All other dwellings shall be built to requirement M4(2) accessible and
adaptable dwellings contained within Part M volume 1 of the Building Regulations.
Reason: To ensure a socially inclusive and sustainable development in accordance
with Local Plan Policy SC3 and Policies 3.8 and 7.2 of the LonP.
16. Air Quality
Prior to the installation of the Mechanical Ventilation with Heat Recovery (MVHR)
system, detailed plans of the proposed MVHR system shall be submitted to and
approved in writing by the LPA.
The details shall demonstrate that:
• the air quality at the internal location of the air intakes is predicted to be within
legal limits and that appropriate NOx filtration and air tightness for windows and
doors shall be included in the building design for the nursery; all residential units
on the ground and first floor levels; and the relevant residential units located
within an area classified as Air Pollution Exposure Criteria - B on the second and
third floor levels;
• the overall efficiency of the MVHR system at least meets the details set out in the
Silcock Dawson Energy Strategy v4.6 dated May 2018 submitted with the
planning application;
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• the ventilation system will provide sufficient ventilated air for all dwellings, the
nursery and other publicly-accessible areas within buildings; and
• there are sufficient measures in place to monitor operation of the ventilation
system and remedy defects for as long as any dwelling remains occupied.
The development shall be carried out and retained in accordance with approved
details.
Reason: To ensure that the development meets the requirements of LonP Policies
7.14 (Air Quality), Policy 5.2 (Minimising Carbon Dioxide Emissions) and Policies EQ1
and EQ4 of the LP.
17. Air Quality/Combined Heat and Power (CHP)
Prior to the occupation of the development the results of tests undertaken on the
installed boiler and CHP systems must be submitted to and approved in writing by
the LPA. The results of the tests shall be approved if they demonstrate that the
installed boiler and CHP systems meet, or exceed, the emissions rates and other
parameters set out in chapter 10 of the environmental statement dated November
2017 submitted with the planning application.
Any gas fired boilers installed as part of the development shall be Ultra Low Emission
with emissions to be less than 40 mg NOx/kWh in accordance with the Sustainable
Design and Construction SPG.
Reason: To ensure that the development is undertaken in accordance with the
details provided as part of the planning application and to ensure that the
development meets the requirements of LonP Policy 7.14 (Air Quality) and Policy EQ4
of the LP.
18. Non Road Mobile Machinery
(1) All Non Road Mobile Machinery (NRMM), such as mobile cranes and bulldozers, of
net power between 37kW and 560kW (inclusive) to be used during the course of the
demolition, site preparation and construction phases shall meet at least Stage IIIA of
EU Directive 97/68/EC (as amended) if in use before 1 September 2020 or Stage IIIB
of the directive if in use on 1 September 2020 or later.
(2) If NRMM meeting the relevant Stage set out in paragraph 1 above is not available
for the demolition, site preparation or construction phases, the LPA shall be informed
and every effort shall be made to use the least polluting equipment available by
applying the following techniques instead of meeting the relevant Stage, subject to
the prior written consent of the LPA:
• Reorganisation of NRMM fleet;
• Replacing equipment with new or second-hand equipment which meets the
requirements of the relevant Stage;
• Retrofitting abatement technologies to reduce particulate emissions;
• Re-engining the NRMM
(3) Unless the NRMM complies with the relevant Stage set out in paragraph 1 above
standards, no NRMM shall be on site at any time, whether in use or not, without the
prior written consent of the LPA.
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(4) A list of all NRMM used during the demolition, site preparation and construction
phases of the development shall be kept up to date on the online NRMM register at
https://nrmm.london/
Reason: To protect local amenity and air quality in accordance with LonP policies 5.3
and 7.14.
19. Biodiversity
Prior to occupation of the relevant building to be provided as part of the
development, details of the ecological mitigation listed at paragraph 18.1.7 of the
Environmental Statement dated November 2017 shall be submitted to and approved
in writing by the LPA. The approved details shall be implemented in full and
thereafter permanently retained, unless otherwise agreed in writing with the LPA.
Reason: In the interests of ecology and habitat preservation and enhancement, in
accordance with LonP Policy 7.19 and HLP Policy GB7.
