CD134 - 628 Western Avenue Planning Appeal - Public Inquiry costs

On the 10 July 2019, OPDC's Planning committee resolved to refuse planning permission for a hotel-led mixed-use development at 628 Western Avenue in Park Royal, in line with officer recommendation. The planning application proposed: "Demolition of the existing building and redevelopment to provide a ground plus ten storey building and two levels of basement to provide flexible industrial uses (Use Class B2/B8) over ground and first floor, offices (Use Class B1a) at second floor and hotel (Use Class C1) uses on floor three to ten, and associated car parking, serving and all necessary enabling works."

OPDC issues the final decision on 12 July 2019 with the following reasons for refusal:

1) The proposed development would result in the inappropriate introduction of substantial town centre uses, namely a hotel (Use Class C1) and offices (Use Class B1a), within a designated Strategic Industrial Location, resulting in detrimental harm to the supply, function and operation of land protected and required for industrial, logistics and related uses that support the functioning of London's economy. Accordingly, the application is contrary to Policy 2.17 of the London Plan (2016); Policy 3.3 of the Ealing Development (Core) Strategy DPD (2012)' Policies E4 and E5 of the draft London Plan (2018) and Policies SP5 and E1 of the Second Revised Draft Regulation 19 (2) OPDC Local Plan (2018).

2) The proposed building, by way if its excessive height, scale and massing, would result in less than substantial harm to the setting and significance of designated heritage assets, namely the Grade II Listed Park Royal London Underground Station and the Hanger Hill (Haymills) Estate Conservation Area, without providing sufficient public benefit to outweigh this less than substantial harm, failing to preserve or enhance the special architectural and historic significance of these designated heritage assets contrary to Section 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act and 7.8 of the London Plan (2016); Policies 7C and 7.7 of the Ealing Development Management DPD (2013) and Policies D4 and D8 of the Second Revised Draft Regulation 19 (2) OPDC Local Plan (2018).

3) The proposed development, by way of the introduction of substantial town centre uses outside Park Royal Centre, would undermine the delivery of the placemaking objectives for the designated neighbourhood centre and in particular the creation of a more vibrant neighbourhood centre proving a diverse range of services and amenities for the wider industrial estate. Equally, the introduction of these uses within SIL would equally undermine the strategic vision for the Park Royal Industrial Estate as a place for industry and which should be protected, strengthened and intensified. Accordingly, the proposal is contrary to Policy 2.13 and Annex A (26) of the Mayor's London Plan 2016, the vision for Park Royal in Chapter 2 (para 2.1.59) of the draft New London Plan (2018), the Vision and Principle L2 of the Old Oak and Park Royal OAPF, the Spatial Vision and Narrative 7, Vision for Place P4 and P6 and Policies SP6 and P6 of the Second Revised Draft Regulation 19 (2) OPDC Local Plan (2018).

The applicant lodged an appeal against this decision, requesting the Inquiry procedure, as opposed to written representation or hearing. Despite OPDC requesting the written representation procedure, the Planing Inspectorate (PINS) subsequently agreed to deal with the case by way of public inquiry, commencing on 28 April 2020. The Inquiry is scheduled to take 6 days.

As local planning authority, OPDC are expected to provide the inquiry venue (which meets PINS specific requirements). Facilities Management have been contacted at City Hall to discuss Committee Room availability; however, if this is not possible, OPDC will need to source and cover the cost of a suitable external venue.

OPDC is a principle party to the appeal and officers will be required to prepare and present detailed technical information and opinions; most notably in respect of industrial land supply (to support reason for refusal number 1) and heritage matters (to support reason for refusal number 2). Morag Ellis QC of Francis Taylor Building will be instructed to represent OPDC at the public inquiry, as well as potentially specialist input on heritage and the sequential approach to the location of town centre uses (to support reason for refusal number 3).

A timetable for the public inquiry has been set up by PINS as follows:

• 26 February 2020: Submit Statement of Case to PINS
• 31 March 2020: Submit Proofs of Evidence
• 28 April 2020: Public inquiry opens and sites for 6 days (estimated)

Counsel fees are estimated to be up to £85,000 + VAT based on the following breakdown:

• Brief fee: £45,000
• Daily Refresher of up to £5,000 per day for 5 subsequent days (assuming inquiry runs to time): £25,000
• Pre-inquiry preparation (including conferences, preparation, drafting/amending of proofs of evidence): £20,000

External lawyers will need to work on behalf of OPDC on the S106 agreement that will need to be completed prior to the closing of the inquiry, to ensure that appropriate mitigation is secured in the event that the Planning Inspector is minded to allow the appeal. Their costs are estimated to be up to £20,000. OPDC will seek to recover these costs from the applicant, but this is not guaranteed.

