Communities secretary Robert Jenrick is under continuing pressure over “apparent bias” in his decision to approve a controversial Docklands planning application from Tory donor Richard Desmond, with calls for an investigation and even a police inquiry.
But last week’s dramatic acceptance by the minister that his decision was unlawful is just the latest twist in a complex story of East End planning brinkmanship, battles over affordable housing and intervention in local decision-making.
The site in question, the Westferry Printworks on the north side of Millwall Outer Dock, was an early product of the London Docklands Development Corporation’s drive to regenerate the area. It the largest print works in Europe Between 1982 and 2012 when it closed. leaving more than 12 acres of prime “brownfield” land.
Three years later, landowners Northern and Shell Investments proposed a 722-home development, prominently featuring four tower blocks ranging from eight to 30 storeys rising from west to east along the dock. An offer of just 11 per cent affordable homes prompted an immediate clash with Tower Hamlets Council, which argued the scheme could provide 36 per cent – a consistent thread throughout this story.
Enter “non-determination”. Planning authorities have 16 weeks under law to make a decision on large schemes, after which the applicants can appeal to a planning inspector, taking the decision out of the hands of the local planning committee. Hard-pressed town hall planners may find it difficult to assess what can be a mass of documentation. So for large applications, where there is often detailed negotiation before any decision, an extended timescale can allow agreement to be reached. Not in this case.
There’s a London twist too: the Mayor can “call-in” an application and take it over if the development would have a “significant impact” on the implementation of the London Plan, affect more than one borough, or where there are “sound planning reasons” for intervention.
In January 2016, a month after the initial 16-week period expired, Northern and Shell, rather than appealing, invited the Mayor to step in, arguing there was a need for “timely” decision-making.
The Mayor at that time was Boris Johnson, who was due to stand down at the mayoral election of May 2016. Was there time for him reach a decision before then, given the unresolved issues around affordable housing and the impact of the development on wind conditions for sailing in the dock? There was, Johnson said in February. He concluded that the council was less likely than him to act “within a timely and reasonable manner”.
With the amount of affordable housing hiked from 11 to 20 per cent, Johnson’s deputy Sir Edward Lister, now a senior Downing Street adviser, gave the development the go-ahead just a week before Sadiq Khan took over in City Hall.
Was the “core rationale” behind Johnson’s decision “not delay by the Council, but that the Council was not agreeing to the [developer’s] analysis on affordable housing that might lead to a refusal by the Council”, as alleged in a letter from Tower Hamlets ahead of legal action? And did the impending mayoral election, with Labour’s Khan the clear favourite, have any bearing? In the event, the council did not pursue legal action.
Fast forward to 2018, and a fresh application from Northern and Shell, this time for almost double the number of homes in blocks that would now rise from nine to 46 storeys. The scheme, offering 35 per cent affordable housing, responded directly to Khan’s draft London Plan call for more homes – some 3,500 a year in Tower Hamlets – and more affordable homes, said development managers Mace.
With the clock again ticking towards non-determination time, the developers this time took a different tack, by-passing City Hall and lodging a conventional appeal to national government instead. The case then saw a more unusual intervention – the communities secretary “recovering” the appeal to decide it himself, rather than let a planning inspector preside, a process used “usually either because the development is of strategic importance or has significant implications for national policy or raises novel issues,” according to the House of Commons Library.
Following the minister’s intervention the 35 per cent affordable housing offer – which met the “threshold” set by Khan for avoiding City Hall viability scrutiny – was withdrawn. Instead, the amount of affordable housing the development could support was central to the deliberations of the planning inquiry held in August last year to inform the minister’s final decision.
As with the 2016 decision, there was a deadline looming – Tower Hamlets’ impending decision to hike its Community Infrastructure Levy (CIL) rates charged on developments as a contribution to local infrastructure, which would have cost Northern and Shell an estimated £40 million,
Jenrick rubber-stamped the plans the day before the council imposed its new CIL rates. It was this, with the secretary of state confirming to the court that his decision was timed for “before the claimant adopted its new…CIL charging schedule”, that forced Jenrick to accept his decision was “”unlawful by reason of apparent bias and should be quashed”, according to lawyers in the case. There was no “actual bias”, according to government statements.
Notwithstanding the timing, the minister’s decision was already controversial, as it overturned his own inspector’s 140 page judgment that the developers’ new 21 per cent offer for affordable housing was below what could be provided, that not enough family homes were on offer, that the scheme would harm the settings of the Old Royal Naval College in Greenwich and Tower Bridge, and that it was in conflict with established planning policy that development should “step down” in height to the south and west of the dominant Canary Wharf cluster of tall buildings.
For Jenrick, the overall increase in housing numbers, with affordable homes up from 140 in the previous scheme to 282, out of a total of 1,524, trumped other concerns. But the issue of bias is not going away. Labour’s shadow housing and planning minister Mike Amesbury, has called for a full investigation of the matter by the Cabinet Office. Northern and Shell owner Richard Desmond is also reported to have raised the appeal with Jenrick at a Conservative Party fundraiser, with the minister stating that discussion of the matter would be inappropriate.
But wider questions remain, according to Isle of Dogs councillor Andrew Wood, who resigned both as Conservative group leader on Tower Hamlets Council and from the Conservative Party over the issue, and has also called on the police, the Cabinet Office and the communities select committee to investigate.
“Most developments locally offer between 25 per cent and 35 per cent affordable housing, plus paying money for new infrastructure, he says. “It’s unclear why the secretary of state accepted only 21 per cent affordable in this case, well below what other similar schemes are offering. I still don’t understand the decision.”
Wood is also concerned about the apparent abandonment of the 20-year-old “step down” policy establishing the Canary Wharf core cluster at the centre of Isle of Dogs development, and what he described at the Westferry Printworks inquiry last year as the “Manhattanisation” of the area.
“We have a housing crisis nationally, but Tower Hamlets is delivering more than its fair share of homes and most of those are on the Isle of Dogs or in adjoining areas”, he said, pointing out that the Millharbour area north of the Westferry Printworks site is now the most densely populated area in the UK, with a population equivalent to 102,000 people per square, kilometre, and that nine out of the 10 tallest residential buildings currently under construction in the UK are on the Isle of Dogs. “The main and only focus is on affordable housing percentages,” he says. “Fine, but what about the quality of life?”
Wood is no NIMBY, he says, having supported individual developments in the area, including the 2016 Westferry plans in principle. “But if you are going to build Manhattan you need to plan and provide for what that actually means.”
Tower Hamlets Labour Mayor John Biggs sounds sympathetic: “We will continue to press for a scheme that meets the needs of the community on the Isle of Dogs in terms of height and density, the provision of adequate affordable housing and infrastructure delivery”, he said after the council’s judicial review was conceded.
City Hall took the same line at the inquiry, accusing the proposal of “seeking to maximise the amount of market housing” at the expense of “making good places for people to live, protecting the historic environment and ensuring that the maximum reasonable amount of affordable housing is provided”.
The ball is now in the developer’s court, as to whether they proceed with the appeal with a new minister presiding, settle for their consented 2016 scheme, or go back to the drawing board.
And more generally, the story highlights further dividing lines between Jenrick and Whitehall and Khan and City Hall over planning and housing policy in the capital, divisions underlined by Jenrick’s savaging of Khan’s draft London Plan, This time it may be Jenrick’s fingers’ burnt.
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