20. Land contamination
a) Prior to the commencement of development a contaminated land Phase 1 desk
study report shall be submitted to and approved in writing by the LPA.
b) If the Phase 1 report recommends that a Phase 2 site investigation is required,
then this investigation shall be carried out, and a report submitted to and approved
in writing by the LPA. The Phase 2 site investigation shall be carried out by a
competent person to identify the extent and nature of contamination. The report
produced following the Phase 2 site investigation shall 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 in the Phase 2
site investigation report.
c) If required by the Phase 2 site investigation report, a scheme for decontamination
of the site shall be submitted to and approved in writing by the LPA.
d) During the construction of the development, the LPA shall be notified immediately
if additional contamination is discovered beyond that identified in the Phase 1 report
or Phase 2 report. A competent person shall assess such additional contamination
and shall submit appropriate amendments to the scheme for decontamination in
writing to the LPA for approval before any work on that aspect of the development
continues.
e) Before the development is first occupied, the agreed scheme for decontamination
referred to in paragraphs c) and d) above, including amendments, shall be fully
implemented and a written validation (closure) report submitted to and approved in
writing by the LPA.
Reason: For the protection of Controlled Waters and to ensure the site is deemed
suitable for use, in accordance with HLP Policy EQ8 and LonP Policy 5.21.
21. Piling
No piling work shall take place until a piling method statement (detailing the depth
and type of piling to be undertaken and the methodology by which such piling will be
carried out, including measures to prevent and minimise the potential for damage to
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subsurface sewerage infrastructure, and the programme for the works) has been
submitted to and approved in writing by the LPA. Any piling must be undertaken in
accordance with the terms of the approved piling method statement.
Reason: The proposed works will be in close proximity to underground sewerage
utility infrastructure. Piling has the potential to impact on local underground
sewerage utility infrastructure. The applicant is advised to contact Thames Water
Developer Services on 0800 009 3921 to discuss the details of the piling method
statement.
22. Construction environmental management and logistics plan
The development shall not be commenced until a demolition and construction
management and logistics plan has been submitted to and approved in writing by the
LPA. The demolition and construction works shall be carried out in accordance with
the details approved.
The plan shall include specific details relating to the construction, logistics and
management of all works associated with the development and aim to minimise road
vehicle movements, traffic congestion, pollution and adverse amenity impacts. The
plan shall be produced in accordance with Transport for London’s latest Construction
Logistics Plan Guidance. The plan shall include:
a) Details of the site manager, including contact details (phone, email, postal
address) and the location of a large notice board on the site that clearly identifies
these details and a ‘Considerate Constructors’ contact telephone number;
b) The parking of vehicles of site operatives and visitors;
c) The erection and maintenance of security hoarding including decorative displays
and facilities for public viewing;
d) Wheel washing facilities;
e) A scheme for recycling/disposing of waste resulting from demolition and
construction works;
f) Any means, such as a restriction on the size of delivery vehicles, construction
vehicles and machinery accessing the site in respect of demolition and
construction, required to ensure that no damage occurs to adjacent highways
through the construction period;
g) Any means of protection of services such as pipes and water mains within
adjacent highways during demolition and construction;
h) Measures to maintain the site in a tidy condition in terms of disposal/storage of
rubbish, storage, loading and unloading of building plants and materials and
similar demolition/construction activities during demolition and construction;
i) Measures to ensure that pedestrian access past the site on the public footpaths is
safe and not obstructed during construction works;
j) Location of workers’ conveniences (e.g. temporary toilets);
k) Ingress and egress to and from the site for construction vehicles, including
vehicles associated with the delivery of materials used in the construction of the
development;
l) Proposed numbers and timings of truck movements throughout the day and the
proposed routes for their access to the site during demolition and construction of
the development;
m) Procedures for controlling sediment runoff, dust and the removal of soil, debris
and demolition and construction materials from public roads or places during
demolition and construction of the development;
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n) Details of the mitigation for dust and emissions, as well as methodology for
monitoring, during demolition and construction;
o) Measures to minimise disruption to neighbouring and adjoining residential and
commercial occupiers during demolition and construction.