A further £40,000 will be required to cover the cost of external expert witness(es) to potentially give evidence in respect of heritage matters and town centre uses, and £5,000 for administration costs such as printing of appeal documents and possible venue hire (in the event City Hall is unavailable). Where possible and subject to time constraints, expert witnesses will be procured from a TfL Framework in accordance with the OPDC Contracts and Funding Code.

It is therefore requested that the CEO approves expenditure of up to £150,000, comprising:

1. £85,000 for leading Counsel representation at the Inquiry;

2. £20,000 for external lawyers to deal with Section 106 matters; and

3. £45,000 to procure expert witnesses, admin and external venue hire (if required).

These figures are based on fee quotes from a barrister chambers and law firm from TfL's panel of external planning lawyers. These figures are estimates and may increase depending on the complexities of the case and evidence of other parties that may need to be responded to, which would require further approval.

Based on the appeal timetable, and the actions that need to be completed leading up to the inquiry, it is estimated that £60,000 of the above costs will be incurred in the remainder of the 2019/20 financial year and £90,000 will be incurred in the 2020/21 financial year.

To enable preparation for, and presentation of a robust case at the forthcoming Public Inquiry in April 2020 in order to ensure that OPDC's planning policies are properly taken into account by the Inspector when he considers the case. Leading Counsel is required in order to enable cross-examination of the appellant's witnesses, and external lawyers are required to prepare a Section 106 agreement to ensure that appropriate mitigation is secured in the event that the Planning Inspector is minded to allow the appeal.

Under section 149 of the Equality Act 2010, in making these decisions "due regard" must be had to the need to eliminate unlawful discrimination, harassment and victimisation as well as to advance equality of opportunity and foster good relations between people who have relevant protected characteristic and those who do not. Protected characteristics include age, disability, gender re-assignment, pregnancy and maternity, race, religion or belief, sex, sex orientation (and marriage or civil partnership status for the purpose of duty to eliminate unlawful discrimination only).

This duty under section 149 was met in making the recommendations to Planning Committee, which had regard to planning policies which have been subject to an integrated Impact Assessment incorporating Equalities Impact Assessment in accordance with the requirements of the Equality Act. The Planning Committee report also considered the full range of social impacts arising from the scheme including the provision of accessible hotel accommodation. The procurement process will comply with the Equality Act and set out the relevant requirements to any successful consultant/legal representation.

If OPDC's decision is not robustly presented there is a very real risk that the draft Local Plan and London Plan would be undermined and OPDC's planning interests would not be properly taken into account by the Inspector when he considers the case, thereby impacting OPDC and the Mayor's ability to carry out their statutory duties. OPDC could also incur very significant costs (in the event of a successful application for costs award by the appellant) should it be found to have acted unreasonably or unlawfully, for example by not substantiating its reasons for refusal.

The expenditure requested in this decision for up to £150,000 will be funded from the Planning Directorate Budget in the first instance. Any balance unfunded will be met from the Corporate budget.

The report above indicates that:

(i) the decision requested of the CEO falls within OPDC's objective of securing the regeneration of the Old Oak and Park Royal area and its powers to do anything it considers appropriate for the purpose of its objects or purposes incidental to those purposes, as set out in the Localism Act 2011; and

(ii) in formulating the proposal, officers have given due regard to OPDC's duty under section 149 of the Equalities Act 2010 to:

• pay due regard to the principle that there should be equality of opportunity for all people;
• consider how the proposals will promote the improvement of health of persons, health inequalities between persons and to contribute towards the achievements of sustainable development in the United Kingdom; and
• consult with appropriate bodies.

In taking the decisions requested, the CEO must have due regards to the Public Sector Equality Duty; namely the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Equality Act 2010 and to advance equality of opportunity and foster good relations between persons who share a relevant protected characteristic (race, disability, gender, age, sexual orientation, religion or belief, pregnancy and maternity and gender reassignment) and persons who do not share it (section 49 of the Equality Act 2010). To this end, the director should have particular regard to section 3 (above) of this report.

Officers must ensure that appropriate contract documentation code is put in place with and executed by OPDC in accordances with OPDC's Contract and Funding and any service provider before the commencement of the required services.