The development shall be carried out in accordance with the approved details.
Reason: To safeguard the amenity of adjacent residents, to ensure efficient and
sustainable operation of the borough’s highway system and to safeguard pedestrian
and highway safety and to prevent or reduce air pollution during demolition and
construction in accordance with Policy CC2 and EC2 of the HLP and LonP Policies 6.14
and 7.14.
23. Construction Hours
No demolition or construction work, and no deliveries relating to the demolition or
construction work, shall take place on the site except between the hours of 8am to
6pm on Mondays to Fridays and 8am to 1pm on Saturdays and not at all on Sundays
and Public Holidays.
Reason: In order to safeguard the amenities of adjoining residential properties and
to ensure that the proposed development does not prejudice the amenities of the
locality in accordance with Policies CC1, CC2 and EQ5 of the LP.
24. Water efficiency measures
Prior to first occupation of each building constructed as part of the development, a
schedule of fittings and manufacturer's literature for the relevant building shall be
submitted to and approved in writing by the LPA to show that the development has
been constructed in accordance with the approved internal water use calculations of
104 litres per person per day as set out in the Silcock Dawson Sustainability
Statement dated May 2018 submitted with the planning application.
Reason: In the interests of sustainable development and in accordance with LonP
Policies 5.3 and 5.15 and HLP Policies EQ2.
25. Water supply and wastewater capacity
Development shall not commence (excluding demolition works above existing ground
level) until impact studies on the existing water supply infrastructure have been
submitted to and approved in writing by the LPA. The studies shall determine the
amount of any new additional capacity required in the water supply infrastructure
and identify a suitable connection point.
Reason: To ensure that the water supply infrastructure has sufficient capacity to
accommodate the additional demand in accordance with HLP EQ2, LonP Policies 5.13,
5.14, 5.15 and to ensure accordance with the Flood and Water Management Act
2010.
26. Sourcing of materials
No building to be provided as part of the development shall be occupied until
evidence (e.g. photographs and copies of installation contracts) has been submitted
to and approved in writing by the LPA to demonstrate that the relevant building has
been carried out in accordance with the approved sustainable sourcing of materials
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standards set out in the Silcock Dawson Sustainability Report dated May 2018
submitted with the planning application.
Reason: in order to ensure the sustainable sourcing of materials in accordance with
the LonP Policy 5.3 and the Sustainable Design and Construction SPG.
27. Solar glare
Prior to commencement of the superstructure works, measures to demonstrate that
the design and materials selected for the windows and cladding of the buildings
forming part of the development will not have an adverse effect on motorists using
the M4 Elevated Motorway shall be submitted to and approved in writing by the LPA.
The buildings of the development shall be constructed in accordance with the
approved details.
Reason: To ensure the safety for all road users on the M4 Elevated Motorway that
they are not distracted by any glint or glare.
28. Ventilation (A1-A3 uses)
Details of external ventilation equipment, including ducting, shall be submitted to and
approved by the LPA prior to first occupation of the relevant commercial units. The
external ventilation equipment shall be installed in accordance with those details
approved by the LPA.
Reason: In the interests of local amenity and visual appearance, and in accordance
with Policy CC1 and CC2 of the LP.
29. Fire Safety
Prior to commencement of the development, an update to the Fire Safety Review
prepared by FDS Consult (dated March 2018 and submitted with the planning
application) to account for the relevant fire safety standards applicable at that time
shall be submitted to and approved in writing by the LPA. The Fire Statement shall
detail how the development will function in terms of:
d) The development’s construction: the methods, products and materials used;
e) The means of escape for all building users: stair cores, escape for building users
who are disabled or require level access, and the associated management plan
approach;
f) Access for fire service personnel and equipment: how this will be achieved in an
evacuation situation, water supplies, provision and positioning of equipment,
firefighting lifts, stairs and lobbies, any fire suppression and smoke ventilation
systems proposed (including sprinklers), and the ongoing maintenance and
monitoring of these; and
g) How provision will be made within the site to enable fire appliances to gain
access to the building.
The development shall be constructed in accordance with the details approved above.
Reason: To ensure that development achieves the highest standards of fire safety,
reducing risk to life, minimising the risk of fire spread, and providing suitable and
convenient means of escape which all building users can have confidence in.
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30. Opening hours (A1-A3 and B1 uses)
The ground floor level Class A1/A2/A3 and B1 premises, as shown on the approved
drawings, shall not be open to customers other than between the hours of 0700 and
2300 on Mondays to Saturdays, and 0800 to 2200 on Sundays and Public Holidays.
Reason: To safeguard the amenities of neighbouring residents and future residents
of the development, in accordance with Policy CC1 and CC2 of the LP.
31. Aircraft Radar Mitigation Scheme
No construction work shall exceed 10m above ground level on site until a Radar
Mitigation Scheme (RMS), including a timetable for its implementation during
construction, has been agreed with the Operator (NATS) and approved in writing by
the LPA.
The RMS shall thereafter be implemented and operated in accordance with the
approved details.
Reason: In the interests of aviation safety.
32. Rooftop TV equipment details
A scheme for the provision of communal/centralised satellite and television reception
equipment to be installed on the roof of any building to be constructed as part of the
development shall be submitted to and approved in writing by the LPA prior to
development proceeding above podium level in respect of the relevant building. The
development shall be implemented in accordance with the approved scheme and the
equipment shall thereafter be retained and made available for use by all occupiers of
the development.
Reason: To ensure that the development makes appropriate provision for such
equipment, so as to not impact adversely on the character of the area and
architectural quality of the buildings, in accordance with LonP policies 7.4, 7.6 and
7.7 and HLP Policy CC1.
33. Restriction of rooftop plant and equipment
No water tanks, plant, lift rooms or other structures, other than those shown on the
approved drawings, shall be erected upon the roofs of the buildings to be provided as
part of the development without the prior written approval of the LPA.
Reason: In the interests of the appearance of the buildings and to safeguard the
appearance of the area, in accordance with LonP policies 7.4, 7.6 and 7.7 and HLP
Policy CC1.
Ends
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Appendix 2: APPEARANCES
FOR THE MAYOR OF LONDON (GLA) THE LOCAL PLANNING AUTHORITY:
Douglas Edwards QC instructed by Aaron Richardson,
(Francis Taylor Buildings) Senior Associate, TfL for the Mayor
He called
Chris Griffiths, LLB (Hons) MA IHBC Associate Director Heritage Collective
Kate Randell BSc (Hons) MA MRTPI Town Planner, GLA
FOR THE APPLICANT, L&Q:
Rupert Warren QC (Landmark Chambers) Instructed by Richard Ford and Reza
Newton, Pinsent Masons LLP
He called
Russell Brown Dip Arch RIBA FRSA Founding Partner, Hawkins Brown
LLP, 159 St John Street LONDON
Dr Chris Miele PhD MRTPI IHBC Senior Partner, Montagu Evans LLP
Mark Connell BSc (Hons) DipTP Managing Director, Sphere25,
MRTPI 101-135 Kings Road Brentwood
FOR THE LONDON BOROUGH OF HOUNSLOW:
Edward Grant of Counsel and Instructed by Solicitor to London
Isabella Buono of Counsel Borough of Hounslow
(Cornerstone Barristers)
They called
Dr Valerie Scott BA (Hons), MA, PhD BEAMS Limited, The Castle Hertford
Mr Shane Baker BTP, MRTPI London Borough of Hounslow
FOR THE HISTORIC BUILDINGS AND MONUMENTS COMMISSION FOR ENGLAND
(HISTORIC ENGLAND):
Scott Lyness of Counsel (Landmark instructed by Marisia Beard at BDB
Chambers) Pitmans and Andrew Wiseman at
Historic England
He called
Michael Alan Dunn BA, MA, Dip UD, Historic England, Canon Bridge House
IHBC Dowgate Hill LONDON
FOR THE ROYAL BOTANIC GARDENS, KEW:
James Maurici QC (Landmark Chambers) instructed by Daniel Whittle Burges
Salmon LLP, One Glass Wharf, Bristol
He called
Andrew Croft BA MA Director, Chris Blandford Associates
INTERESTED PERSONS:
Marie-Louise Rabouhans Chair, West Chiswick and
Gunnersbury Society
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Appendix 3: INQUIRY DOCUMENTS (ID)
ID1 Plans of Kew Gardens c.1785 (submitted by RBGK)
ID2 Opening Submission – Applicant (L&Q)
ID3 Opening Submission – LPA (Greater London Authority)
ID4 Opening Submission – LB Hounslow
ID5 Opening Submission – Historic England
ID6 Opening Submission – RBGK
ID7 Statement from West Chiswick and Gunnersbury Society (WCGS) – Marie-
Louise Rabouhans
ID8 HE Letter dated 25 Sept 17 to Hounslow Council
ID9 Signed SoCG on Heritage Matters (L&Q, GLA, HE, LBH and RBGK)
ID10 Westferry Printworks Appeal Decision
ID11 Kew Gardens Visitor Map
ID12 Greenwich View Comparison – 40 Years Apart
ID13 L&Q (Applicant) Response to Inspectors’ Questions
ID14 Air Quality Assessment Note (submitted by Applicant)
ID15 Waste Disposal (LBH)
ID16 RBGK Annexe to Statement of Common Ground - Position on
Environmental Statement
ID17 Oxford Dictionary Excerpt – Definition of ‘Conserve’ (submitted by RBGK)
ID18 CIL regulation 122 Compliance Note (Submitted by GLA)
ID19 Note on PTAL (prepared by Applicant)
ID20 Draft Conditions – Agreed by all parties
ID21 GLA note on Heritage Specialist Involvement in its consideration of the
Citroen Application
ID22 Kew Gardens Area Map (Submitted by RBGK)
ID23 Dentons CIL Compliance Note (Submitted by GLA)
ID24 What a Travel Plan should contain – extract from DfT’s Essential Guide to
Travel Planning (2007) – submitted by LBH
ID25 Wellesley Road Conservation Area Appraisal
ID26 L&Q Response to Inspector Queries dated 27 January 2020
ID27 Written comments on ID26
ID28 Written comments on IPLP and CC Judgment
ID29 CIL Regulation 122 Compliance Note
ID30 Section 106 Agreement Summary
ID31 Note by Greater London Authority on the sustainable travel vouchers and
car club membership
ID32 Note by Transport for London in relation to Gunnersbury Station
Improvements
ID33 Appendix 1: Sustainable Development Committee re Gunnersbury Station
ID34 Site visit route (parts 1 and 2)
ID35 Agreement under s106 signed and dated 4 March 2020
ID36 Agreed suggested conditions - final version, 5 February 2020
ID37 Applicant Note Addressing Further Matters Arising in Inquiry
ID38 Applicant agreement to the terms of the pre-commencement conditions -
6 February 2020
ID39 Closing submissions
ID40 Applicant Note to Inspector dated 28 February 2020 together with two
appendices: Unilateral obligation; Judgment in H J Banks
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POST-INQUIRY DOCUMENT (PID)
- Submissions received after the last sitting day of the Inquiry
PID1 Letter from the SoS dated 14 February 2020 requiring a further
4 weeks to consider the IPLP
PID2 RBGK response to the Applicant's note addressing tree screening
PID3 Letters closing the Inquiry in writing dated 6 March 2020
PID4 Final version of s106 Agreement
PID5 Judgment in Starbones
PID6 Submissions following the CC Decision
PID7 Letter from the SoS to the Mayor dated 13 March 2020 and annex
PID8 Further IPLP correspondence dated 13 March 2020
PID9 Adopted RBGK MPlan 2020-2025
PID10 Representations on the RBGK MPlan 2020-2025 and further delay to
the adoption of the new LonP
PID11 Consent order quashing Westferry Printworks Appeal Decision
PID12 Representations on the Consent order
CORE DOCUMENTS
APPLICATION DOCUMENTS
CDA 01 Planning Statement November 2017
CDA 02 Planning Statement Addendum May 2018
CDA 03 Community Infrastructure Levy (CIL) Amended Additional May 2018
Information Form
CDA 04 Statement of Community Involvement (SCI) November 2017
CDA 05 Daylight, Sunlight & Overshadowing Report November 2017
CDA 06 Design & Access Statement (DAS) (including Landscaping) November 2017
CDA 07 DAS Addendum (including Landscaping) May 2018
CDA 08 Drawings – Existing November 2017
CDA 09 Drawings – Amended May 2018
CDA 10 Proposed Ground Floor Plan September 2018
CDA 11 ES Non-Technical Summary November 2017
CDA 12 Environmental Statement (Vol 1) November 2017
CDA 13 Environmental Statement (Vol 1) Addendum May 2018
CDA 14 Environmental Statement (Vol 2) Heritage Townscape and November 2017
Visual Assessment Addendum
CDA 15 Environmental Statement (Vol 2) Heritage Townscape and May 2018
Visual Assessment Addendum
CDA 16 Environmental Statement (Vol 3)– Appendices November 2017
CDA 17 Environmental Statement (Vol 3) – Addendum Appendices May 2018
CDA 18 Revised Drainage Strategy & Catchments Strategy & Plan July 2018
CDA 19 Daylight, Sunlight & Overshadowing Update July 2018
CDA 20 Fire Safety Overview July 2018
COUNCIL DOCUMENTS
CDB 01 Officer Delegated Report February 2018
CDB 02 Officers Advice letter December 2017
CDB 03 REG 392 Cabinet Report September 2016
CDB 04 Council Representation to GLA Undated
NATIONAL & REGIONAL POLICY
CDC 01 National Planning Policy Framework June 2019
CDC 02 National Planning Practice Guidance September 2019
CDC 03 National Design Guide October 2019
CDC 04 LonP Consolidated with Alterations (2016) March 2016
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CDC 05 Draft New LonP Consolidated Changes July 2019
CDC 05A Draft New LonP Intention to Publish December 2019
CDC 06 Draft New LonP EiP Panel Report October2019
CDC 07 Homes for Londoners, Affordable Housing and Viability SPG August 2017
CDC 08 Housing SPG August 2017
CDC 09 Crossrail Funding SPG March 2016
CDC 10 Accessible London SPG October 2014
CDC 11 The Control of Dust and emissions during construction and July 2014
demolition SPG
CDC 12 Character & Context SPG June 2014
CDC 13 Sustainable Design and Construction SPG April 2014
CDC 14 Shaping Neighbourhoods: Play and informal Recreation SPG September 2012
CDC 15 All London Green Grid SPG March 2012
CDC 16 London World Heritage Sites – Guidance on Setting March 2012
CDC 17 Planning for Equality and Diversity in London October 2017
CDC 18 Mayor’s Environment Strategy May 2018
CDC 19 Mayors Housing Strategy May 2018
CDC 20 Mayors Transport Strategy March 2018
CDC 21 TfL Healthy Streets February 2017
CDC 22 LonP Annual Monitoring Report 15 (2017/2018) October 2019
CDC 23 2017 SHMA including Addendum to 2017 SHMA December 2019
COUNCIL AND OTHER LOCAL PLANNING POLICY AND DOCUMENTS
CDD 01 Hounslow Local Plan (HLP) September 2015
CDD 02 Inspectors Report into LP July 2015
CDD 03 Hounslow Planning Obligations and CIL SPD November 2015
CDD 04 Air Quality SPD March 2008
CDD 05 Great West Corridor Local Plan Review Regulation 19 July 2019
CDD 06 Hounslow Urban Context and Character Study August 2014
CDD 07 Great West Corridor Masterplan and Capacity Study July 2019
CDD 07A Great West Corridor View Appendix: View Assessment July 2019
CDD 08 Golden Mile Vision and Concept Plan April 2014
CDD 09 Draft Brentford East SPD October 2017
CDD 09A Brentford East Capacity Study: Final Report July 2017
CDD 10 Great West Corridor Workshop Developer Plan November 2018
CDD 11 Council Response to LonP Consultation March 2018
STATEMENTS OF CASE
CDE 01 The Applicant's Statement of Case September 2019
CDE 02 The Greater London Authority’s Statement of Case September 2019
CDE 03 The London Borough of Hounslow’s Statement of Case September 2019
CDE 04 Historic England’s Statement of Case September 2019
CDE 05 Royal Botanic Gardens Kew's Statement of Case September 2019
CDE 06 RBG Kew Letter to GLA July 2018
STATEMENTS OF COMMON GROUND
CDF 01 The Applicant, the Mayor and LBH November 2019
CDF 02 The Applicant & Historic England December 2019
CDF 03 The Applicant & RBGK December 2019
HERITAGE DOCUMENTS
CDG 01 Strand on the Green Conservation Area Appraisal (1968) January 2002
CDG 01A Strand on the Green Conservation Area Appraisal (2018) May 2018
CDG 02 Kew Green Conservation Area Appraisal (r1982) January 2002
CDG 03 Gunnersbury Park and Surrounding Area (r1990) November 2002
CDG 04 Wellesley Road Conservation Area Appraisal (r2002) December 2002
CDG 05 Kew Bridge Conservation Area Appraisal (r2004) June 2004
CDG 06 Royal Botanic Gardens Kew World Heritage Site March 2014
Management Plan 2014
https://www.gov.uk/planning-inspectorate 136
CDG 07 Kew Gardens Conservation Area Appraisal 2004
CDG 08 Historic England Good Practice Note 2: Managing July 2015
Significance in Decision-Taking in the Historic Environment.
CDG 09 Historic England Good Practice Note 3: The setting of December 2017
Heritage Assets (2nd Edition)
CDG 10 Historic England Advice Note 4: Tall Buildings December 2015
CDG 11 Royal Botanic Gardens Kew Inscription July 2003
CDG 12 Retrospective Statement of Outstanding Universal Value 2010
Royal Botanic Gardens Kew
CDG 13 Historic England: An Approach to Landscape Character October 2014
Assessment
CDG 14 ICOMOS Site Evaluation of RBGK March 2003
CDG 15 Thames Landscape Strategy, Kew to Chelsea 2002 June 2002
CDG 15A Thames Landscape Strategy Review – Brentford & Kew December 2012
CDG 16 Royal Botanic Gardens, Kew RPG List Entry 1000830 October 1987
CDG 17 Orangery List Entry 1263075 January 1950
CDG 18 UNESCO Operational Guidelines WHC.19/01 10 July 2019
CDG 19 UK Government World Heritage Site Report 2014
CDG 20 Royal Botanic Gardens Kew World Heritage Site November 2002
Management Plan 2003
CDG 21 Draft Royal Botanic Gardens Kew World Heritage Site 2019
Management Plan 2019 (consultation version)
CDG 22 Aerial Photos from 1920s and 1947, HE, Britain from Above 2019
CDG 23 R. Desmond, History of Royal Botanic Gardens Kew 1995
(London: Harvill Press, 1995)
CDG 24 Historic England - Rural Landscapes: Register of Parks and December 2017
Gardens Selection Guide
CDG 25 Historic England - Urban Landscapes: Register of Parks and December 2017
Gardens Selection Guide
CDG 26 Referral letter from the Department for Digital, Culture 8 January 2019
Media & Sport to ICOMOS
CDG 27 Extract from the Mission Report from the 41st Session of the 21-23 February
World Heritage Committee relating to the Palace of 2017
Westminster and Westminster Abbey
CDG 28 ICOMOS Technical Review of the Royal Botanic Gardens, May 2018
Kew relating to Chiswick Curve
CDG 29 ICOMOS Technical Review of the Royal Botanic Gardens, November 2018
Kew re 40/40A High Street (Albany Riverside) proposals
GREATER LONDON AUTHORITY REPORTS & CORRESPONDENCE
CDH 01 GLA Stage 1 Response January 2018
CDH 02 GLA Stage 2 Response February 2018
CDH 03 GLA Hearing Report July 2018
CDH 04 GLA Hearing Report Addendum July 2018
CDH 04A GLA Hearing Report Final Addendum August 2018
CDH 05 Letter from Mayor of London August 2018
CDH 06 Mayor of London Report Addendum 2 December December 2019
CDH 07 Highways England letter to GLA requesting referral to SoS August 2018
CDH 08 Highways England letter to GLA withdrawing objection January 2019
CDH 09 Mayor of London Response to the GWC Consultation October 2019
RELEVANT DEVELOPMENTS
CDI 01 Officer Report 1-4 Capital Interchange Way P/2018/4117 September 2019
CDI 02 1-4 Capital Interchange Way TVIA as clarified P/2018/4117 April 2019
CDI 03 Brentford Community Football Club Permission (App Ref December 2018
00703/A/P11, as amended by 00703/A/P11(NMA),
00703/A/P11(NMA1) and 00703/A/P11(NMA2)
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CDI 03A Brentford Community Stadium Officer Report December 2013
CDI 04 “Chiswick Curve” Appeal Decision & Report July 2019
APP/F5540/W/17/3180962
CDI 05 Citadel Committee Report & Permission P/2002/0568 -
CDI 06 “Chiswick Curve” HTVIA (Volume 3 of Environmental October 2016
Statement and Volume 3 Addendum)
CDI 07 “Albany Riverside” Officers Report, Addendum Report and February 2018
minutes
CDI 08 Wheatstone House Appeal Decision March 2015
RELEVANT CASE LAW
CDJ 01 Bedford Borough Council v SoS Communities and Local 2013
Government [2013] EWHC 2847 (Admin)
CDJ 02 East Northamptonshire District Council v SoS for CLG and 2015
Barnwell Manor [2014] EWCA Civ 137 [2015] 1 WLR 4
CDJ 03 R (Irving) v Mid Sussex DC [2016] EWHC 1529 (Admin) 2016
CDJ 04 Mordue v Secretary of State for Communities and Local 2015
Government and others [2015] EWCA Civ 1243
CDJ 05 R (on the application of Forge Field Society) v Sevenoaks DC 2014
[2014] EWHC 1895 (Admin)
CDJ 06 R (Williams) v Powys CC [2017] EWCA Civ 427 2017
CDJ 07 Catesby Estates Ltd v Steer [2018] EWCA Civ 1697 2018
CDJ 08 R (Shimbles) v City of Bradford [2018] EWHC 195 (Admin) 2018
CDJ 09 R (James Hall and Company Limited) v City of Bradford 2018
Metropolitan District Council [2019] EWHC 2899 (Admin)
SECRETARY OF STATE LETTERS
CDK 01A Holding Direction from the Secretary of State 20 Nov. 2018
CDK 01 “Call in” Letter from the Secretary of State 15 April 2019
LEGISLATION
CDL 01 T&CP (Mayor of London Order) 2008 2008
PROOFS OF EVIDENCE
CDM 01 Mr R. Brown (architecture) – on behalf of applicant December 2019
CDM 01A Summary proof of R. Brown December 2019
CDM 02 Dr C. Miele (heritage) – on behalf of applicant December 2019
CDM 02A Summary proof of Dr Miele December 2019
CDM 03 Mr M Connell (planning) – on behalf of applicant December 2019
CDM 03A Summary proof of Mr Connell December 2019
CDM 04 Miss K Randell (planning) – on behalf of GLA December 2019
CDM 04A Summary proof of Miss Randell December 2019
CDM 05 Mr C Griffiths (heritage) – on behalf of GLA December 2019
CDM 05A Summary proof of Mr Griffiths December 2019
CDM 06 Mr S Baker (planning) – on behalf of lbh December 2019
CDM 06A Summary proof of Mr Baker December 2019
CDM 07 Dr V Scott (heritage) – on behalf of LBH December 2019
CDM 08 Mr M DUNN (heritage) – on behalf of Historic England December 2019
CDM 08A Summary proof of Mr Dunn December 2019
CDM 09 Mr Andrew Croft (heritage) – on behalf of RBGK December 2019
CDM 09A Summary proof of Mr Croft December 2019
CDM 10 Rebuttal evidence of R. Brown – on behalf of applicant January 2020
CDM 11 Rebuttal evidence of Dr Miele – on behalf of applicant January 2020
CDM 12 Rebuttal evidence of M. Connell – on behalf of applicant January 2020
UPDATED VISUAL EVIDENCE
CDN 01 Visuals December 2019
CDN 02 Walkthrough videos December 2019
CDN 03 360 visuals December 2019
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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.